United States District Court, Southern District of Illinois
August 2, 2001
AMERICAN RIVER TRANSPORTATION COMPANY, PLAINTIFF/PETITIONER,
CHARLES PHELPS AND AMERICAN COMMERCIAL BARGE LINE COMPANY, CLAIMANTS/RESPONDENTS.
The opinion of the court was delivered by: Michael J. Reagan, United States District Judge.
ORDER FOLLOWING BENCH TRIAL
On July 17, 1997, Charles Phelps, a deckhand employed by American
Commercial Barge Lines, was injured on a barge owned by American River
Transportation Company. In February 1998, Phelps sued American
Commercial Barge Lines ("ACBL") in the Circuit Court of Madison County,
Illinois under the Jones Act, 46 U.S.C. § 688, et seq. ACBL filed a
third party action against American River Transportation Company
("ARTCO"). Phelps then amended his state court complaint to add ARTCO as
In January 2000, ARTCO filed suit in this Court seeking exoneration
from liability or limitation of liability under 46 U.S.C. § 181, et
seq. Initially, the case was assigned to the Honorable David R.
Herndon. Judge Herndon restrained the commencement of prosecution of any
other suits involving this accident and directed all parties having
claims arising from the accident to file them in this Court on or before
March 12, 2000. Charles Phelps filed a claim on January 26, 2000.
American Commercial Barge Lines filed a claim on March 13, 2000.
Judge Herndon ordered that the claims of both Phelps and American
Commercial Barges Lines could proceed. He defaulted all other claims as
untimely-filed. Subsequently, the parties filed cross-claims,
counterclaims, and amended claims. In late October 2000, the case was
transferred to the undersigned Judge and given a firm trial setting. The
presented at trial may be summarized as follows.
ARTCO, as owner of Barge XL-737, seeks exoneration from liability for
any loss, damages, or injury arising out of the July 17, 1997 incident
In his second amended claim against ARTCO (Doc. 64), Phelps alleges
that, as owner of Barge XL-737, ARTCO owed him a duty of reasonable care
under the circumstances, and ARTCO breached that duty of reasonable care
by negligently allowing a slippery substance to get on the deck of Barge
XL-737 near the kevels, failing to warn Phelps that the slippery
substance was on the deck, and failing to coat the working area of Barge
XL-737 with non-skid paint. Phelps seeks $500,000 in damages from
Against ACBL, Phelps brings a two-count amended cross-claim based on
the Jones Act (Doc. 65).*fn1
Count I alleges that ACBL owned, operated,
and controlled the tug-boat M/V William Norman, that the William Norman
was used to perform work on the navigable waters, and that ACBL breached
the nondelegable duty it owed Phelps to maintain ACBL vessels in
seaworthy condition by (a) failing to warn Phelps of a slippery substance
on the deck of Barge XL-737, (b) failing to inspect the deck of Barge
XL-737 to ascertain if any slippery substance was present, and (c)
allowing Phelps to use a kinked or twisted face wire on the M/V William
Norman. Count II of Phelps amended cross-claim against ACBL alleges that
ACBL committed the following negligent acts or omissions: (a) failing to
warn Phelps that a slippery substance was on the deck of Barge XL-737
while knowing that this substance presented a hazard to Phelps, (b)
failing to inspect the XL-737's deck to ascertain if there was any
slippery substance present, and (c) allowing Phelps to use a wire which
was in a kinked or twisted position. Phelps seeks $500,000 plus costs
and prejudgment interest from ACBL.
ARTCO's amended counterclaim against ACBL (Doc. 26), an admiralty and
maritime claim under FEDERAL RULE OF CIVIL PROCEDURE 9(h), alleges that
any injuries to Phelps were caused by the fault, carelessness, or
negligence of ACBL, the unseaworthiness of the M/V William Norman, and/or
ACBL's failure to carry out its tasks in a safe and workmanlike manner.
ARTCO prays for indemnification from ACBL if the Court finds ARTCO liable
to Phelps, plus reasonable attorneys' fees from ACBL for the fees
incurred by ARTCO to defend against the claims of Charles Phelps.
ACBL's claim against ARTCO (Doc. 9) alleges that all of Phelps'
injuries and damages are due to ARTCO's failure to use reasonable care
and/or failure to maintain Barge XL-737 in a seaworthy condition by (a)
allowing oil to get on the deck of Barge XL-737, (b) failing to inspect
the barge deck, (c) failing to warn persons in the vicinity of the deck
kevels, and (d) failing to provide a barge with a reasonably safe walking
surface. ACBL seeks indemnity from ARTCO for any damages which may be
awarded to Phelps. Alternatively, ACBL seeks contribution from ARTCO,
i.e., recovery from ARTCO of that percentage of the judgment awarded to
Phelps which is equal to ARTCO's degree of fault in causing Phelps'
Trial commenced on June 26, 2001 and concluded on July 9, 2001.
Following trial, the parties supplemented the record with
admissions, and additional evidence. As directed by the Court, counsel
submitted proposed findings of fact and conclusions of law on or before
Monday, July 23, 2001. The Court has heard and observed the witnesses,
scrutinized the documentary evidence, and carefully reviewed all
materials submitted by counsel. In accord with FEDERAL RULE OF CIVIL
PROCEDURE 52(a), the Court now FINDS and CONCLUDES as follows.
II. Findings of Fact
1. American Commercial Barge Lines ("ACBL") owned, operated, and
controlled the Motor Vessel William C. Norman.
2. On May 27, 1997, ACBL entered into a "Fully Found Charter"
agreement with Upper River Services, Inc. ("URS"). The term of the
Charter was five months, commencing on November 1, 1997. Under this
arrangement, ACBL provided the M/V William Norman, fully crewed, for
towing services on URS' fleet on the upper Mississippi River near St.
3. URS operated a fleeting, switching, and maintenance service for
barges in the St. Paul area. URS dispatched the M/V William Norman to
move barges, transport supplies, and transport individuals, while ACBL
retained ownership and operation of the M/V William Norman.
4. At all times relevant herein, American River Transportation Company
("ARTCO") owned a box barge known as Barge XL-737.
5. Equipped with fiberglass covers, Barge XL-737 was an inland river
hopper barge used to transport dry cargo products on the inland rivers,
including the Mississippi River.
6. On June 13, 1997, Barge XL-737 was cleaned, inspected, and repaired
at ARTCO's facilities in New Orleans, Louisiana. The inspection included
scrutiny of Barge XL-737's deck and deck fittings. Repairs were made,
included welding on the port stern corner of the barge.
7. On June 18, 1997, Barge XL-737 was moved into the tow of an ARTCO
line boat, the M/V American Heritage, to begin traveling north on the
Mississippi River. Barge XL-737 was empty during this northward
8. In St. Louis, Missouri, Barge XL-737 (still empty) was taken from
the tow of the M/V American Heritage and placed in the tow of another
ARTCO line boat, the M/V Cooperative Vanguard.
9. Barge XL-737 was in the tow of the Cooperative Vanguard until it
arrived at URS in St. Paul, Minnesota on July 7, 1997.
10. The general procedure and practice during the time Barge XL-737 was
in tow on this northward trip was to check the condition of the XL-737 at
least once during each six-hour watch. This check including inspection of
fittings on the barge deck. Upon arrival at URS in St. Paul, the XL-737
was checked again.
11. ARTCO's Barge Maintenance Supervisor, Mike Wade, received no
reports of any problems with Barge XL-737 at any time after June 13, 1997
(when the barge was cleaned, inspected, and repaired in New Orleans) up
through July 7, 1997 (when the barge was delivered to URS).
12. No barges surrounding Barge XL-737 were pumped while the tow was en
route from New Orleans to St. Paul.
13. Barge XL-737 was dropped at Mile 839 when it arrived at URS on July
14. The normal practice when a barge, like those in the tow of the
Cooperative Vanguard in July 1997, was dropped at URS was that fleet boat
personnel would (a) inspect the barge and (b) replace any "hard" rigging
on the tow with soft lines. Barges then would be dispersed into URS
15. ARTCO received no notification or any problem regarding Barge
XL-737 when it arrived, was inspected, and was accepted into the URS
fleet on July 7, 1997.
16. Barge XL-737 was moved at least twice within URS' fleeting facility
between July 7, 1997 (when it was dropped at URS by the Cooperative
Vanguard) and July 17, 1997 (the date of the accident involved herein).
17. On July 9, 1997, a barge breakaway occurred at the URS fleeting
area. Twelve loaded barges broke away from the Kaposia Fleet. The
Kaposia Fleet was operated by URS. Thereafter, URS hired an independent
marine surveyor — Gerald E. Chapman of Manley & Manley, Inc.
— to survey and report on any damage from the breakaway.
18. Chapman has worked in the marine industry for 35 years, has a
license to operate a towboat, has attended numerous courses and seminars
on safety involving vessels on the inland river system, and has served as
supervisor of a barge cleaning and repair facility.
19. As part of the inspection following the breakaway, Chapman
conducted an inspection of Barge XL-737 during the daylight hours of July
10, 1997. At that time, Barge XL-737 was on the outside of a URS fleet
located at Mile 834. The barge was positioned in a manner such that its
starboard and stern ends were open, and at least one barge was located on
its port side.
20. Chapman visually inspected the open stern end as the tug approached
the barge from the down river side. Then he boarded the XL-737, walked
around the entire barge, inspected the deck fittings, and stood on each
corner of the barge to check for damage.
21. Chapman, who carefully inspected the port and starboard corner
saw no oil or other slippery substance on the deck of the
XL-737 on July 10, 1997. Chapman did report minor damage to the starboard
side of Barge XL-737, which URS agreed to repair at no cost to ARTCO.
That repair work was done at a later date, after the incident at issue
22. ARTCO's Barge Maintenance Operator Mike Wade received no
information, from Chapman or otherwise, that any foreign substance was
present on the deck of Barge XL-737 on July 10, 1997.
23. In July 1997, Charles Phelps was working as a lead deckhand or
"leadman" aboard the M/V William Norman.
24. Phelps had been employed by ACBL since 1988 and was an experienced
25. On July 16 or 17, 1997, URS dispatched the M/V William Norman to move
some barges in its fleet.
26. Just after midnight on July 17, 1997, the William Norman pulled up
to an empty box barge located in the URS fleet and began the process of
"facing up" to the empty barge. The empty barge was ARTCO's Barge
27. The crew of the M/V William Norman in the late night hours of July
16, 1997 and the early morning hours of July 17, 1997 consisted of Thomas
Ball (the pilot), Phelps (the leadman), and Michael Craig (the
deckhand). Ball, Phelps, and
Craig were working the aft or "after watch"
— noon to 6:00 p.m. and midnight to 6:00 a.m.
28. Craig was the crew member immediately subordinate to Phelps.
Phelps had the authority and responsibility to direct Craig.
29. As part of facing up to the barge, Phelps needed to secure several
loops or "bites" of face wire around the kevels on Barge XL-737.
30. The empty XL-737 was riding higher in the water than the M/V
William Norman. Two sets of triangular steps known as "tow knees" were
used to access the barge from the William Norman.
31. As an initial step in the process of facing up, a rope (sometimes
referred to as a "capstain line") was run between the sets of tow knees
and fastened around the center kevel on the stern of Barge XL-737. This
process commenced just after midnight on July 17, 1997.
32. The area where the M/V William Norman was facing up to Barge XL-737
was well lit. Flood lights were shining down on the work area. Phelps
also was equipped with a flashlight. He was wearing steel-toed boots and
33. Phelps was attempting to secure two bites or loops of face wire to
each of two corner kevels on Barge XL-737. Phelps walked up the port tow
knee steps, stepped on to the deck of Barge XL-737, walked over to the
port corner of the barge, straddled the port corner kevel, and placed one
bite of wire around the kevel without difficulty. That wire was attached
to the port winch.
34. Phelps then took a few steps back toward the port tow knee, lifted
the second bite of the port face wire, and returned to the port corner
kevel. Phelps straddled the kevel, so that his right foot was roughly
one inch from the edge of the barge. He was holding the second bite of
face wire in both hands, while he looked around for deckhand Craig.
35. Phelps needed Craig's assistance to pull slack out of the port wire
due to kinks in the wire. Craig had left his position on the port side
of the M/V William Norman and was not present to pull slack for Phelps.
36. The kinks in the port winch wire on the M/V William Norman caused
the wire to be heavier in Phelps' hands and added strain on his back.
Phelps had used that wire before and had reported the kinked condition of
the wire to the mate on the William Norman.*fn4
37. Craig was not where Phelps expected him to be, as Phelps looked
around for Craig's help. Phelps stood there for a "couple of seconds"
and was about to yell for Craig, when Phelps' feet slid out from under
him. Phelps fell backwards onto the deck and rolled off the edge of the
Barge XL-737 into the river. His left arm was caught on the horn of the
kevel and fractured near the elbow. Craig was on the starboard side of
the William Norman when he heard the splash of Phelps falling into the
38. Pilot Tom Ball was on watch and witnessed Phelps fall into the
river. Ball sounded the general alarm. Phelps was pulled out of the
river, taken to the dock, and transported to a hospital in St. Paul,
Minnesota. After waiting roughly three hours for treatment, during which
time a variety of tests were run,*fn5 Phelps underwent
surgery on his arm. He spent three days at the St. Paul, Minnesota
hospital where surgery was performed.
39. Pilot Ball completed an accident report ("Vessel Employee Personal
Injury Report") and faxed it to ACBL's office. The report contains no
reference to any oil on the deck of Barge XL-737. Ball was unaware of
the presence of oil on the deck at that time.
40. In the light of day on July 17, 1997, crew members of the M/V
William Norman located Barge XL-737, boarded the barge, and took
photographs of the deck. Those photographs show oil on both stern corner
deck fittings, including the area in which Phelps was standing when he
41. Ball both saw and felt the oil on the deck of Barge XL-737 at that
42. Jerry Oleson, chief engineer on the William C. Norman on the date
of the accident, climbed aboard Barge XL-737 and saw and felt oil on the
43. Captain Jerry Beasley, the other pilot of the M/V William Norman,
and Elwin J. Elmore, a mate on the M/V William Norman, also saw oil in
the area of the deck where Phelps fell.
44. The oiling and lubricating of ratchets is (and was in July 1997) a
common practice while barges are being moved and tows are being broken
and coupled to go through river locks.
45. In effect in July 1997 were certain safety rules promulgated by
ARTCO, including Rule 41, which provided:
"All areas of the deck, including all gangways and
walkways, must be kept free of all oil, grease, debris
and foreign substances of every type and description.
Report any such conditions at once to your
supervisor. Clean up such areas with proper
materials, and/or sprinkle sand on any slippery or icy
46. ARTCO's boats were provided with rags and absorbent pads to clean and
remove oil from barge decks, whenever needed.
47. Barge XL-737 was stocked with a sufficient supply of rags and
cleaning materials in June and July 1997.
48. The crew members of the M/V Cooperative Vanguard were aware of Rule
41 in July 1997. ARTCO's safety rules were posted in the crew lounge of
the M/V Cooperative Vanguard at that time.
49. No evidence presented at trial established that any ratchets or
other equipment aboard Barge XL-737 were lubricated with oil or grease at
any time before Barge XL-737 arrived at URS on July 7, 1997.
50. No oil, grease, or other foreign substance was present on the deck
of Barge XL-737 when it arrived at URS on July 7, 1997. No such
substance was present on the deck of Barge XL-737 on July 10, 1997.
51. Charles Phelps did not see oil or other foreign substance when he
stepped aboard the deck of Barge XL-737 on July 17, 1997.
52. The value of ARTCO's interest in Barge XL-737, immediately after the
accident, did not exceed the sum of $110,000.
53. In July 1997, ACBL had in place certain safety rules and procedures
that applied to the crew on the M/V William Norman. A section of written
rules entitled "General Rules and Safe Work Practices" includes the
"Replace face wires, wing wires, and stationary wires
when worn, or if they have kinks or twists."
54. According to pilot Ball, the practice on ACBL boats was not to
change every face wire that had a kink but rather to change a face wire
if the kinks became
dangerous in the opinion of the crew and/or captain.
55. Despite the fact that Phelps reported the kinked port face wire to
the mate of the M/V William Norman prior to July 17, 1997, the wire was
56. ACBL Safety Rule 1.4(10) provides:
"Always inspect equipment and safety devices before
operating and immediately report any defects to your
supervisor or employee in charge."
57. Neither Phelps nor Craig recalled making any such inspection before
they began facing up to Barge XL-737 on July 16 or 17, 1997.
58. Another ACBL safety rule admonishes:
"When possible, all wires and lines should be handled
from the line deck of a barge."
59. The line deck of the barge does not include the area on the outside
of a kevel. Just prior to falling, Phelps was standing over the port
stern kevel with his right foot on the outside of the kevel,
approximately one inch from the edge of the barge. Phelps had secured
face wires around corner kevels using this same straddling method
previously. ACBL had never reprimanded him for this conduct.
60. Charles Phelps was born on September 2, 1952. He was 44 years old
when he sustained the injury involved herein. He then was 6', 4" tall,
weighed 210 pounds, and smoked two packs of cigarettes a day.
61. In the July 17, 1997 accident, Phelps badly injured his left arm.
Specifically, he sustained a super condylar fracture of his left distal
humerus. Initially, he was treated at St. Paul/Ramsey Medical Center in
62. At St. Paul/Ramsey, no open wounds were noted, a long splint was
applied, and x-rays revealed a transverse fracture through the epicondyles
extending into the articular surface with slight posterior displacement
of the distal fragment and soft tissue swelling.
63. On July 18, 1997, Phelps underwent surgery involving a screw and
plate fixation of fracture of the distal humerus, a screw and wire
fixation of the olecranon fracture, and a 3.5 reconstruction plate of the
distal humerus. In layman's terms, two plates were inserted in Phelps'
arm, one of which was held in place with six screws and the other which
was held in place with five screws. Additionally, three separate screws
were inserted with a cannulated wire.
64. On July 19, 1997, Phelps was transferred from St. Paul, Minnesota
to Belleville, Illinois, where he came under the care and treatment of
Dr. Stephen Kappel, a board certified orthopedist. Phelps was under the
care and treatment of Dr. Kappel from July 30, 1997 until April 8, 1998.
65. Dr. Kappel first examined Phelps on July 30, 1997, approximately
two weeks after Phelps sustained his injury. Excellent alignment was
noted, all nerves were intact, Phelps was able to make a full fist, was
able to extend his fingers straight out, and had 40/70 degrees of
66. On August 20, 1997, Kappel recommended a home exercise program. On
September 3, 1997, the fracture line was no longer visible on x-rays.
Physical therapy was recommended.
67. From September 5, 1997 to October 10, 1997, Phelps participated in
sixteen physical therapy sessions.
68. On January 2, 1998, Phelps underwent an out-patient procedure
(performed by Dr. Kappel) to remove certain hardware — the olecranon
wire fixation — from his left elbow, due to tenderness over the
knot on the tension band wire which had been implanted. The fracture
healed nicely at that time, and no complications or abnormal
findings were noted during the surgery. Two plates and eleven screws
remain in Phelps' left arm today.
69. On April 2, 1998, Dr. Kappel sent Phelps to the "Back-to-Work"
Center at St. Elizabeth's Hospital in Belleville, Illinois, for a
functional capacity evaluation. The report generated from that
evaluation concluded that Phelps was unable to perform the duties of a
lead deck hand. The Center recommended that Phelps be retrained for a
"more sedentary position with no repetitive lifting above chest level."
Dr. Kappel agreed with this recommendation and testified at trial that
these limitations are permanent.
70. Phelps reached maximum medical improvement ("maximum cure") on April
71. As a result of the injuries sustained by Phelps in the July 17,
1997 incident, ACBL paid Phelps' medical expenses totaling $32,299.53 and
living expenses totaling $5,320.*fn6
72. Dr. Kappel last saw Phelps on March 17, 1999, at which time he had
residual weakness and sensitivity, despite excellent range of motion.
Dr. Kappel recommended vocational rehabilitation for retraining and
recommended work involving light-to medium-range physical demands.
Additionally, Dr. Kappel opined that Phelps, on a permanent basis, would
suffer from increased sensitivity (because his ulnar nerve was transposed
as part of his surgical treatment) and residual weakness in his left
73. Dr. Mitchell B. Rotman, an orthopedic surgeon from St. Louis
University Hospital in St. Louis, Missouri, conducted an independent
medical examination of Phelps, at the request of ARTCO. Dr. Rotman
specializes in the treatment of arm and hand injuries.
74. Dr. Rotman produced two reports, the first in February 2001 and the
second in March 2001. When he completed the first report, Dr. Rotman had
not yet examined Phelps, but he had reviewed Phelps' x-rays and related
records. Dr. Rotman's impression in February 2001 was that there was no
objective evidence of ulnar nerve dysfunction in Phelps' hand or arm,
that Phelps' injury had healed well, and that Phelps could return to
"full activities as a lead deck hand."
75. Dr. Rotman examined Phelps on March 10, 2001. In his report
following that examination, Dr. Rotman noted that Phelps had an excellent
result from the elbow fracture surgery. Specifically, Phelps had smooth
motion in the left elbow, had normal ulnar nerve function, had no
swelling at the elbow, had full supination and pronation bilaterally, had
only slight atrophy in the elbow region (no atrophy in the hand), had
excellent hand strength, normal grip strength, equal pinch strength on
both sides, and could easily make a full fist.
76. At trial, Dr. Rotman opined that, to a reasonable degree of medical
certainty, Phelps now can return to work in any capacity, even heavy
barge work. Rotman opined that Phelps will not require future medical
treatment and is not more susceptible to arthritis due to his injury.
77. Dr. Rotman did note that Phelps has a 14 cm. scar over the back of
his left elbow and complains of sensitivity in the area where the nerve
78. The Court finds that when Phelps was released from Dr. Kappel's
could not return to the demanding work of a deckhand, which
requires heavy lifting (exertion of more than 70 pounds of force),
standing for long periods of time, stooping, bending, kneeling, using
ladders, climbing cables, tightening wires, repetitive arm motion, and
working/balancing on unstable surfaces.
79. The Court further finds that, as of today, Phelps is incapable of
performing the duties of a deckhand and incapable of heavy-duty work
(including barge work).
80. Since April of 1998, Phelps has been (and is) capable of returning
to work in the light and medium job categories.
81. Prior to the July 17, 1997 accident, Phelps earned these wages at
82. Phelps currently is 48 years old. He has a life expectancy of 28.9
83. Phelps completed high school plus two years of college courses at
Southern llinois University. He served in the United States Air Force
after high school. Before working for ACBL, Phelps held employment for
two or three years as an electronics technician and for three additional
years operating the closed-circuit televisions at Fairmont Park Race
84. After being released by Dr. Kappel, Phelps unsuccessfully sought
employment. First, Phelps requested (three times) to return to work at
ACBL. ACBL would not rehire him. Next, Phelps contacted the State of
Illinois' Department of Rehabilitation Services ("DORS"), but he was told
that he was not sufficiently disabled for their resources. Then, Phelps
applied for various positions at Home Depot, Kohl's, Radio Shack, Circuit
City, and Lowe's. None of those applications resulted in him securing
85. In early 2000, Phelps was hired by an individual named Gunther Feix
who provided training in the sale, repair, and reclamation of computers.
86. Phelps earned no wages in the years 1998 and 1999. As of July
2000, Phelps had earned $300 for that year ($210 for computer work with
Feix and $90 for lawn mowing services). No records were provided to
document Phelps' additional wages (if any) for Feix in the remainder of
87. Currently, Phelps is finalizing plans to open his own computer
88. As a result of the July 17, 1997 injury, Phelps incurred medical
bills totaling $32,299.53. Of that total, $26,126.38 constitutes
89. As a result of the July 17, 1997 injury, Phelps sustained past wage
losses (for the period of 7/18/97 to 7/31/01) totaling $128,057. The
Court reaches that figure by the calculations delineated below, in ¶
90. The Court starts with Phelps' 1996 wages ($28,910). Using that
figure as a base wage rate, the Court factors in a 3% wage increase per
annum. From January 1, 1997 through July 17, 1997 (the date of the
injury), Phelps earned $19,550. From July 18, 1997 until December 31,
1997, Phelps would have earned another $13,706. From 1998 through 2000,
he would have earned $30,671, $31,591 and $32,539, respectively.
Pro-rating estimated wages for 2001 (from January 1, 2001 through July
31, 2001) leads to a figure of $19,550. Combining $13,706, $30,671,
$31,591, $32,539 and $19,550 produces a total of $128,057 in past wage
91. As a result of the July 17, 1997 injury, Phelps no longer target
shoots with his bow, cannot lift heavy objects, cannot climb ladders, and
cannot swim as well as he used to. His left arm bothers him if he
holds it up to read a book for an extended period. The injury also
adversely affected his sex life. Phelps has a scar on his left arm from
the surgical procedure.
92. The scarred area of Phelps' arm is sensitive if it is bumped. He
avoids roller coaster rides and other activities that might result in his
arm being bumped or jarred. Phelps is able to cut grass and is able to
drink left-handed. He does not take (and has not taken for several
years) prescription medication for arm pain. He takes aspirin, as
needed, if he over-exerts himself.
93. To calculate future wage loss, the Court must make four
determinations: (1) Phelps' base wage level; (2) the length of time his
future wages will be lost; (3) the percentage of impairment of Phelps'
earning capacity; and (4) the appropriate discount rate.
94. The appropriate base wage level is $28,910 (what Phelps earned in
1996, the year before the accident). It is reasonable to expect that
Phelps would have enjoyed 3% annual increases in his wages.*fn7 The
Court further finds that Phelps would have worked until age 65. Having
carefully considered all the medical evidence, including the testimony of
Drs. Kappel and Rotman (and choosing to accept Dr. Kappel's testimony as
more credible and more amply supported by the record), the Court finds
that the July 17, 1997 accident impaired Phelps' earning capacity by
40%. Finally, the Court uses a discount rate of 3.36% to reduce future
wages to net present value.*fn8
95. Applying this methodology, the first year of the income stream
(pro-rated from August 1, 2001 to December 31, 2001) equals $13,965. Lost
wages were awarded under ¶ 89 up through July 31, 2001. The last
year of the income stream is pro-rated from January 1, 2017 to September
2, 2017, when Plaintiff attains age 65. The total income stream to be
discounted to net present value is $691,853.*fn9 Applying the discount
rate of 3.36% to this total ($691,853) yields a net present value of
$506,995 for the stream of future earnings.
96. Factoring in the impairment of Phelps' earning capacity percentage
(40%), the Court finds that Phelps' future wage loss, reduced to present
value, totals $202,798 ($506,995 x 40%).
97. The Court finds that, as the result of the July 17, 1997 accident,
damages for past pain and suffering are $50,000,
damages for disfigurement are $10,000, and damages for
disability (due to weakness and sensitivity of left
arm plus the effect on Phelps' hobbies and daily
living activities) are $75,000.
98. The Court awards no damages for future medical expenses and notes
III. Conclusions of Law
1. The Constitution of the United States extends to Article III courts
the power to hear "all Cases of admiralty and maritime Jurisdiction."
Weaver v. Hollywood
Casino-Aurora, Inc., F.3d 2001 WL 694719, *2 (7th
Cir. June 21, 2001), citing U.S. Const. art. III, ¶ 2. That power was
codified at 28 U.S.C. § 1333(1), which provides for original
jurisdiction of any civil case of admiralty or maritime jurisdiction.
2. ARTCO, the named plaintiff/petitioner herein, seeks to be exonerated
completely from liability or to have its liability limited under federal
laws providing for limitation of a vessel owner's liability. This case
falls within federal admiralty and maritime jurisdiction, and the Court
may exercise subject matter jurisdiction under 28 U.S.C. § 1333.
3. The Limitation of Liability Act, 46 App. U.S.C. § 181, et seq.,
gives shipowners the right to seek limitation of their liability for
4. The Limitation Act vests in federal courts exclusive jurisdiction,
pursuant to their admiralty jurisdiction under 28 U.S.C. § 1333(1), to
decide whether a shipowner's liability should be limited. In re McCarthy
Bros., 83 F.3d 821, 826 (7th Cir.), cert. denied, 519 U.S. 590 (1996).
5. Once a limitation action is properly filed in federal district
court, the court retains exclusive jurisdiction over the matter, and all
claims against the shipowner must cease. McCarthy Bros., 83 F.3d at 826.
A shipowner who meets all statutory prerequisites for a limitation action
may still lose the federal admiralty forum if a certain abstention
doctrine applies. Id. at 828 ("[W]here the case falls within the Langnes
rule of abstention, the district court permits proceedings in state court
to go forward on the question of liability and retains jurisdiction over
any question that might arise as to the shipowner's right to limit his
6. The doctrine of Langnes abstention was inapplicable to the instant
suit, and this Court has proceeded to decide the issues of liability and
7. Once all potential claimants are before the federal court in a
Limitation Act proceeding, the court must determine (a) whether a loss,
in fact, occurred, (b) whether the loss was due to the negligence of the
owner, and (c) whether the loss occurred with the owner's privity or
knowledge. 24 Tulane Maritime Law Journal 659, 662 (Spring 2000).
8. 46 App. U.S.C. § 183(a) provides:
"The liability of the owner of any vessel . . . for
any . . . act matter, . . . loss, damage, or
forfeiture, done, occasioned, or incurred, without the
privity or knowledge of such owner . . ., shall not .
. . exceed the amount or value of the interest of such
owner in such vessel, and her freight then pending."
9. The phrase "without the privity or knowledge of such owner" implies
that the owner be unaware of the fault in his vessel that caused an
accident. United States v. Ohio Valley Co., Inc., 510 F.2d 1184, 1188
(7th Cir. 1975).
10. Once an injured seaman establishes that negligence or
unseaworthiness caused his injuries, the burden shifts to the vessel
owner to establish lack of privity or knowledge of the dangerous
condition that caused the injury. Brister v. A.W.I., Inc., 946 F.2d 350,
355 (5th Cir. 1991).
11. If a petitioner, such as ARTCO, is entitled to exoneration, "the
issue as to limitation of liability is of no consequence," because the
"doctrine of limitations of liability presupposes that a liability exists
which is to be limited. If no liability exists there is nothing to
limit." Petition of Atlass, 350 F.2d 592, 593 (7th Cir. 1965), cert.
denied, 382 U.S. 988 (1966). So, in a proceeding to
limit liability, two duties are imposed upon the court:
"The first is to ascertain whether any liability
exists. If it is found to exist the second duty
arises, which is to ascertain whether the loss or
damage was occasioned or incurred without the `privity
or knowledge' of the owner of the ship. If no
liability is found to exist, the absence of all
liability is to be decreed, and there the matter
12. The Jones Act, 46 App. U.S.C. § 688, creates a cause of action
for seamen who are injured by the negligence of owners of unseaworthy
vessels. Rufolo v. Midwest Marine Contractor, Inc., 6 F.3d 448, 450 (7th
Cir. 1993), overruled on other grounds, 511 U.S. 1050 (1994). Congress
intended the Jones Act to give seamen an available remedy for injuries
sustained in an inherently dangerous profession. Kelley v. Sun Transp.
Co., 900 F.2d 1027, 1031 (7th Cir. 1990).
13. The Jones Act gives an injured seaman the litigation options of (1)
suing directly under the federal court's general admiralty jurisdiction,
or (2) suing for damages at law, in either (a) state court or (b) a
federal district court under the Jones Act. Wingerter v. Chester Quarry
Co., 185 F.3d 657, 666 n. 5 (7th Cir. 1999).*fn10
14. Claims brought under the Jones Act and claims of unseaworthiness
under general maritime law "are distinct causes of action, the elements
of which differ somewhat." Wingerter, 185 F.3d at 666. See also
Brister, 946 F.2d at 355 (contrasting Jones Act and unseaworthiness
15. To qualify as a seaman under the Jones Act, an employee's duties
must contribute to the function of the vessel or to the accomplishment of
its mission. Weaver, 2001 WL 694719 at *6, quoting McDermott Int'l, Inc.
v. Wilander, 498 U.S. 337, 355 (1991). Additionally, the seaman must have
a connection to a vessel in navigation that is substantial in terms of
both duration and nature. Id., citing Chandris v. Latsis, 515 U.S. 347,
368 (1995). Finally, although the requirement is not expressly stated in
the Jones Act itself, the Supreme Court has long required that the injury
occur through the employee's relationship to a vessel on a navigable body
of water. Id.
16. Charles Phelps, claimant herein, is a Jones Act seaman.
17. Only the seaman's employer is a proper defendant on a Jones Act
claim. Wingerter, 185 F.3d at 666. Phelps brings Jones Act claims against
ACBL, his employer.
18. Under the Jones Act, the employee/seaman's burden to prove
causation is quite light. Indeed, this burden has been described as
"featherweight." Cella v. United States, 998 F.2d 418, 427 (7th Cir.
19. A Jones Act seaman (Phelps) must merely establish that the acts or
omissions of his employer (ACBL) played some part, no matter how small,
in producing the seaman's injury. Cella at 428. This standard of
causation has been called the "producing cause" standard.
20. A Jones Act seaman must act with ordinary prudence under the
circumstances of his employment, which include not only his reliance on
his employer to provide a safe work environment but also
experience, training, or education. Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331
, 339 (5th Cir. 1997).
21. In an action under the Jones Act, a seaman's negligence is not a
complete bar but, instead, reduces his damages as comparative fault. See
Kelley v. Sun Transp. Co., 900 F.2d 1027, 1029 (7th Cir. 1990) (Noting
that, in Jones Act case, the plaintiff's recovery is reduced under a
contributory negligence analysis: "The inquiry at trial should endeavor
to apportion responsibility for the injury."). The fact that a Jones Act
seaman "may have been guilty of contributory negligence shall not bar a
recovery, but the damages shall be diminished . . . in proportion to the
amount of negligence attributable" to the seaman. Id. at 1031, quoting
45 U.S.C. § 53.
22. In addition to his Jones Act claim against ACBL, Jones alleges that
ACBL breached its duty to maintain its vessel, the M/V William Norman, in
a seaworthy condition.
23. The admiralty doctrine of unseaworthiness imposes an absolute,
nondelegable duty on a shipowner to provide a vessel and its equipment,
appurtenances, and crew reasonably suited for their intended purposes.
Brister, 946 F.2d 355. Accord Italia Societa per Azioni di Navigazione
v. Oregon Stevedoring Co., 376 U.S. 315, 317 n. 3 (1964). Accordingly,
the seaworthiness issue is treated like a breach of warranty, rather than
the narrower duty-breach inquiry for negligence claims. Brister, 946
F.2d at 355.
24. The doctrine of unseaworthiness imposes liability without fault.
Hughes v. ContiCarriers and Terminals, Inc., 6 F.3d 1195, 1197 (7th Cir.
1993). Accord Brister, 946 F.2d at 355 ("Unlike a Jones Act claim,
unseaworthiness is `predicated without regard to fault or the use of due
care.'"). However, there still must be a defect in the vessel for a
claimant to succeed on an unseaworthiness claim. Hughes, 6 F.3d at
25. To recover damages under an unseaworthiness theory, a seaman must
show that an unsafe condition on the vessel caused his injury. Hughes, 6
F.3d at 1197. "To establish the requisite proximate cause in an
unseaworthiness claim, a plaintiff must prove that the unseaworthy
condition played a substantial part in bringing about or actually causing
the injury and that the injury was either a direct result or a reasonably
probable consequence of the unseaworthiness." Brister, 946 F.2d at 355,
quoting Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354 (5th
Cir.), cert. denied, 488 U.S. 968 (1988).
26. The standard for unseaworthiness is not perfection but, rather,
reasonable fitness or suitability for the vessel's intended service.
Hughes, 6 F.3d at 1197. Unseaworthiness may arise from the employment of
an unsafe method of work, "such as the shipowner's failure to provide
adequate equipment for the performance of an assigned task or necessary
safety equipment." Vargas v. McNamara, 608 F.2d 15
, 18 (1st Cir. 1979).
27. A vessel's duty to furnish seamen with tools reasonably fit for
their intended use (the duty of seaworthiness) is absolute and is
completely independent of the vessel owner's duty to exercise reasonable
care under the Jones Act. Michalic v. Cleveland Tankers, Inc.,
364 U.S. 325, 327 (1960).
28. Against ARTCO, Phelps brings negligence claims. The standard for
negligence under general maritime law is higher than the featherweight
burden of proving causation in a Jones Act case. In re Cooper/T. Smith,
929 F.2d 1073, 1076 (5th Cir.),
cert. denied, 502 U.S. 865 (1991).
29. To prove negligence against ARTCO, Phelps had to demonstrate that
ARTCO owed him a duty, that ARTCO breached that duty, that Phelps
suffered an injury as a result of that breach, and that a causal
connection existed between ARTCO's conduct and Phelps' injury. In re
Cooper, 929 F.3d at 1077.
30. ARTCO owed Phelps a duty to exercise reasonable care under the
circumstances. See, e.g., Kermarec v. Compagnie Generale
Transatlantique, 358 U.S. 625, 632 (1959) ("the owner of a ship in
navigable waters owes to all who are on board for purposes not inimical
to his legitimate interests the duty of exercising reasonable care under
the circumstances"). There is no evidence that ARTCO breached that duty
or that any conduct by ARTCO caused Phelps' injury.
31. There was no oil or other foreign substance on the deck of Barge
XL-737 when it arrived at URS on July 7, 1997. There was no oil or other
foreign substance on the deck of Barge XL-737 three days later when
Chapman inspected the barge, including the deck fittings.
32. There is no evidence whatsoever that any ratchets were lubricated
on the deck of Barge XL-737, while the barge was en route from New
Orleans to St. Louis to St. Paul. Even if such lubrication did occur on
XL-737's northward journey, no oil, grease, or other foreign substance
remained on the barge deck when the XL-737 was delivered to URS in St.
Paul ten days before Phelps' accident.
33. The oil near the port stern kevel where Phelps slipped on July 17,
1997 resulted from actions taken after July 10, 1997 while Barge XL-737
was in URS' custody. During that time period, the XL-737 was moved
around (not by ARTCO) within URS' fleet.
34. ARTCO neither caused nor contributed to the presence of the oil on
Barge XL-737 and had no knowledge of the existence of that oil. The
evidence in the record did not prove who caused the oil to be present on
the XL-737 or how that oil was placed on the barge deck. Clearly,
however, ARTCO had no role in the oil getting or staying there and had no
knowledge of its presence.
35. Stated simply, there is no causal connection between any conduct by
ARTCO and the injuries or damages sustained by Phelps. The first two of
Phelps' three negligence claims against ARTCO — (1) that ARTCO
breached its duty of reasonable care by allowing oil to get on the deck
near the kevel and (2) that ARTCO breached its duty of reasonable care by
failing to warn Phelps of the oil near the kevel — fail.
36. Phelps' third negligence claim against ARTCO — that ARTCO
breached its duty of reasonable care by failing to paint the working area
of Barge XL-737 with non-skid paint — also fails.
37. Testimony at trial established that it was quite uncommon for a
covered hopper barge to be coated with non-skid paint. The use of
non-skid paint on such barges is not standard industry practice.
Moreover, maintaining non-skid paint would be nearly impossible on a
barge deck in the difficult environment in which Barge XL-737 worked (bad
weather conditions, the constant presence of moisture from the river, and
the frequent connecting and disconnecting of heavy metal rigging on the
38. Based upon the evidence presented with respect to custom and
practice, ARTCO's failure to apply non-skid paint to the deck of Barge
XL-737 did not constitute a breach of the duty of reasonable care owed to
Phelps and did not constitute negligence by ARTCO.
39. Nor did the absence of non-skid paint render Barge XL-737
unseaworthy.*fn11 ARTCO delivered a seaworthy barge, without any oil or
foreign substance on the deck, to the fleet at URS on July 7, 1997.
40. ARTCO exercised reasonable care with respect to Barge XL-737.
41. Phelps' injuries and damages were not caused or contributed to by
any fault, neglect, or want of care on the part of ARTCO. ARTCO is
entitled to complete exoneration from liability to Phelps.
42. Since ARTCO did not breach any legal duty to Phelps and is in no
way liable to Phelps, ACBL's claims against ARTCO for contribution and
43. The kinked port face wire on the M/V William Norman constituted a
breach of ACBL's duty to provide Phelps with a seaworthy vessel. ACBL did
not furnish Phelps with adequate equipment to perform his assigned
tasks, as that wire was defective. ACBL is liable to Phelps for
breaching its duty of unseaworthiness as to the M/V William Norman.
44. ACBL also is liable to Phelps under the Jones Act. ACBL negligently
allowed Phelps to use a kinked, defective face wire, failed to enforce
its own safety rules (requiring crew to handle wires from the line deck
of the barge, requiring the crew members to inspect equipment before
using it, and requiring replacement of kinked face wires), and allowed
crew members to be absent from their posts (deckhand Craig was not where
he should have been to assist Phelps with the slack in the port face
45. Phelps was negligent in failing to inspect the well-lit barge deck
of Barge XL-737 before walking and working in that area and in failing to
follow ACBL safety rules and procedures regarding handling wires from the
line deck of a barge.
46. Phelps's damages total $465,855 on his unseaworthiness claim
against ACBL and $465,855 on his Jones Act claim against ACBL.*fn12
However, to avoid a double recovery, the Court only awards this amount
47. The Court already has noted that, as to the Jones Act claim against
ACBL, Phelps' own negligence is not a bar to recovery but reduces his
damages as comparative fault. Kelley, 900 F.2d at 1031-32. As to the
unseaworthiness claim against ACBL, Phelps' damages must be reduced in a
48. Courts have noted that, because unseaworthiness claims are not
grounded in negligence and are technically a form of liability without
fault, "comparative negligence" and "comparative fault" are not the most
apt nomenclature to apply when assessing an injured plaintiff's conduct.
But Courts have used both terms to describe the analysis of the
plaintiff/seaman's actions in unseaworthiness cases. See Neely v. Club Med
Management Services, Inc., 63 F.3d 166, 199 n. 37 (3rd Cir. 1995).
49. Some courts have suggested the phrase "comparative causation" as
more conceptually precise terminology. See Neely at 199 n. 37. Whatever
the term employed, this Court must equitably allocate the responsibility
for the injury or loss resulting from the unseaworthiness of
Id., citing Chotin Transp., Inc. v. United States, 819 F.2d 1342, 1353
n. 1 (6th Cir.), cert. denied, 484 U.S. 953 (1987). See also Garland v.
Material Service Corp., 291 F.2d 861, 864 (7th Cir. 1961) (affirming
trial court's use of contributory negligence instruction in case
involving claims of negligence and unseaworthiness); Knight v. Alaska
Trawl Fisheries, Inc., 154 F.3d 1042, 1047 (9th Cir. 1998) ("Maritime law
has also long applied the rule of comparative fault in a seaman's
unseaworthiness action against a shipowner."). Thus, Phelps' comparative
responsibility must be factored in to reduce his award for damages on the
50. Phelps total damages against ACBL are $465,855. The percentage of
responsibility attributable to Phelps (his comparative negligence or
causation) is 25%. Thus, Phelps is entitled to recover from ACBL on his
unseaworthiness and Jones Act claims $349,391.25. But the Court must
assess one other potential offset to these damages — the effect of
the maintenance and cure already paid by ACBL to Phelps.
51. A seaman's right to maintenance and cure is implied in the
employment contract between seaman and shipowner. Brister, 946 F.2d at
360. The right to maintenance and cure is not predicated on the fault or
the negligence of the shipowner. Id., quoting Aguilar v. Standard Oil of
New Jersey, 318 U.S. 724
, 730 (1943).*fn13
Thus, a vessel owner is
"almost automatically liable for the cost of medical treatment and basic
living expenses when a seaman in its employ is injured." Id.
52. "When it appears that a seaman's condition is incurable, or that
future treatment will merely relieve pain and suffering but not otherwise
improve the seaman's physical condition, it is proper to declare that the
point of maximum cure has been achieved." Cella, 998 F.2d at 430, citing
Pelotto v. L & N Towing Co., 604 F.2d 396, 400 (5th Cir. 1979). As noted
in the Court's findings of fact, Phelps reached maximum cure on April 8,
1998, and ACBL paid him $26,126.38 in cure.
53. Although an award for maintenance and cure is independent of
recovery allowed under Jones Act and unseaworthiness claims, "a seaman
clearly can receive only one recovery for his medical expenses."
Brister, 946 F.2d at 361. Id. Since the element of past medical expenses
"is inherent in each of the two types of recoveries [negligence and
unseaworthiness], there must not be a duplication in the final award . . .
by a Judge sitting in admiralty." Id.
54. Here, all of Phelps' medical bills already have been paid by ACBL.
ACBL has satisfied its cure obligation, so the Court does not award
Phelps damages for past medical expenses.
55. Maintenance is not considered a substitute for lost wages. See
Colburn v. Bunge Towing, Inc., 883 F.2d 372, 378 (5th Cir. 1989)
(recognizing that while medical expenses included in damage award are not
allowed to duplicate cure paid by employer, award for lost earnings does
not duplicate maintenance paid by employer).
56. ACBL paid Phelps $5,320 in maintenance. Phelps' recovery of lost
need not be reduced by this amount.
57. Under the Jones Act, recovery of prejudgment interest is not
permitted. Colburn, 883 F.2d at 378. However, as a general rule,
prejudgment interest may be awarded in admiralty cases — not as a
penalty, but as compensation for the use of funds to which the claimant
was rightfully entitled. Brister, 946 F.2d at 362. "This general rule is
limited by the proposition that a seaman may receive prejudgment interest
for past but not future damages." Id.
58. Phelps is entitled to prejudgment interest on his unseaworthiness
claim against ACBL — the damages for which, after being reduced by
the amount of Phelps' comparative causation, total $349,391.25. That
amount must be further reduced by $85,000 (the portion of the
unseaworthiness damages awarded for disability and disfigurement).
Thus, Phelps may recover prejudgment interest on $264,391.25.
59. The prime rate is the "benchmark for prejudgment interest unless
either there is a statutorily defined rate or the district court engages
in `refined rate-setting' directed at determining a more accurate market
rate for interest." First Nat'l Bank of Chicago v. Standard Bank &
Trust, 172 F.3d 472, 480 (7th Cir. 1998), citing Cement Division,
National Gypsum Co. v. City of Milwaukee, 144 F.3d 1111, 1114 (7th
Cir.1998); In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1332 (7th
Cir. 1992). The circumstances of this case do not warrant refined
rate-setting, and the prime rate shall be used.
60. Interest should be calculated from the date of the accident (July
17, 1997) averaging the prime rate for the years in question, until
August 2001, when judgment will be entered.*fn14
61. Counsel for Phelps and counsel for ACBL shall make the necessary
calculations to determine the appropriate rate for prejudgment interest
and shall submit those calculations in memo form to the Court on or
before August 13, 2001.
62. In its amended counterclaim, ARTCO prays for "a reasonable
attorneys' fee from ACBL . . . for attorneys' fees incurred . . . to
defend the claim of Charles Phelps for personal injury" (Doc. 26, p.
3).*fn15 The Court DIRECTS counsel for ARTCO and ACBL to file
memoranda (no longer than seven pages, excluding exhibits and supporting
materials) supporting and opposing the award of attorneys' fees to ARTCO.
ARTCO's memorandum must be filed on or before August 8, 2001. ACBL's
memorandum must be filed on or before August 15, 2001. Each memorandum
should be accompanied by a proposed Order.
On ARTCO's complaint/petition against Phelps and ACBL (Doc. 1), the
Clerk of Court shall enter judgment in favor of ARTCO and against Phelps
On Phelps' second amended claim against ARTCO (Doc. 64), the Clerk of
Court shall enter judgment in favor of ARTCO and against Phelps.
On Phelps' amended cross-claim against ACBL (Doc. 65), which includes
Phelps' Jones Act and unseaworthiness claims, the Clerk of Court shall
enter judgment in favor of Phelps and against ACBL in the total amount of
On ARTCO's amended counterclaim against ACBL (Doc. 26), the Court has
not found ARTCO liable for any damages to Phelps, so ARTCO's claims for
contribution and indemnity are moot. However, ARTCO also seeks attorneys'
fees from ACBL for the costs of defending Phelps' claims. The Court
RESERVES RULING on that issue at this time.
On ACBL's claim against ARTCO (Doc. 9), the Clerk of Court shall enter
judgment in favor of ARTCO and against ACBL.
Because the Court has not yet resolved the attorneys' fees issue raised
by ARTCO's counterclaim against ACBL (Doc. 26) and has not yet determined
the precise amount of prejudgment interest to which Phelps is entitled on
his amended cross-claim against ACBL (Doc. 65), the Clerk of Court shall
NOT ENTER JUDGMENT at this time.
Rather, the Court will resolve the attorneys' fees and prejudgment
interest issues in mid-August, following receipt of counsel's briefs on
these issues. Then the Clerk of Court will enter a single judgment
reflecting the resolution of all the claims raised herein. Any post-trial
motions should not be filed until after the Clerk enters judgment. See
Fed. R. Civ. Proc. 52(b) ("On a party's motion filed no later than 10
days after entry of judgment. . . .").
Having provided written findings and conclusions, the Court CANCELS the
hearing set for 2:30 p.m. on Thursday, August 2, 2001, at which the Court
had planned to orally announce its findings and conclusions.
IT IS SO ORDERED.