Filkins v. McAllister Bros., Inc.

Citation695 F. Supp. 845
Decision Date22 January 1988
Docket NumberCiv. A. No. 87-135-N.
CourtU.S. District Court — Eastern District of Virginia
PartiesGerald FILKINS, Plaintiff, v. McALLISTER BROTHERS, INC., Defendant.

Moody, Strople and Lawrence, Portsmouth, Va., Jeffrey Breit, Norfolk, Va., for plaintiff.

John R. Crumpler, Jr., Kaufman & Canoles, Norfolk, Va., for defendant.


KELLAM, District Judge.

Plaintiff instituted this action on March 3, 1987, pursuant to 46 U.S.C.App. § 688 et seq. known as the Jones Act, General Maritime Law, and for maintenance and cure. He alleges that while serving as a seaman aboard the Tug BARBARA McALLISTER, he was injured as a result of the negligence of defendant, the unseaworthiness of its tug, and is entitled to maintenance and cure. In addition, plaintiff sought to recoup for wages as provided for in a contract between the Seafarers International Union, plus attorneys fees and costs. Tried to the jury, it returned a verdict for plaintiff for $180,000.00. Defendant has moved to set aside the verdict as excessive, for error of the court in failing to submit to the jury the issue of contributory negligence, and for error in directing a verdict in favor of the plaintiff on the issues of seaworthiness of the tug and negligence of the defendant, as well as taking from the jury the issue of maintenance and cure. Defendant further asserts that the verdict is against the clear weight of the evidence.


Plaintiff was a cook aboard the Tug BARBARA McALLISTER. On the occasion in question, the tug was towing a barge from Norfolk to Charleston. The winch on the tug, to which the tow line was attached, and brake shoe allegedly "gave way" or failed and the barge broke loose from the tug. The seas were described as not out of the ordinary, but were some two, three to four feet. When the barge broke loose, the captain called all personnel to the wheel house and advised them of his plan to recapture the barge. He placed them on emergency alert. The barge had an emergency hawser aboard. The captain decided to put one or two men from the tug aboard the barge and have them do the necessary duties to get the hawser aboard the tug and make the connection. He outlined his plan to all personnel. Two men were sent to the bow of the tug. The tug would approach the barge and when in contact with it, the men would jump or climb aboard the barge. Because of the sea action, it was necessary for the captain to await a time when a lull in the wave action occurred. That is, a time when the barge would not be rising and falling with the waves. The tug was very close by and when the captain determined the time was ripe, he would go in. He called to the men that the time was ripe, moved close and the two men got aboard the barge. There was a jar or shaking between the tug and the barge.

Plaintiff said that after the captain had advised of his plan to recapture the barge, and while waiting for the lull, he went back to the galley and because he did not know exactly the minute the captain would move in to the barge, and the captain did not notify him he was "going in", the contact between the tug and barge caused him to be slammed up against the back of a chair in the galley. He said that at that time, he had a six gallon jug in his hands with about a half gallon of water in it. He did not drop the jug. He said he immediately had pains in his back which radiated down his leg. Plaintiff said he went up to the wheel house and asked the captain if he was trying to break his back; that the captain "never had too much of a response" (Tr. of Ev. p. 49) and that he had no other conversation with the captain about the incident. The captain testified plaintiff never told him he hurt himself on the tug, and he never recorded it in the log. The plaintiff could not remember whether he thereafter assisted in securing the emergency hawser. Thereafter, the flotilla returned to Norfolk to have some repairs to the winch. Plaintiff made no further report or statement about any injury. While the flotilla was in for the repairs, plaintiff assisted with the work to earn overtime pay, performing duties on the winch and with the lines, and duties normally not those of the cook. He was described as climbing and "jumping around" in the performance of these extra duties, taking in the hawser, hawser cable, pulling on the wire rope, and working on the winch. He made no complaint of injury or pain until the flotilla was again under way, and after it passed the Chesapeake Bay Bridge Tunnel, he then informed the captain he would like to get off and go ashore. The Coast Guard was called and he was removed sometime later. The reason for his removal is the subject of much dispute. Plaintiff testified he told the captain he needed to get off because the pain was getting worse. The captain testified that when plaintiff advised him he would like to get off the tug, he said his back was bothering him, and that "it was an old injury; and that it wasn't bothering him that bad right then, but he knew from past experience that within 24 hours it was going to be hurting him excruciatingly" (Tr. of Ev. p. 151). When the captain filled out the report of the incident, he wrote in the report that the plaintiff said it was an old injury acting up. In a subsequent conversation with the plaintiff, after the trip was over, the captain said plaintiff told him he didn't injure himself on the tug; it was just an old injury and he wanted to get home. Before the plaintiff left the tug, he called his wife on the ship to shore telephone. The captain verified "he heard plaintiff telling his wife that his old back injury was acting up again and he needed to get off because he knew that the pain was going to be really bad within the next 24 hours." (Tr. of Ev. p. 153). This is exactly what the plaintiff had earlier told the captain when he first stated he wanted to get off the tug. The captain was corroborated by G. White, one of the seamen aboard the tug, who was called as a witness by plaintiff. He testified he never heard plaintiff complain of being hurt, and he heard plaintiff talking with his wife about having an old problem with his back. When plaintiff was asked whether he told his wife over the telephone that he was getting off the tug because his old back injury was acting up again, he said "I might have said that," (Tr. of Ev. p. 69), and that if he said that, he was telling the truth. Again, he said that when he was talking to his wife telling her he was getting off the tug, he was thinking he had the old problem with his back.

After returning to his home, plaintiff waited a week before seeing a physician. The physician saw him on January 27, February 6, March 25, April 28 and May 29th. On the 29th, he was made fit for duty. He accepted a position as cook aboard a tug and worked almost a month until the regular cook aboard that tug returned, and he was relieved of his position. Plaintiff said the reason he did not continue to work was because there was no work available. He then went back to see his physician on July 14, 1987.

There is much dispute as to the real condition and injury of the plaintiff. His attending physician said he has lumbar nerve irritation and this is probably based on some scarring that's present in the nerve that we are not seeing, and at this time he cannot see a surgically correctable lesion. He was of the opinion that plaintiff would probably have pain if he went back on board a tug, but he was not saying he could not be employed in another position; that when he is doing heavy lifting, bending, stooping, pushing and pulling, he has the back irritation which will persist. CAT scan and a myllogram performed were normal and showed no cause for pain. X-rays were normal and he had good strength in his muscle group. When plaintiff was examined on September 1st and again on October 8th by Dr. Ira Cantin, there was no deformity, no swelling and a normal range of back motion. Plaintiff complained of pain in the area of the 12th rib, high on the left side of his back, but made no complaint in the lumbosacral area. There was no pain on straight-leg raising, no evidence of nerve root irritation, and no atrophy. Plaintiff had complained of some transient numbness in his toes, but had none at the time of Dr. Cantin's examination. Dr. Cantin found he could return to work. Dr. Morales' determination of nerve root irritation is based upon use of an EMG and thermogram, the value of which Dr. Morales says is controversial.

There was no evidence concerning medical expenses, or plaintiff's hourly or monthly earnings or what wages were lost, nor any evidence of the amount, extent or reach of the lessening of earnings in the future, or earning capacity.

Plaintiff contended that when a tug is towing a barge, it is negligence on the part of the barge owner and tug not to have an emergency hawser on board the barge with a tag line affixed to the hawser. This tag line would trail behind the barge so that it could be fished out of the water by the tug without the necessity of the tug coming into contact with the barge and the tug could then pull the emergency hawser affixed to the barge aboard the tug and make a proper connection. Secondly, plaintiff says it was negligence for the captain to make contact between the tug and barge without first notifying all persons on the tug of the exact moment when the contact would be made.

First, the plaintiff presented the testimony of Tug Captain Thompson, who was asked if there was a normal practice when the tug was coming along side a loose barge to recapture the barge, to notify the crew before actual contact is made. Captain Thompson said it was normal procedure with him, and that he normally sent someone to notify others.

Captain Hudgins said that when it was necessary for a tug to go along side of a barge to recover it, he generally notified all on board of the action, or told them he would hit the...

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8 cases
  • Earl v. Bouchard Transp. Co., Inc., CV-85-4234.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 24, 1990
    ...(cited approvingly in Saleeby v. Kingsway Tankers, Inc., 531 F.Supp. 879, 888 (S.D.N.Y.1981) (Jones Act)); Filkins v. McAllister Bros., Inc., 695 F.Supp. 845, 851 (E.D.Va.1988) (question of excessiveness of verdict is one left largely to discretion of trial court) (Jones Act). The final "`d......
  • Mercer v. Duke University, 1:97CV00959.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • March 12, 2001
    ...vested in a jury, the right of the jury to fix the amount of damages is not arbitrary or unlimited." Filkins v. McAllister Bros., Inc., 695 F.Supp. 845, 851 (E.D.Va.1988). Specifically, a jury award cannot be so excessive as to violate due process. "[S]uch an award violates due process only......
  • Houck & Sons, Inc. v. Transylvania County, A-C-90-65.
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • March 18, 1993
    ...rational or reasonable relationship to the damages proved and, therefore, is not supported by the evidence. Filkins v. McAllister Brothers, Inc., 695 F.Supp. 845, 851 (E.D.Va.1988). In other words, the court should grant a new trial if the verdict is so excessive so as to "shock the conscie......
  • Earl v. Bouchard Transp. Co., Inc., s. 33
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 2, 1990
    ...Saleeby v. Kingsway Tankers, Inc., 531 F.Supp. 879, 888 (S.D.N.Y.1981) (substantially same) (Jones Act case); Filkins v. McAllister Bros., Inc., 695 F.Supp. 845, 851 (E.D.Va.1988) (question of excessiveness of verdict is left largely to discretion of trial court) (Jones Act Plaintiff makes ......
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