The opinion of the court was delivered by: PARSONS
JAMES B. PARSONS, UNITED STATES DISTRICT JUDGE
In this case the plaintiff, Rex Hughes, was injured when he fell off the tug boat Conti-Karla into the Mississippi River on June 28, 1986. Hughes filed suit against ContiCarriers and Terminals, Inc., the owner of the tug, seeking compensatory and punitive damages under the Jones Act, 46 U.S.C. App. section 688 and under general maritime law. This case was tried to both the court and the jury. After both sides had completed presenting their evidence but before the case was argued to the jury, the plaintiff moved for a directed verdict, claiming that the vessel, at the time of the accident and under the circumstances, was unseaworthy as a matter of law. This finding would remove from the jury any question about negligence and allow the court, sitting in Admiralty, to hold the defendant shipowner totally liable to the plaintiff, i.e. liable for all consequential damages suffered by the plaintiff as a result of the accident. The court took the motion under advisement and in the meantime sent the case on to the jury. After the jury returned a verdict of no liability, the still pending motion for directed verdict became a motion for judgment notwithstanding the verdict, the issue to which the court directs its attention in this memorandum.
After the jury was selected and throughout the trial of the case there was on display in front of the court and the jury, with consent of the parties, a four foot model of the Conti-Karla. It is a relatively large twenty year old river tug that has been used since its launching to maneuver flotilla of loaded barges on the Mississippi River and its tributaries. When in tow assemblies of three to thirty barges are arranged in tight parade formation in front of the Conti-Karla, with the tug pushing the package of barges from a position in the center of its rear. The barges are held together in tight formation and controlled from the rear by steel cables called facing wires that stretch out from two sets of large steel spindles mounted on the front deck of the tug between the cabin and its squared-off prow, each set a few feet back from each corner of the deck. When the tug is not in tow the crew keep these facing wires stretched backwards from their spindles along the narrow decks between the cabin and the edges of the sides of the tug.
These facing wires obviously are strong long cables of steel wrapped in steel strands approximately an inch or more in diameter. The strands with which they are woven are themselves quarter-inch wires of wrapped strands which, as they age from heavy use, break off at points along their stretches, leaving hooks and snags referred to by the parties in this case as burrs. When they are not in use up and around the barges they are, as stated above, stored by being stretched as well as they can be from their spindles back along the starboard side and portside decks of the tug between the tug's cabin and its edge. Because of the width of the cabin these decks are relatively narrow -- only a few feet in width. For purposes of the safety of members of the crew moving or working on these narrow side decks there are wooden banister styled railings bolted to the sides of the cabin, and along the edges of the tug there is along the side of each deck a cable threaded through the upper ends of waist high posts like a single steel cord banister. The bottoms of the posts are hinged in their moorings to the deck's edge so that section by section these safety cables and their uprights can be let down along the edges of the tug wherever work needs to be performed beyond the edge of the deck.
For example, when refuelling the tug, a task performed on the port side, sections of these safety lines can be let down so that there can be free movement between the tug's deck and the fuel service dock. Similarly, when facing wires are moved from their storages along the port and starboard decks to be stretched out and around the flotilla of barges, these boat edge banisters, like safety cables, can be let down section by section as far back as needed to enable the crew to move the facing lines over the decks' edges to their fastening positions on the barges. Generally, after the facing wires have been moved from their storages along the decks to their fastenings on the barges, the safety cables are returned with their uprights to banister positions.
A shift change in the crew and its command occurred while the tug was still at the refueling dock. It was the Pilot, the man in charge of the crew alternatively with the captain so that the captain could have rest periods, the plaintiff in this case, who when coming on duty on his shift saw that the safety line on the side of the tug open to the river, the starboard side, was down. There is some evidence that he ordered his men to put it up again, and when shortly thereafter, he found that his order had not been obeyed, rushed down to himself put the safety line back. In doing this he descended from the pilot room by the ladder which placed him on the deck near the spindle from which the face wires on the starboard side of the vessel were stretched. He was at the point farthest from the place at which it was necessary to begin returning the starboard safety line to its upright supports. Had he, after leaving the pilot room, crossed the ship on the roof of the cabin and descended the ladder to the deck near the stern of the vessel, he could have proceeded re-securing the safety line from beyond the ends of the face wires as they lay strung back from their mooring spindle in the fore of the ship. Instead, by beginning where he did he would be giving himself the task of proceeding along the stretches of the twisted face wires back to the position beyond the far end of them where he could begin replacing the safety line to its upright posts. He chose to make a trip stepping over and around twists and turns of the full length of the stretches of the face wires without the protection of the safety line along the edge of the ship instead of approaching the face wires from beyond their ends and returning the safety line ahead of himself as he would be proceeding over and around the twists and turns of the face wires. In taking his first steps back along the face wires where none of the safety line was up and available for his safety, the plaintiff became entangled in the facing wires and fell into the river, suffering in the fall the extent of his injuries.
In deliberating over granting a motion for judgement notwithstanding the verdict, the court must
". . . consider all of the evidence - not just that evidence which supports the non-mover's case - but in the light most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper . . . there must be a conflict in substantial evidence to create a jury question."
-- Boeing Co. v. Shipman 411 F.2d 365, 374-5 (5th Cir. 1969)
This requires the court to consider very carefully the facts involved in the case and come to a conclusion concerning the ...