The opinion of the court was delivered by: Reagan, District Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This is the second of Nathan Kohlhaas' admiralty suits in this Court arising from injuries allegedly sustained on the MV Eleanor Gordon in April of 2005. The first suit was against his former employer, TECO Barge Line, Inc. (TECO), but that case was dismissed without prejudice for failure to prosecute. Kohlhaas v. TECO Barge Line, Inc., No. 06-CV-0102-DRH-PMF (S.D. Ill. Oct. 17, 2006). Kohlhaas sued again in late March of 2008, this time against the employer's successor, U.S. United Barge Line, LLC (United Barge Line).*fn1 This suit alleges that United Barge Line is responsible for his injuries because his employers negligently caused his injuries and also that unseaworthy conditions onboard the Eleanor Gordon proximately caused his injuries. He also alleges that the obligation of the owner of the Eleanor Gordon to maintain him and provide cure while recovering from his injury was not satisfied, and that United Barge Line is responsible for this obligation.
The Court tried this case without a jury on October 26--29, 2009 and invited the parties to present proposed findings of fact and conclusions of law. To that end, the parties ordered the transcript of the proceedings, prepared on December 14, 2009, and presented their proposed findings and conclusions on January 15, 2010. Having carefully reviewed the voluminous evidence in this admiralty and maritime case in light of the applicable law, the Court finds in favor of Defendant U.S. United Barge Line, LLC, and against Plaintiff Nathan Kohlhaas on all of Kohlhaas' claims. To explain its decision to the parties and to comply with Rule 32 of the Federal Rules of Civil Procedure, the Court issues these findings of fact and conclusions of law, along with its analysis of the legal issues presented by the case.
1. Plaintiff Nathan Kohlhaas was born July 10, 1983; at the time of his injuries, he was 22 years old; at the time of trial, he was 26 years old. (Final Pretrial Order pt. IV, ¶ 3.)
2. Kohlhaas graduated from Trigg County High School on May 26, 2002. He attended one year of college at Murray State University in 2002--2003. He did not attend college after his freshman year. (Tr. vol. I at 5.)
3. Kohlhaas was a member of the Murray State University football team. He practiced with the team but was not eligible to play in interscholastic competition until his sophomore year. While practicing with the team, Kohlhaas injured his right shoulder. More likely than not, this injury was a shoulder dislocation. (Tr. vol. II at 139, 252; vol. III at 223, 263.)
4. Kohlhaas was an employee of TECO Barge Line, Inc. (now known as Defendant U.S. United Barge Lines, LLC) in April 2005. (Tr. vol. I at 5.)
5. Kohlhaas worked as an inexperienced deckhand from November 2003 until January 2004 when he was promoted to experienced deckhand. Kohlhaas worked as an experienced deckhand for a year and a half, all aboard the Eleanor Gordon, before the incidents in April 2005. (Tr. vol. II at 143--44, 132.)
6. Kohlhaas received shore-side classroom training, which included review of TECO's operating procedures, safety rules and videotapes showing how to safely do the work of a deckhand. He also had hands on training at TECO's Ohio River facility in Metropolis, Illinois. (Tr. vol. II at 65; vol. I at 191, 194; vol. II at 195.)
7. Before the incidents, Kohlhaas understood TECO's safety rules and signed a copy, affirming his obligation to comply with the rules. (Tr. vol. II at 198--99; Rebuttal Dep. of Kohlhaas 78.)
8. TECO Safety Rule 23 requires all crew members to "keep alert" while working. Experts for both sides referred to this as "situational awareness." (Def.'s Ex. 2; Tr. vol. IV at 44.)
9. Kohlhaas earned $56.79 per day as a deckhand when he started in 2003 with TECO. That rate was increased to $73 per day in 2004, which was the rate he was paid at the time he left the service of TECO in April of 2005. (Final Pretrial Order pt. IV, ¶ 23.) Kohlhaas worked a schedule of 30 days on the boat followed by 30 days off the boat and was paid the same rate during the 30 days off the boat as he was paid while on the boat.
10. David Willoughby has forty-seven years experience working on the river. He recently retired from TECO after twenty-two years with the company as a licensed master. Willoughby was the master of the Eleanor Gordon for seventeen years including trips on which Kohlhaas worked as a deckhand. (Dep. of Captain David Willoughby 5--6.)
11. David Hopwood was a mate aboard the Eleanor Gordon at the time of the incidents. At the time of trial, he was a pilot for TECO. Before becoming a pilot, Hopwood worked as a deckhand and mate for ten years. After completing steersman training and obtaining Coast Guard licensure, he became a pilot for TECO in 2007. Hopwood was Kohlhaas' immediate supervisor at the time of both incidents. Kohlhaas described Hopwood as his best friend on the boat. Hopwood also considered Kohlhaas a friend. (Tr. vol. III at 188; vol. II at 143, 191.)
12. Charles Lane has been a licensed pilot for thirty-five years, and has twenty years experience working for TECO. Captain Lane was the master of the Eleanor Gordon during the events of the suit. (Tr. vol. III at 66--67.)
13. As master of the Eleanor Gordon, Captain Lane was responsible for completing daily vessel logs, which are required to be maintained by the Coast Guard. (Tr. vol. III at 73, 79-- 80.) 14. Robert Lee was the chief engineer aboard the Eleanor Gordon. (Tr. vol. III at 262.)
15. John Oglesby, M.D. is a board certified orthopedic surgeon based in Tennessee. He also is a clinical instructor at the University of Tennessee, Chattanooga. (Dep. of John Willis Oglesby 6--8.)
16. Dr. Treg Brown is an orthopedic surgeon who specializes in shoulder surgery. (Dep. of Dr. Brown 6.)
17. Dr. Lawrence Kriegshauser is an orthopedic surgeon based in Saint Louis, Missouri. (Dep. of Lawrence Kriegshauser, M.D. 5, 17.)
18. Dr. Mark Smith is licensed to practice orthopedic medicine in Kentucky. (Dep. of Mark Smith, M.D. 7.)
19. Captain James Jamison, Kohlhaas' liability expert, has held his commercial master's license and operated commercial vessels on the Inland Waterway System for approximately 50 years. He holds the license Any Gross Tons Masters-the highest available- and has worked on commercial vessels since 1957. He still sails on his commercial master's license. Captain Jamison has worked part-time as a maritime consultant since 1983, a period of 26 years, and has done work for tugboat companies (including TECO in 2003) as an expert and a consultant. (Pl.'s Ex. 54 at 3--6.) While 90% of his consulting work is for injured mariners, he still accepts employment from defense firms. (Tr. vol. I at 126.) Most of his consultations and expert testimony are related to safety and operational issues on inland tug and tow operations.
20. Captain Samuel Schropp, an expert retained by the defense, holds the following licenses-Master of Steam or Motor Driven Vessels of not more than 1600-gross tons on Inland Waters of the United States and Master of Towing Vessel on the Great Lakes, Western Rivers and Inland Waters of the United States with unlimited radar endorsement. He logs about 1000 hrs. yearly these days and otherwise serves as a marine consultant. The coast guard has certified him a "Designated Examiner." (Tr. vol. IV at 24--30.)
The Events Surrounding Kohlhaas' Injury and Treatment
21. Kohlhaas boarded the Eleanor Gordon on April 9, 2005 at 1:00 p.m. Boarding with him was Hopwood. Lane was master of the ship at the time. (Def.'s Ex. 4.)
22. The Eleanor Gordon picked up Barges CM019B and MLR1401 from a fleet near Rosedale on April 12, 2005 at 8:30 a.m. at mile 586 of the Mississippi River. The configuration of the tow is reflected on the vessel log for that day. (Def.'s Ex. 4.)
23. On the morning of April 14, 2005, the Eleanor Gordon dropped Barge TBL11 at mile 126 of the Mississippi River. TBL11 had been positioned on the head of the starboard inboard string. When Barge TBL11 was removed from the tow, Barge 440 was moved over in its place. Barge CM019B was left "uncovered" at the head of the starboard string. (Tr. vol. III at 87; Def.'s Ex. 4.)
24. Rigging connects barges together in a tow. Rigging consists of thirty-five foot steel wires, chain links, hoops, and ratchets. Loose rigging is created when barges are disconnected from each other. Stationary rigging is rigging that is permanently attached to and remains with the barge. (Tr. vol. I at 147; vol. III at 89.) Ratchets are approximately four feet long, weigh seventy pounds and are used to tighten the wires that couple the barges together. (Tr. vol. I at 83; Pltf's Ex. 64--66.)
25. Barge TBL11 had stationary rigging when it was dropped on April 14, 2005. When Barge 440 was disconnected from Barge CM019B, any non-stationary rigging would have stayed on Barge 440. (Tr. vol. III at 89).
26. Barge CM019B was dropped from the Eleanor Gordon's tow during the afternoon of April 14, 2005, at the Zito fleet, a barge storage operation at mile 106 of the Mississippi River. Kohlhaas was working the back watch (midnight to 6:00 a.m. and noon to 6:00 p.m.) with mate Hopwood. (Def. Ex. 4.)
27. On April 14, 2005, TECO hired and paid Zito Fleeting, LLC to move barge CM019B using the MV Big Sam, a vessel that Zito Fleeting operated, into the Zito fleet from the Eleanor Gordon. TECO did not control Zito Fleeting's conduct or the conduct of Zito Fleeting's employees aboard the Big Sam. (Pltf.'s Ex. 50; Tr. vol. I at 71--73; vol. III at 114, 168.)
28. CM019B was a box barge, meaning that instead of having a rake at the front helping it travel through the water it is squared off on both ends. The barge was thirty-five feet wide and 195 feet long. On the head of the barge, there is six to eight feet of working deck between the bow and the cargo box. The cargo box combined with the fiberglass cover rises about six feet above the deck. (Tr. vol. I at 144--45; vol. II at 147.) The vertical portion of the cargo box above the deck is called the coaming.*fn2
29. At approximately 3:00 p.m. on April 14, the Eleanor Gordon arrived at the Zito fleet. Hopwood and Kohlhaas proceeded to drop Barge CM019B. Before executing the drop of CM019B, Hopwood and Kohlhaas discussed how they would drop the barge. Hopwood told Kohlhaas to go to the head of the barge and knock the rigging loose so the barge could be dropped and released to the harbor tug. Kohlhaas understood what he was supposed to do. (Def. Ex. 4; Rebuttal Dep. of Kohlhaas 79--83; Tr. vol. I at 170--72.)
30. Dropping a single barge involves disconnecting the rigging holding the barge to the tow of a towboat, after which another towboat attaches its rigging to the barge and removes it from the tow. Dropping a single barge is a simple, routine operation. It can easily and safely be accomplished by two men in five minutes. It is standard procedure for one man to release the wires from the stern of the barge while the second man goes to the head of the tow to release the head wires. In the unlikely event a third deckhand is on watch during a single barge drop, two men work the stern as there are more wires to release at the stern than the head. (Tr. vol. I at 145--46; vol. III at 92, 192; vol. IV at 40--43; Dep. of Captain David Willoughby 8--10.)
31. Hopwood did not tell Kohlhaas to hurry, nor did any officer on the Eleanor Gordon instruct Kohlhaas to hurry or have a policy of hurrying deckhands when dropping barges. (Tr. vol. III at 204; Dep. of Captain Willoughby 26--27.)
32. It is not unsafe for a man being alone at the head of the tow to drop a barge as long as the vessel is not underway. (Tr. vol. III at 110--13; Dep. of Captain Willoughby 7--8.) Captain James Jamison, Kohlhaas' liability expert, testified there are multiple circumstances in which it is safe and acceptable for a deckhand to be alone on the head of a tow. To do so is not a violation of TECO or any other river company's safety rules. In fact, Kohlhaas' expert testified TECO did not violate its own safety rules in any respect in the present matter. (Tr. vol. I at 133-- 34, 175.)
33. The drop of Barge CM019B took approximately five minutes. (Def. Ex. 4.) This is not an unusual amount of time for such a procedure. A single barge can be safely dropped in five minutes. As far as tow work is concerned, dropping a single barge is as simple as it gets. (Tr. vol. I at 140.)
34. The Zito fleet where the barge was dropped is calm water and away from other river traffic. There would be no reason for the Eleanor Gordon's crew to be in a hurry while dropping Barge CM019B. (Tr. vol. III at 94.) There was no reason for Kohlhaas to be in a hurry. (Tr. vol. III at 92, 94.)
35. Hopwood sent Kohlhaas to the head of Barge CM019B to release the wires connecting it to the barge on its port side. Hopwood released the wires on the stern. At this time, the Eleanor Gordon and its tow was not underway. As Kohlhaas reached the head of the tow, the Big Sam faced up to Barge CM019B. Kohlhaas disconnected the wires connecting the port side of the barges to the tow while a deckhand from the Big Sam boarded Barge CM019B and placed a wire over a fitting on the starboard side.. He attached a wire to that fitting first because it was open (free of other wires) and Kohlhaas was still removing the wire from the port fitting. (Tr. vol. at 152--53.)
36. Once Kohlhaas disconnected the wire from the port fitting, there was one set of rigging on the head of Barge CM019B. This was not "extra rigging" that could have been removed earlier. It was rigging that had to remain "hard down" until the harbor tug faced up to the barge. (Tr. vol. I at 151--52.)
37. Even if there was extra rigging on the head of the barge, Kohlhaas could have easily tossed it onto the adjacent barge. It is not a violation of TECO safety policy or rules to store rigging against the coaming of a barge. (Tr. vol. I at 125; vol. III at 110; vol. I at 200--01; Dep. of Captain Willoughby 9; Tr. vol. II at 66--67.)
38. The TECO Safety Policy Manual prohibits the clearing of rigging from the head of a tow while the vessel and tow are underway. If there was extra rigging as Kohlhaas claims, it could not have been removed safely and in accordance with TECO's safety policy until the Eleanor Gordon stopped at Zito fleet. (Tr. vol. I at 161--62.)
39. Kohlhaas removed securing gear owned by TECO from the deck of the bow of Barge CM019B. Kohlhaas transferred the ratchets by picking them up and then tossing them, using both hands, onto the deck of the adjacent barge. This is a common, well-known and frequently performed procedure, and Kohlhaas had been taught to do this by his supervisors. Tossing a ratchet is a one man job that can be safely performed. (Tr. vol. I at 125--26.)
40. While tossing the rigging to the adjacent barge, Kohlhaas was facing the harbor tug with his back to the cargo box and was tossing the ratchets from his right side to his left side.
There was nothing blocking Kohlhaas' view as the harbor tug deckhand walked towards the port fitting. (Tr. vol. I at 157; Dep. of Dr. Smith 33--35; Dep. of Dr. Oglesby 9--10.)
41. The location of the ratchet next to the coaming did not prevent Kohlhaas from facing the harbor tug deckhand because nothing prevented him from moving the ratchet away from the coaming before picking it up. (Tr. vol. II at 96.)
42. According to Kohlhaas, he was lifting and about to pitch a ratchet, when the fleet tug's deckhand stepped into his way and into his line of sight.*fn3 To avoid striking the deckhand with the ratchet that was being pitched, Kohlhaas "arrested" his toss by suddenly changing the movement and direction of his arms and shoulders. (Tr. vol. II at 164--66.)
43. After arresting his toss, Kohlhaas experienced a "popping" sensation in his shoulder. The "popping" sensation was not a dislocation of the shoulder. (Dep. of Dr. Mark Smith 40.)
44. If the fleet tug had not stepped into Kohlhaas' way, Kohlhaas would not have had to arrest his toss of the ratchet. Additionally, if Kohlhaas had kept alert as required by TECO policies, he would have seen the deckhand and not have initiated the toss when the deckhand was in his line of sight. (Tr. vol. II at 242.)
45. It was unreasonable for Kohlhaas not to look before he threw the ratchet. (Rebuttal Dep. of Kohlhaas 92; Tr. ...