Ward v. American Hawaii Cruises, Inc.

• Decision Date: 30 September 1988
• Docket Number: Civ. No. 87-0341.
• Citation: 719 F. Supp. 915
• Parties: John E. WARD and Shirley A. Ward, Plaintiffs, v. AMERICAN HAWAII CRUISES, INC. and American Global Lines, Inc., Defendants.
• Court: U.S. District Court — District of Hawaii

719 F. Supp. 915

John E. WARD and Shirley A. Ward, Plaintiffs, v. AMERICAN HAWAII CRUISES, INC. and American Global Lines, Inc., Defendants.

Civ. No. 87-0341.

United States District Court, D. Hawaii.

June 17, 1988.

Order Denying Motion for Reconsideration September 28, 1988.

Order Awarding Prejudgment Interest September 30, 1988.

COPYRIGHT MATERIAL OMITTED

Paul F. Cronin, Cronin Fried Sekiya Kekina & Fairbanks, Honolulu, Hawaii, for plaintiffs.

Leonard F. Alcantara and Robert G. Frame, Alcantara & Frame, Honolulu, Hawaii, for defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

FONG, Chief Judge.

This case arises out of an injury sustained by plaintiff John E. Ward while employed as an able-bodied seaman aboard S.S. Independence on March 3, 1987. John Ward brought this action against defendants American Hawaii Cruises, Inc. and American Global Line, Inc. as operator and vessel owner. In addition, plaintiff Shirley A. Ward brought a claim for loss of consortium arising out of John Ward's injuries. This case came on for trial before the court without a jury, and the court, having considered the evidence presented at trial, and the arguments of counsel, finds as follows:

FINDINGS OF FACT

A. Liability

Plaintiff John Ward is 61 years old, and was employed as an able-bodied seaman with defendant American Hawaii Cruises aboard the S.S. Independence at the time of the accident. Ward has been a merchant seaman since 1944. He has been an able-bodied seaman since 1957.

The accident occurred at about 2:30 p.m. when Ward was on his 1200 to 1600 watch. His assigned task had been to grease the lines to reduce chaffing. Ward had just finished greasing the last line and had stood up to walk away when one of the after spring lines parted and struck him on the left knee. Ward had seen nothing out of the ordinary. Ward ended up face-down on the deck, nearly unconscious; he had sustained serious knee injuries and a cut to his forehead.

On March 3, 1987, the day of the accident, the vessel S.S. Independence docked in Hilo Harbor starboard side to, at about 0830 hours. The vessel was positioned with its bow to the North. The prevailing winds were out of the Northwest which means that they were off the port bow of the vessel. At the time the vessel was docked, the ship's log noted that there was moderate surge and force 4 winds, which would also be considered moderate. The following lines were used to secure the vessel: an outboard bow line, two head lines, a breast line, a forward spring line, two after spring lines, and two stern lines. It is unclear whether there was an extra forward spring line or an after breast line. There were no further entries in the log between 0830 and 1200 hours concerning surge. Had there been high surge, it should have been entered in the log.

All of the mooring lines used aboard the Independence are three-inch polydacron lines. The Independence does not have larger and stronger lines even though they are available. The line that parted was not new. Otherwise nothing is known about the condition of the line that parted because, despite plaintiffs' requests for production of the line, defendants lost track of it. All that is known concerning the location of the line is that the Second Officer, on duty at the time of the accident, brought the line back on board. He did not perform any tests on the line, and did not ask anyone to take custody of the line. Since the time of the accident, no one has inquired with him regarding the location of the line. While it is possible that the line was spliced and put back into service, evidence that this in fact occurred is too tenuous to persuade the court.

The evidence shows, and the court so finds, that the line parted where it lead through the chock. Although the chock had roller bitts, designed to reduce chaffing, the after spring lines tended forward and down, which means that the line chafed on the bottom of the chock rather leading around the well of the roller bitt. This would contribute to the weakening and ultimate failure of the line.

No chafing gear was used that day even though the officers in command testified that the lines were taking heavy stress. Instead, grease was applied. The practice of greasing lines may ultimately damage the lines because the grease attracts dirt and debris which works its way into the line. Furthermore, application of grease is not as effective as chafing gear in the prevention of chafing.

After the accident occurred, further precautions were taken. An entry in the log at 1530 hours, a few hours after the accident, the log indicates that steam was put to the engine and the port anchor was walked out under foot. An entry at 1600 hours indicates that gangway was secured, extra lines were lead, and that there was moderate surge.

From all the foregoing circumstances, the court concludes that the S.S. Independence, specifically the mooring line that parted, was in an unseaworthy condition. Furthermore, the court finds that the defendants were negligent in failing to maintain sound lines and to take proper precautions on the vessel. The unseaworthiness of the vessel and the negligence of defendants' employees proximately caused plaintiff's injuries. The court further finds that plaintiff John Ward acted properly at all times and did not contribute to the accident or injury.

B. Injury

Immediately after the accident, plaintiff was taken to a hospital in Hilo. The doctors in Hilo, however, did not diagnose the condition of plaintiff's knee. Since plaintiff's left knee could not support his weight, he fell at the hospital and cut his toe and struck his head.

Ward left the hospital and sailed with the ship back to Honolulu. Ward was then admitted to Straub Clinic. Dr. Gerald Mayfield, plaintiff's treating physician, diagnosed complete ruptures of the anterior cruciate ligament, posterior cruciate ligament, and medial collateral ligament, and a tear of the posterior capsule. Because of some complications in preparatory tests, plaintiff's surgery did not take place until March 11, 1987. The surgery involved repairing plaintiff's torn ligaments and capsule. Ward's anterior cruciate was so severely damaged that muscle had to be used in its place.

For one week after the surgery, plaintiff's leg was kept in motion 24 hours a day by a machine that was attached to his leg. For two weeks after the surgery, it was too painful for plaintiff to get out of bed. He spent a total of 19 days in the hospital.

Ward was discharged from Straub on March 27, 1987. After he left Straub, he was on crutches for about six weeks, and he had to wear a full length brace for two months, even when he was asleep. He started physical therapy at Straub right away, and when he completed his program there, he started a physical therapy program at Chart. Ward attended therapy sessions two to three times a week for about two and a half hours each session.

While plaintiff was recuperating and attending therapy sessions, he stayed at the seaman's home in Honolulu except for one week when he stayed at the YMCA. He had to go out for all of his meals. During this period, plaintiff was unable to go home to Mississippi, even though his wife had back surgery and his only daughter was married. Plaintiff did not go home because Dr. Mayfield advised him to continue the therapy program, and there were no similar facilities near his home. In addition, plaintiff felt that it was a very long trip for an injured person.

Dr. Bernard M. Portner, a specialist in non-surgical orthopedic problems, examined Ward on December 10, 1987, and April 25, 1988. During the December 1987 exam, Dr. Portner noted that plaintiff complained of numbness, popping sensations, pain from the surgical scar, internal pain, and fear of moving in certain ways. Upon examination, Dr. Portner noticed a diminution of sensation in the front part of Ward's knee. While plaintiff had the full range of motion, there was instability in lateral movement indicating that his tendons were lax. Further tests indicated laxity in the anterior cruciate and the posterior cruciate.

During the April exam, Dr. Portner noted that the laxity had not improved. He opined that the laxity was permanent. This laxity means that plaintiff's knee is unstable. While plaintiff's knee can withstand walking and moderate stress, more than moderate force could result in reinjury of the knee. Dr. Portner, like the other doctors, fears that plaintiff's knee might not support him in an emergency situation.

Based upon all the foregoing evidence, the court finds that Ward has sustained $175,000.00 in general damages, for permanent impairment of his left knee, past and future pain and suffering, and cosmetic damage.

Ward's wife, Shirley Ward, is also claiming damages for loss of consortium. Because of his injury, Mr. Ward has missed four months that he would have been at home. Mr. and Mrs. Ward have been married for over 27 years. They have two children. Mrs. Ward had flown to Hawaii in January of the year he was injured to vacation with him. The year that Mr. Ward was injured, Mrs. Ward ruptured a disk and had to have back surgery. Also that year, the Wards' daughter was married.

Mrs. Ward testified that when her husband is home he shops, cleans, does dishes, yard work and laundry. Since Mr. Ward could not come home in 1987, Mrs. Ward had to hire someone to mow the lawn for her.

For recreation, Mr. and Mrs. Ward fish, go out to eat, and work in the yard. Mrs. Ward tries to take off from work when her husband is home. Mrs. Ward testified that she and her husband have a very close relationship. Mrs. Ward also testified that it was very hard on the family while Mr. Ward was injured.

The court finds that Shirley A. Ward has suffered damages in the amount of $20,000.00 for loss of consortium.

C. Economic Loss

On February 2, 1988, Dr. Mayfield issued a fit-for-duty slip, enabling Ward to return to his employment. On March 19,...