Couch v. Cro-Marine Transport, Inc.
| Decision Date | 13 February 1995 |
| Docket Number | CRO-MARINE,No. 93-3902,93-3902 |
| Parties | Ray COUCH, III, Plaintiff-Appellee, v.TRANSPORT, INC., et al., Defendants, James J. Flanagan Shipping Corporation, Defendant-Appellant. BERISFORD METALS CORPORATION, d/b/a Erlanger & Co., Third-Party Plaintiff, v. CENTRAL ILLINOIS DOCK COMPANY, Third-Party Defendant Intervenor-Appellee, v. JAMES J. FLANAGAN SHIPPING CORPORATION, Third-Party Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gerard T. Gelpi, G. Beauregard Gelpi, Gelpi, Sullivan, Carroll & Gibbens, New Orleans, LA, for appellant.
Morton H. Katz, T. Daniel Pick, Herman, Herman, Katz & Cotlar, New Orleans, LA, for Couch.
Robert B. Nolan, Adams & Reese, New Orleans, LA, for Central Illinois Dock Co.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before GARWOOD, JOLLY and STEWART, Circuit Judges.
Plaintiff-appellee longshoreman Ray Couch (Couch) filed this suit against Cro-Marine-Transport (Cro-Marine), Berisford Metals Corporation/Erlanger and Company (Erlanger), and James J. Flanagan Shipping Corporation, d/b/a New Orleans Stevedoring Company (NOSC), for injuries sustained while unloading steel cargo from a Cro-Marine barge in Peoria, Illinois. Erlanger was the owner of the steel cargo, and NOSC was the stevedore that loaded the steel into the barges in the port of New Orleans. After the district court dismissed the claims against Cro-Marine and Erlanger, Couch proceeded with his suit against NOSC and recovered a $1,722,640 judgment in a bench trial. Defendant-appellant NOSC appeals, raising several factual and legal issues. We affirm in part, vacate in part, and remand.
Couch, a longshoreman employed by Central Illinois Dock Company (CIDC), was injured while discharging steel cargo from Cro-Marine barge VL-8141 in Peoria, Illinois, on December 14, 1987. As a result of his injuries, Couch's leg was amputated above the knee. The steel destined for Peoria had arrived in the port of New Orleans aboard the M/V UCKA. Thereafter, the owners of the M/V UCKA hired NOSC to discharge the M/V UCKA and transload the steel cargo onto three Cro-Marine barges, including barge VL-8141, for the trip upriver to Peoria. The steel cargo consisted of bundles of steel billets of various sizes, steel coils, and steel bars.
Chander Gorowara, an independent marine surveyor hired by the cargo owner Erlanger, inspected and photographed the steel cargo in New Orleans while it was stacked in a wharf storage shed and again after NOSC loaded it into the barges bound for Peoria. These photographs, introduced into evidence at trial, show the condition of the cargo and its stow in the barges bound for Peoria. As depicted by the photographs of the stow in the storage shed, NOSC neatly stacked the steel bundles in tiers with wood dunnage placed between the layers. By contrast, the photographs of the stow in the barges, particularly barge VL-8141, reveal that NOSC haphazardly dumped irregular piles of steel into the barges. Several of the piles were dropped in the barge at an angle instead of being stacked to provide a walking surface for the discharging stevedore. Moreover, NOSC used dunnage irregularly and as a bridge to support the weight of the steel instead of its intended use as a separation. 1
Tugs accompanied the unmanned barges on the voyage upriver to Peoria. Erlanger hired CIDC, a Peoria stevedoring company with over thirty years' experience on the Illinois River, to discharge the steel from the barges to trucks for shipment to the Caterpillar Truck Company, also in Peoria. Ninety-five percent of CIDC's business consists of discharging vessels, and steel accounts for about ninety percent of the cargo it unloads. After personally inspecting the barges, Daniel McNally (McNally), the owner and president of CIDC, described the stow as one of the worst barge loads he had ever seen. There were four or five distinct piles of steel bundles jammed against each other with broken dunnage throughout the barge. McNally noticed bundles not separated by dunnage and overhanging bundles ready to fall over.
CIDC had more experience in discharging steel cargo than any other stevedore in the area. McNally decided that CIDC would proceed carefully to discharge the steel from the barges. McNally assigned a crew consisting of a crane operator, two laborers, one of whom was Couch, a superintendent, and a truck driver to unload the barge. At the time of the accident, Couch had three months of experience unloading barges. Cohenour, the laborer assisting Couch, had one and one-half years of experience.
The unloading operation consisted of the crane operator lowering a block with two attached choker chains into the cargo area. Cohenour and Couch, positioned at either end of the piles of steel, would wrap the choker chains around the ends of the bundle of steel billets to be unloaded. At this point, Cohenour would signal the crane operator to lift the bundles out of the barge and onto the truck.
Due to the haphazard dump stow of the steel and the insufficient and improper use of dunnage, Couch and Cohenour had difficulty getting the chains around the bundles and needed to use pry bars to lift up the bundles so that the chains could be placed around the ends. Moreover, the crane operator occasionally had to pick up one end of a bundle so that chains could be placed around the other end. This operation proceeded for some twenty-one hours until only eight bundles, located in the starboard bow of barge VL-8141, remained to be unloaded. These bundles were leaning against the rake of the bow and were arranged so that there were three bundles on the bottom, two in the middle, and three on the top, the weight of the top three bundles being supported by the two bundles in the middle.
Couch and Cohenour then attempted to unload two of the top bundles positioned closest to them. Because these bundles were pressed against the rake of the bow, the crane operator lifted one end of either one or two of these bundles and set them down. Couch, who was closest to the bow, was trying to wrap the chains around the ends of the two bundles when he heard a crack. A one and one-half to four ton bundle of steel billets fell and crushed Couch's left leg. At the time of the accident, the crane operator was still awaiting a signal from Cohenour.
After five unsuccessful surgical procedures, Couch's physicians amputated his leg above the knee. Since the initial amputation, Couch has undergone additional surgery, including stump revision, bringing the total number of surgeries to fourteen at the time of the district court judgment. Couch now wears a prosthetic device, which requires maintenance and regular part replacement due to his active lifestyle. Couch suffers severe ghost pains in his leg and has also endured back and knee pain due to the pressure his activities place on those muscles. Couch was twenty-seven years old at the time of his injury. Prior to the accident, he had led a very active life, was a black belt in karate and an amateur boxer aspiring to turn professional. Before the accident, Couch worked approximately forty hours per week earning $9.25 per hour.
At his own initiative and expense, Couch enrolled in community college after the accident to train for another career as a diesel mechanic. In December 1992, he returned to work for CIDC as a diesel mechanic, eventually working twenty-four hours each week at $11.25 per hour, approximately the same hourly rate he would be earning if he had not been injured. Shortly after starting work as a diesel mechanic, Couch's condition forced him to take off approximately one month. Couch still hopes to work five days a week, but that will depend upon the strain such a schedule puts on his body.
Couch originally filed suit in the United States District Court for the Central District of Illinois against Cro-Marine, the owner of the barge, and Erlanger, the owner of the steel cargo. He subsequently amended his complaint to name NOSC as a defendant. After NOSC objected to venue in the Central District of Illinois, the entire proceeding was transferred to the Eastern District of Louisiana. Prior to trial, the district court granted Cro-Marine and Erlanger's motions for summary judgment and dismissed them from the action. NOSC filed a third-party complaint against CIDC seeking indemnity and contribution. CIDC also remained in the litigation as an intervenor seeking to recover amounts paid to or on behalf of Couch under the Illinois Workers' Compensation Act (IWCA).
After a bench trial, the district court entered a judgment against NOSC awarding Couch $1,722,640. This award included $134,225 for past medical and prosthesis expenses, $150,000 for future medical and prosthesis expenses, $88,415 for past wage losses, $200,000 for future loss of earning capacity, and $1,150,000 for physical pain and suffering, disability, impairment, and mental anguish. Because Couch received IWCA benefits from his employer CIDC, the district court held that CIDC was entitled to recover from his award the amount spent on medical expenses ($134,225) and the compensation benefits paid ($71,105), subject to a credit of 25% attorneys' fees in favor of Couch and his counsel. Finally, the district court awarded interest from the date of the entry of the judgment on the award of future medical expenses and future loss of earning capacity. On the past medical expenses, past lost wages and the $1,115,000 pain and suffering award, the district court awarded interest from the date of the injury.
The Longshore and Harbor Workers' Compensation Act (LHWCA) establishes a comprehensive framework to provide a federal workers' compensation program for longshoremen injured or killed in job-related...
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