Moran Towing Corporation, No. 1:2010cv04844 - Document 114 (S.D.N.Y. 2013)

Court Description: OPINION: Based upon all the prior proceedings and the facts and conclusions of law set forth above, judgment is awarded to Avril Young. Settle judgment on notice. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 11/11/2013) (ama)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ---- ---- ---x In the Matter of the Complaint of MORAN TOWING CORPORATION, as Owner and Operator of the TUG TURECAMO GIRLS, Exoneration from or Limitation of Liability, Petitioner. -------------------------------x A P PEA RAN C E S: Attorne r Petitioner CLARK ATCHESON & REISERT 7800 River Road North Bergen, New Jersey 07047 By: Richard Joseph Reisert, Esq. Frank A. Atcheson KREINDLER & KREINDLER 100 Park Avenue New York, NY 10017 By: Daniel O. Rose, Esq. Megan Wolfe Benett, Esq. 10 Civ. 4844 OPINION Sweet, D.J. court from May 20, 2013 Two actions were tried to t ition for exoneration filed by the through June 4, 2013, the pet ioner Moran Towing Corporation ("Moran" or t "Petitioner") and a Jones Act and general maritime law act led by claimant Avril Young ("Avril Young" or for negligence "). the "CIa These actions arise out of the crushing to death on December 27, 2011 of Ricardo Young ("Young" or the "Decedent") a khand who was entrapped in the Turecamo Girls, a Moran tug ( stan of the "Tug"), by a towline under great pressure during an improperly conducted swing maneuver. horror of this incident s raised difficult issues which were presented with skill by very competent advocates. Upon all prior proceedings and the facts and conclusions of law set forth below, judgment 11 be entered on If of Avril Young. Prior Proceedings On June 22, 2010, t Pet ioner filed a Petition for Exoneration from or Limitation of Liability in this pursuant to 46 U.S.C. §§ 30501 et S 1 'f strict, and the various statutes supplemental thereto and amendatory thereof, and Rule F of the Supplemental Rules for Admiralty and Maritime Claims ("Admiralty Rules") arising out of the events surrounding Young's death. On September 8, 2010, the Claimant, as administrator of the Estate of Young, jurisdiction is within this court's admiralty and marit pursuant to 28 U.S.C. § the case filed an Answer admitting Federal Rules 1333(1), Rule 9(h) of t of Civil Procedure and Rule F of the Admiralty Rules, and demanded a trial by jury. , the Claimant filed On that same a claim on behalf of the Estate and on behalf of the dece nor son, Nicholas Young ("Nicho nt's sn), but at that time the Claimant had not yet been appointed as the 1 1 guardian of Nicholas or the administrator of the Estate. On July 11, 2011, the Claimant, on individually and as the administrator sentat death of the neficiar If of herself, personal ate of Young and all other wrongful s and heirs, filed a First Amended Cla under Jones Act, 46 U.S.C. § 30104 and general maritime law and demanded a trial by jury. Petitioner then moved pursuant to Rules 12(f) and 39(a) (2) of the Federal Rules of Civil Procedure to strike the Claimant's demand for a j 2 trial on any issues . The pertaining to exoneration from or limitation of liabil Claimant then cross-moved pursuant to Rules 38 and 39 of Federal Rules of Civil Procedure to empanel a jury to hear and r a verdict as to her claims under the Jones Act and general maritime law. opin of April 11, 2013 "April 11 Opinion"), (t it was held that there is no right to a jury trial on issues rtaining to exonerat or 1 tation of liability, but that a Jones Act action. there is a right to a jury determination On April 16, 2013, Moran fil summa judgment. a motion for rtial On May 1, 2013, Moran's motion was denied and on May 20, 2013, after the Claimant waived her jury demand, a bench trial was commenced on the the Jones Act and ition for exoneration and ral maritime law act . Both actions were tried to the court from May 20, 2013 through June 4, 2013, post t 1 submissions were completed on August 9, parties presented t 2013 and the nal arguments on October 1, 2013 at whi the actions were considered fully submitted. 3 The Facts In the early morning hours of December 27, 2009, Young, a deckhand, was crushed to death in the capstan of the Tug. (Joint Pretrial Order, Stipulated Facts, "St Facts"; at ~ 1.) lat Tug was At the time of the fatal incident, pushing the barge Lisa (the "Barge") on a "sludge run" down the Hackensack River from a waste disposal site in Little Ferry, New Facts at a Newark, New Jersey. lson Avenue Jersey to ~ (Stipulated 5.) The Tug and Barge departed Little Ferry just r midnight and were about an hour into its voyage when Young's death occurred. (Stipulated Facts at board the Tug at the time of the inc ~ 8.) The crew on consisted of Captain Michael Staszko ("Staszko"), mate Philip Allen ("Allen"), engineer Thomas Best ("Best"), Young and deckhand Char ("Taibi"). (Stipulated Facts at ~ s Taibi 7.) At the time of Young's death, Allen was in the upper wheelhouse operating the Tug; Young was at the rear ("a doing paperwork. ") ck and Best was in his cabin Staszko and Ta (Stipulated Facts at ~ i were off-duty asleep. 12.) Staszko has been employed by Moran capacities since 1978, starting as 4 various khand and elevated to Captain (or Master) in 1990 or 1991. Trans."; at 1055-1058.) He (Trial Transcript, "Tr. s been serving as captain of ibit, "Exhibit"; Tug since 1999 (Tr. Trans. at 1055; Trial 339), and was familiar with the Little Ferry to Newark run because four t years. qualif Tug had been forming the se ce about e to the last twelve to thirteen s every two wee (Tr. Trans. at 143; 174; 1033-1034; 1071-1072.) He was to serve as t Tug's master. Allen was duly licensed as a Master of any towing vessel of not more than 1600 tons, and had been serving as mate of Tug since 2007. familiar with the f tt (Tr. Trans. at 66.) Ferry to Newa of the Tug's employment in He was fully run, given t service. (Tr. Trans. at 143.) He was qualified to serve as the Tug's mate. (Tr. Trans. at 130-132; 1063 1066.) Best was a Coast Guard licensed marine e d been the ch 338.) Best was f engineer of Tug since 1998. lified to serve as the Tug's (Tr. Trans. at 192-196; 1067 1068). 5 neer who (Exhibit f engineer. employed as a deckhand by Moran since Taibi had 2001 and had been a Trans. at 1023-1024; ibit 340.) as a khand on the Tug. rs. Tug for s khand aboard to serve was qualif Ta (Tr. (Tr. Trans. at 141-142; 1066 1067.) Young was born in Guyana on April 7, 1951 and had Caribbean worked as a deckhand and bosun aboard vessels in for several years be 1999. (Tr. Trans. at 907; Ex 203.) he worked for a fi wor re he immigrated to the United States in After arri ng boat company in Florida ng for Moran as a deckhand in 2006. he began (Tr. Trans. at 17; 1122 1123; Exhibit 203; 324.) Young became t Tug ng in the U.S., ckhand of t August 2008, and received a vessel orientation on the Tug including its de t 324 machinery. frequency of the Tug's work on was familiar with and had Newark run and 14-16.) Given Hackensack rienced t r sludge run, ttle Fe to rformed the trip on the same watch with and was a competent deckhand and qualif len to serve on Tug. (Tr. Trans. at 138-139; 139; 143-144.) As master or safe, economic and effi Trans. at 1132.) , Staszko was "respons for the ent operation of the vessel." (Tr. As mate, len was t 6 "direct representative of Moran and respons procedures." e for administering Moran policies and (Tr. Trans. at 68.) crewmembers aboa Aside from the captain, all incident, Tug on the night of len's orders. including engineer Best, were subject to Trans. at 67.) maintain its il y on the Tug was to (Tr. Trans. at 196.) k if asked by the to assist on at 198.) Best's primary respons (Tr. Best was avail or mate. (Tr. Trans. Deckhands aboard Moran tugboats handle lines, act as of them. lookouts and do whatever else is requi (Exhibit 313, 104. ) in 1965, has two eng Tug was construct is 91 s long, 27 feet wide, weighs 199 gross tons and produces approximately 2,000 hors (Tr. Trans. at 68 69; Exhibits 7, 92.) The Barge is approximately 272 feet long and 68 feet has a draft of 13 14 approximately 15 million pounds on , and weighed night of the (Tr. Trans. at 69; 1271; Exhibit 92, 9.) have a " 1/ that would link Tug to the barge. at 71; 296; Exhibit 184, photo 12.) marker line up. cating where t t The Ba The bow of the s not (Tr. Trans. has a of the bow of the Tug should (Tr. Trans. at 71.) 7 Barge to the The Tug uses "push gear" to secure Tug. Facts (Stipulat ~ River, the bow of the T the Barge. Hackensack 15.) When pushing down inst the bow section of is aligned bow of the Tug is not (Tr. Trans. at 70.) , and the Barge is instead aligned against the stern of the Ba "pushed backwards" because there is not enough room ver (Tr. Trans. at 72.) Barge around. to turn tIe at the The "push gear" includes push lines that run from the deck bits Barge to the aft quarter bitts of on the bow section of Tug. (Stipulated Facts 'Jl 16.) a fixed line. (Stipulated Facts at The starboard (ri aft The port ( rter around the capstan to the H-bitt (so designated Exhibit 184, photo 33.) tan. (Stipulat Facts at 'Jl 19; main towing lines, the push gear or s, are the Tug's 18; 1026-127.) the 17; Exhibit 184, photo 31.) side) push line passes from the starboard presumably because of its shape). push I ~ ft side) push line is The starboard ipment. sh (JPTO 15, 16; Tr. Trans. at r is ustable by use of (Stipulated Facts at 'Jl 18; Exhibit 184, photo 33.) The capstan is located on t aft k. (Tr. Trans. at 1060; Exhibit 384, photo 3.) The Tug has a ten horsepower capstan. capstan is a mechanical, electrically-powered drum us the starboa push line. (Tr. Trans. at 74; 227.) 8 A to bring are secured to each other When the Tug and Bar Ie Ferry, the starboa ("made-up") at rter bit on the Tug aft the starboa times around t push line passes from is wrapped several off on the H-bitt. capstan, and then t (Stipulated Facts at ~ "capstan controller which, on the night of the incident, was located approx ff 19: 23.) tely 36 inches from t bulkhead of the main house of the Tug. 20; ibit 384, photo 3; 24.) buttons: forwa capstan on t (Stipulat aft Facts at ~ The controller has three , reverse and stop. 389, photo 26.) At the t by a The capstan is control of t (Tr. Trans. at 229: Exhibit incident, the forward and stop buttons were painted white and the reverse button was inted black. (Exhibit 389, photo 26.) A "swing maneuver" is used to bring in slack that has developed in the starboard push gear as the Tug and Ba maneuver down the r r. In conducting the maneuver the Tug makes three turns: t a swing to the Facts at ~ rst, a swing to the right, t , and the 22; 25; 31.) nal swing back right. During t second, (Stipulated first right turn, the Tug is turned (swung) to starboard about 10-15 degrees with the stern of the Tug swinging to port, stretching the starboard towline as 9 far as possible. (Tr. Trans. at 711; 720; Exhibit 304, Animation of Standard Swing Maneuver.) During the second turn, the Tug is swung back to port with the stern of the tug swinging to starboard, developing maximum slack in the starboard pushline. (Tr. Trans. at 712; Exhibit 304, Animation of Standard Swing Maneuver.) Then the captain or mate (whichever is on watch) calls the deckhand on the radio and gives the order to "take it as it comes." (Stipulated Facts Standard Swing Maneuver.) ~ 26; Exhibit 304, Animation of The deckhand activates the capstan, by use of the forward button on the capstan controller. Trans. at 91-92; 99.) (Tr. The capstan turning in the forward direction brings in the slack that has developed. Animation of Standard Swing Maneuver.) pulled in, the capstan is stopped. (Exhibit 304, Once the slack has been (Tr. Trans. at 712-13; Exhibit 304, Animation of Standard Swing Maneuver.) The deckhand then unties the towline that had been wrapped around the H-bitt, manually pulls in the towline slack that is now between the capstan and the H-bitt, and then re-ties the towline on the H-bitt. (Tr. Trans. at 713; Exhibit 304, Animation of Standard Swing Maneuver.) When this is done, the deckhand advises the captain or mate that the line is "all fast," indicating that the towline has been securely tied off on the H bitt, and it is safe to commence the final turn in the swing 10 maneuver. (Tr. Trans. at 713; Exhibit 304, Animation of Standard Swing Maneuver.) On the Little Ferry-Newark transit, this swing maneuver is performed on the approach to the Jackknife Bridge, in the vicinity of Buoy 18 because of the natural bend and widening of the river at this point. (Tr. Trans. at 83; 91; 1093; 1227-1228.) Under Moran's Safety Management System, codified in its Operations Policy and Procedures Manual ("OPPM"), the navigator has discretion to callout a second person to attend on the aft deck during the line tightening. (Exhibit 313 § 5.2.4.1.) Prior to December 26, 2009, the Tug had towed the Barge from the sewage treatment facility at Wilson Avenue in Newark, New Jersey to the sewage treatment plant in Little Ferry, New Jersey via the Hackensack River. (Tr. Trans. at 72.) On December 26, 2009, the Tug returned to Little Ferry to pick up the loaded Barge and deliver the Barge back to Wilson Avenue. (Tr. Trans. at 22). The Hackensack River is a tidal waterway and the Little Ferry-Newark trip is known as a "tide job," which must be 11 performed under flood t depth conditions to allow for sufficient the river to accommodate loaded Barge. fore the tide at 1074-1076.) The Tug arrived at Little Ferry ver is flowing changed from ebb (meaning the water in t r) to flood (when south or down or upriver). "tide job," (Tr. Trans. water is flowing north (Tr. Trans. at 1076-1077.) Because t move is a is always performed under substantially similar conditions of tide and current. (Tr. Trans. at 80; 1075 1076.) The Tug arrived at Little Ferry on December 26, 2009 at about 11:00 p.m. wat (2300 hours) with Staszko and Taibi on the (Tr. Trans. at 72-73; 77; Exhibit 13.) When the flood tide began, Staszko positioned the bow of t Tug against the bow section of the Barge, and deckhand Taibi made up (connected) the Tug to Barge, assisted by two men aboard t Trans. at 1073-1074.) The men on t Barge. (Tr. barge worked for raserve, the operator of the Barge and not Moran. Allen and Young were off duty during the Tug and Ba .) make up procedure. Taibi handled the lines on the Tug and the Barge's crew handl the 1 s pass from the Tug to the Barge. (Tr. Trans. at 1026-1027.) During the make-up process, the Tug was 12 maneuvered so that Taibi could pass the Tug's port push line to the Barge where the line was secured to a bitt near the corner of the Barge. (Tr. Trans. at 1027; 1079 1080; 260; 354; 355; 356; Exhibit 84, photos 30-32.) Taibi then secured the port push line to a bitt on the port stern of the Tug. (Tr. Trans. at 10275; 1079 1080.) The port push line was a fixed line secured by hand (without the use of the capstan) and once made fast, was not adjusted during the trip. (Tr. Trans. at 136.) After the port push line was secured, Staszko maneuvered the Tug so that Taibi could pass one end of t starboard push line to the Barge, where it was made fast. Tug's (Tr. Trans. at 1027; 1079-1080.) The starboard push line was comprised of a shorter Kevlar line with a loop or eye at one end that is secured to t end of the Kevlar 1 Barge. A shack is fixed to the other (Tr. Trans. at 74; 101; Exhibit 184, photo 6.) A seven-inch polyester line with an eye spliced into one end is then secured to the Tug's starboard aft quarter bit, led four times through the shackle, then led around the quarter bitt to the Tug's capstan. Exhibit 184 photos 28, (Tr. Trans. at 74; 139-140; 1081; 33.) This four-part line (also known as a four-part purchase) creates a mechanical advantage with the result that any forces applied to the line at the corner of the 13 four when the line is brought Barge are reduced by a factor to the capstan. (Tr. Trans. at 139-140; 1329.) After setting up the starboard push gear, Taibi led the tail end of the seven inch pol ster line around the Tug's starboard stern quarter bitt and then to the capstan. (Tr. Trans. at 1081.) Taibi made three to four clockwise turns around the capstan with the line and act ted the capstan's "forward" button causing the push line to draw tight. (Tr. Trans. at 1028.) Taibi added additional clockwise turns of 1 capstan until t 1028.) capstan was full. around the (see Tr. Trans. at 140-141; At this point, there were f turns on the capstan. (Tr. Trans. at 142; 1028; 1212-1213; 1317; 1332; Exhibits 354; 184, photo 33; 336, photo 006; 344, photos 049, 051.) After Taibi filled up capstan he secured the tail end of the line to the H-bitt locat Tug close to the Tug's after bulkhead. on the centerl of Taibi made the line fast with three figure-eight turns with additional turns up to the top of the vertical post. (Tr. Trans. at 1033; see, e.g., Exhibits 336, photos 005 and 014; 344, photo 053.) 14 wind was blowing northea At this point, mph, it was 35-40 de it and vis s (Tr. Trans. at 79; t 1120.) The current of t degrees true, and t Trans. at 286.) 9.) iIi It was raining. which was heading (Tr. Trans. at Hackensack River was fl at 56 reciprocal was 222 degrees true. (Tr. inst the direction of t r. (Tr. Trans. at 80.) was approximately two and a half knots or more. It was a "good flood current." Tug and Barge, The current (Tr. Trans. at (Tr. Trans. at 80.) Young assumed the watch at midnight and held Allen a pre-shi was "fair." current was a flood current, meaning the current was upriver 288.) 25 pi ann meeting before the unit got underway. (Tr. Trans. at 138-139; 143; 167-168; 1034; 1224; Exhibit 2). Ba just a 27, 2009, and Tug departed Ferry on December r midnight. After tt underway, Allen steered from the upper wheelhouse of lley. by in the Hackensack two Barge. (JPTO 8 and 9.) Duri t trip down the r, the starboard towline developed about one to of slack due to the maneuve (Tr. Trans. at 82-83.) At hour after while Young stood rting Little Ferry, t 15 of the Tug and the 1:00 a.m., or about an Barge and Tug were s and approaching Buoy 18. between the Route 3 tandem br (Id.) Allen contacted t an ing. upcoming Jackknife Bridge to ask for 86-87; 146; Exhibit 3). Then, us (Tr. Trans. the Tug's radio, Allen conta Young in t him to get ready to tighten up the lines. It was still ra (Tr galley told 1 Tr. 87; 146.) een to twenty knots. ing with a wind of (JPTO 11: Tr. Trans. at 129; 138 39.) When summoned by len, Young was engaged in a conversation with his wife on his cell phone and asked if he cou wait ins the gal of the weather conditions. 171; Exh 377. ) a bit longer. Allen agreed because (JPTO 23; Tr. Trans. at 84-86; 147: Just past t (near the "dolphins" mar second of t Route 3 idges on Exhibit 4), Allen instructed Young to head aft to begin the line tightening in the swing rna n e u v e r . ( T r . Trans . at 14 6 - 14 8 ; ibit 4.) Young acknowledged the order, left his cell phone and eyeglasses in the galley, walked ck to the a Allen deck. (Tr. Trans. at 87; 101; 171.) the swing maneuver as Young was walking aft (see Tr. Trans. at 88, 89, Exhibit 6 len Statement")l), 1 The "Allen Statement" is the statement Mate Allen wrote for himself ~wo or three after the incident. (Tr. Tra~s. at 96-97.) Allen that when he wrote the statement, he was "obviously trying to be as accurate in [his] recollection as possible." (Tr. Trans. at 97.) 16 and "put the right rudder and started the swing as [Young] to come out on deck." [ ] called (Tr. Trans. at 99; Exhibit 6.) Allen put the right rudder in for about four to five seconds before beginning the second step of the maneuver, the Ie swing. (Tr. Trans. at 90.) During that four to five seconds the first turn, Allen swung the Barge approximately five degrees to the right. (Tr. Trans. at 90.) Allen saw Young walk aft and observed his shadow moving around the aft deck area. (Tr. Trans. at 148 149; 1231.) From the upper wheelhouse, Allen could not see Young operate the capstan or handle the lines. (Tr. Trans. at 1231.) After the Barge and Tug began swinging to the right, Allen applied Ie rudder which brought the stern of the Tug closer to the Barge, thereby gathe push gear. ng slack in the starboard (Tr. Trans. at 92; 101; 1232; 1238.) As Allen moved the rudder left, he radioed Young and instructed him to "take it as it comes." (Tr. Trans. at 91; 150-151; Stipulated Facts at ~ 26.) After Allen instructed Young to remove saw the Tug's deck lights slack, Allen icker, which indicated to him that the capstan had been activated. (JPTO 27; Tr. Trans. at 92; 101; 149; 750.) 17 Young pushed the forward button on the capstan the slack of 1-2 feet was ta began to ta Young began left turn len proceeded with ely 35 to 60 seconds. After the capstan and n in Young st on the H-bitt. 2 off the 1 unwrapping the H-bitt. approx (Tr. Trans. at 293.) took in the slack. controller (Tr. Trans. at 94; 99; 312.) er putting in the left rudder, Allen wanted Barge to swing towa and eastern side of the Hac his ta Tug , a set of condos on the Jacknife Br sack River near During t left turn, (Tr. Trans. at 105i Exh it 5.) and Ba past the condos and past the began to swi Tug course, towards a shallow 14-15' deep mound near the eastern bank the river. (Tr. Trans. at 105-106.) After the le swing went too far past the condos, Allen then put in ri r to check the "all-fast" call swing although had not yet received (Tr. Trans. at 99; 102; 130.) Young. Because of Young's death and the absence of any eyewitnesses, the findings Young's acts are based on the established facts and the logical inferences from those facts. (Tr. Trans. at 92; 101; 293.); see a1so Mi11er v. Phillip, 813 F. . 2d 470, 477 (S.D.N.Y. 2011) (a fact finder is entitled to draw "reasonable, logical, proper, just inferences ff from facts had already found, but is not allowed to "speculate" or "jump beyond" the "logical extension" and "conclusion" of the facts); Peop1e v. Benzinger, 36 N.Y.2d 29, 32 (N.Y. 974) (an inference must only be drawn fror:1 a proven fact or facts and then if the inference flows naturally, reasonably and 1 cally fror:1 the proven fact or facts, not if it is speculative). 18 , Allen r putting in right to notice loss of control of the Barge and Tug and saw the port push gear in the water (Tr. Trans. at 99; 101; 287), which indicated that starboard push line was not taut. Barge and Tug continued moving toward the east bank of t river, significantly off the current and swung upwa of 50° or more (Tr. Trans. at 287.) off the current. When Allen commenced the right turn and as the Tug's stern swung to port, the to start to pull rces on the towline cau the 1 the capstan. Young started to radio Allen, 0 and got entrapped in towline a er 20 feet paid out. Two more turns of the capstan paid out as Young was s zed to death and 30-50' of line paid out as the starboard line slack, moving thereafter came response to the movements of Tug (Tr. Trans. at 301; 314.) and Barge. Allen concluded t something had gone wrong on aft deck and attempted several times to call Young on the radio but rece no response. no steering tightly connected. (Tr. Trans. at 104; 151.) lity because the Tug and Ba len had were not (JPTO 31; Tr. Trans. at 151-152; 155.) 19 Allen then rushed down to the aft deck. 156.) (Tr. Trans. at 106; It took Allen about sixty to ninety seconds to arrive there from the wheelhouse. (Exhibit 190 at 10 (referring to Allen deposition testimony).) When Allen arrived on the port side of the aft deck, he walked toward the capstan on the aft side of the H-bitt, and noticed that turns line had been removed from the H-bitt. (Tr. Trans. at 107-9.) He did not see Young as he walked toward the area in between the H-bitt and capstan. 109.) (Tr. Trans. at The line between the H-bitt and the capstan was slack and on the deck. (Tr. Trans. at 110.) Allen then walked directly between the H-bitt and capstan over the towline. 111.) (Tr. Trans. at Allen did not see Young until he brushed up against him and saw him caught in the capstan. (Tr. Trans. at 109-110.) Young's body was elevated off the deck and facing a and his head was on the forward portion of the capstan at the 12 o'clock position. le (Tr. Trans. at 99; 110; Exhibits 6, 14.) the aft deck to get Best and Staszko. Allen then (Tr. Trans. at 112.) Best arrived on the port side of the aft deck and proceeded behind the H-bitt and arrived at the capstan. Trans. at 199-200.) (Tr. Staszko came down the starboard side. 20 (Tr. Trans. at 1162.) (Tr. Trans. at 202.) capstan and the h-bitt was taut. found Young's o'clock pos tween When Best arrived, he found the line He ad on the port side of the capstan at the 7 ion and Young's body was positioned at an angle, further to the port side than s lower body with his lower body (Tr. Trans. at 200-202.) capstan. at around 10 o'clock on s chest against Young's right arm and hand were tucked into e and ho the capstan and his left arm was hanging radio microphone. (Tr. Trans. at 110; 203.) wraps of rope around Young. ng the There were two (Tr. Trans. at 207.) After unwrapping the lines around Young, Staszko and Best lowered Young's body to the they were t k, ing sure to "keep things t best [they] could." way (Tr. Trans. at 1163-1164.) crime scene photographs show Young's head position to the starboard side of his body, with s head located approximately at the 7-8 o'clock position. Staszko and Best arrived at the a (Exhibit 271.) When deck, they saw that only a single figure-eight turn was around the h-bitt, that the line between capstan and h-bitt was tight and that there was a 1 set of turns around the capstan. 205; 207; 233; 235; 1096; Stipulat 21 (JPTO 34; Tr. Trans. at Facts at ~ 34.) Best then activat the 1 r to make up o recalled bringing in a 14.) the capstan to start pulling in The 1 to the Barge ~s--tload" (Tr. Trans. at 212 was piling up so high that Best had to push it to starboard to keep it from fall Trans. at 214 15.) onto Young's body. (Tr. Best first estimated that 30 when informed t had paid out, approximat of line. in and of line 30 feet of line is y five or six revolutions of the capstan, Best responded "[w]ow, seemed more than t " (Tr. Trans. at 217.) Best affirmed his deposition testimony at trial, that "[I] - it seemed Ii say maybe feet of 1 a mile of line. S . . But I would Somewhere between 30 and 50 ose to 50 feet " like . It (Tr. Trans. at 219.) During t process of loweri Young to the deck and retrieving the line, the Tug was drifting back and forth. (Tr. Trans. at 209-210.) During t subsequent invest Tug was boarded by t 1 Medical that morning, the New Jersey State Police, the New Jersey r and the U.S. Coast Guard. (Tr. Trans. at 1098; 1100; see, e.g., Exhibits 7; 8; 9; 186; 189.) tan was tested in t The presence of the Coast Guard, and it 22 was scovered that reverse direction. capstan could not be operated in the An engine room inspection by Best and the ing officer confirmed that the capstan's Coast Gua investi reverse re y had overloaded and tripped out. 158; 1101-1102; 1301-1303; Exh ts 191, 194); (Tr. Trans. at (Tr. Trans. at 160; 234-235; 235; 1102; 1234-1238; 1310; 1320.) Moran suggests that incorrectly pressed s result because Young reverse button ins of the rward button when he initiated the capstan, and this was the cause of the line paying off and Young's subsequent death. Yet, there is not any evidence presented as to a cause for the trip ( so known as a "thermal overload"), since neither one turn of the 1 around t H-bitt nor Young's 200 pound body trapped in the capstan would provide necessary tension for an overload. Trans. at 307-308.) the towl Nor was a "hockle" or "asshole" found in , which could have caused the overload that night. (Tr. Trans. at 223.) Moreover, if the towline was slack after Young had been entrapped, as Allen testified, the towline could not have caused the thermal overload to trip, s order to t (Tr. in the overload, there needed to be tension or load on the tailing side of the capstan. (Tr. Trans. at 307-08.) The starboard gear would also have had to go slack first as 23 line paid out In reverse, but Allen has no recollection of that, only that the port gear went slack, which is consistent instead with Claimant's theory of a pull off of the starboard push 1 under great loading. (Tr. Trans. at 104; 319.) Further, during testing by Claimant's expert aboard the Tug, the capstan would not stall, let alone trip the thermal ove oad, with one or two turns on the H-bitt. 289-290; Exhibit 309.) In fact, (Tr. Trans. at Dr. David Tantrum ("Tantrum"), Moran's expert, acknowledged that a line with one turn or one and a half turns on the H-bitt would not cause the line to go hard, as required by Moran's reverse button theory. No evidence was adduced indicating a cause for the line to go hard to stall the capstan. (Tr. Trans. at 71.) Additionally, if Young mistakenly operated the capstan in reverse and got caught in the capstan rotating in reverse, "the only forces on Young [would have been] the weight of the push ar and the resistance offered by one figure eight on the h-bitt," which would Id squeeze forces of approximately 3.5 to 6.7 PSI, not enough to cause Young's crushing injuries. (Tr. Trans. at 305; 318.) Young's body positioning, in that he rotated in the capstan from the 12 o'clock to the 7 o'clock position, also 24 accidentally hit the reverse precludes the theory that button. (Id.) Because the capstan turns both forward and reverse) at approximately one foot per second, the capstan would have to rotate for at st 30-50 seconds in order feet to payout, during the r 30 50 st 10 seconds of which Young would (Tr. Trans. at 319-20.) have been caught in the capstan. Young would have had to watch 20-40 feet of towline payout for 20-40 seconds without taking any corrective action for the Moran theory to hold. (Tr. Trans. at 253-54.) The reverse mode on the capstan was also hardly ever used and the thermal overload could have occurred at any t 27,2009. prior to the morning of December (Tr. Trans. at 1166.) After the itial investigation, on January 26, 2010, the Occupational Safety and Health Administration ("OSHA") conducted an inspection of the vessel and on March 31, 2010 issued a citation against Moran, alleging certain violations of 29 C.F.R. and the Occupational Safety and Health Act of 1970. The tation stated that "[i]ssuance of this citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided or if contest ,unless this Citation is a Commission or Court." (Exhibit 167.) 25 r in the Act, irmed by the Review the citation, and it was later Moran conte withdrawn unilaterally by OSHA without any cons ration by Moran or agreement by Moran to perform any abatement. E to Petitioner's Mot Exhibits B, C, 0, Exclude OSHA tat (See in Limine to .) Examiner Alex Zhang ("Dr. Zhang") made the The following post mortem findings at autopsy. In terms of external factors, Dr. Zhang determined that the 1 ssing his right Young's torso wrapped twice around r chest down toward left abdominal area, leaving pronounced ligature marks. 395 p. 24; 32.) diffuse He determined that t hemorrhaging indicat causing re of the small ve head and chest showed blocked circulation llaries. (Exhibit 395 p. 29-30.) In terms of internal whi certa rs, Dr. Zhang found abdominal organs were herniated downwards scrotum, others, including upwards through the tear lacerated liver, were aphragm and into t t y, collapsing t t left eural cavity. o rniated right ght lung and pushing it into t 26 395 p. 32.) In ion, Dr. Zhang determined the massive pressure from the line fractured twenty-one , mostly on the right side, preventing Young from even taking a breath. t t report also states the sacrum, (Exhibit 395 p. 33.) lumbar vertebral body was separated t 395 p.43), and that all transverse processes were fractured. Dr. Zhang found s His lumbar (Exhibit 395 p. 43.) when the sacroiliac joint rated, it transected or severed the abdominal aorta and vena cava, the two major blood vessels in the body. 42.) Dr. Zhang concluded t Young's severe inju a traumatic or mechanical a s death. caus 820.) circulatory collapse. (inability to function, sness. (Exhibit 395 p. 58.) marks and hemorrhaging, Dr. r concluded that Young's ing constricted in the Tr. at 29-30.) fractures separat Dr. Zhang noted that also had a partially 1 s. followed by Once Young's oxygen Based on the 1 he was the) (Exhibit 395 p. 66.) saturation dropped, he lost consc whi es resulted (Exhibit 395 p. 50-53, 68; Tr. Trans. at Young lost all respirat Zhang 395 p. continued pumping stan line. (Zhang had over 20 rib lung as well as a (Zhang. Dep. Tr. at 33; 34; 39-43.) 27 These , but he injuries would have caused Young difficulty breat could still have taken in some oxygen while being compressed. (Zhang Oep. Tr. at 823.) The an line funct as a tourniquet, allowing blood to continue to circulate to Young's heart and brain while he was being compressed. (Z Dep. Tr. at 44; 54; 56.) petechial hemo Dr. Zhang noted that observed the post-mortem 823; 826.) nation indicated a body and a conti squeezing of s heartbeat. (Tr. Trans. at While the heart continues to beat, it pre pumps blood to oxygenated. brain so that t (Tr. Trans. at 824; 827.) hemorrhages, lly n can continue to be Based on the pet ion of the traumatic injuries and t absence of blood below the torso, Dr. Zhang concluded that Young was conscious for more than two minutes. (Zhang Dep. Tr. at 56 59; Tr. Trans. at 825-26; 829.) linger ("Dr. Bolli Dr. Ba forensic pathology rt, also offered rlt), Claimant's r opinion that Young been able to remain conscious for at least two minutes following his ent linger based her conc (Tr. Trans. at 828-829). Dr. ion that Young was conscious for two 28 to three minutes on the sence of petechial hemorrhaging, and cited a medical study entitled Asphyxial Deat In contrast, Dr. Lone Thanning and Petechiae. ("Dr. Thanning"), Petitioner's forensic pathology expert, concluded that Young had lost consciousness within ten seconds. 1516). (Tr. Trans. at 1515 Dr. Thanning supported his testimony by opining that Young lost consciousness as the result of a neurogenic coma, his crushing injuries that were caused by intense pain incompat a Ie with conscious survival and evi tal reaction. (Tr. Trans. at 1541.) the absence of signi maintained pleural cavity, after twenty-one rib instantaneous drop in consciousness. ood nced by a lack of Dr. Thanning also cant blood Young's ctures, evidenced an ssure, with concurrent (Tr. Trans. at 1508-1509.) Dr. Thanning s of d not question the testimony of Dr. Zhang as to how much blood specifically was in the pleural cavity, other than to note his report which speci ed a (Tr. Trans. at 1545-47.) CCs. Dr. Thanning subscribes to the Forensic Examiner, the Hournal of Human Pathology, and the Journal of Investigative Laboratory methods. though, phys (Tr. Trans. at 1538.) At t time of his deposition, Dr. Thanning had not produced any medical journals, 1 evidence from t autopsy, or other support for his 29 - ~"-~~~~-~----~~-------------------- that vital reaction would begin to show within ten theo seconds or that pain alone would automatically cause a person to become unconscious. (Tr. Trans. at 1543-45.) Dr. Thanning also had not read any study about the amount of compression a human body can sustain while rema 1544.) ng conscious. (Tr. Trans. at Dr. Thanning acknowledged instead that everyone has a different unique threshold of pain, for instance one person may remain cons ous during amputation while another may not, and rsonal pain threshold. that he was unaware of Young's (Tr. Trans. at 1543-44.) In all of his times testifying about pa and suf ring, Dr. Thanning could not recall ever testifying that the excruciating pain of crushing injuries was t precipitating factor of a neurogenic coma that would cause almost immediate loss of consciousness. (Tr. Trans. at 1552.) Based upon the credible testimony of Dr. Zhang and Dr. Bollinger, and the conclusions, Young remained cons a r r Dr. Thanning's ck of support ous for at least two minutes coming entrapped in the capstan by the towline. Experts also testified as to the holding and pulling forces that result in the paying out of the towline. 30 credible evidence of t ("Eckhardt"), es Claimant's expert, Ii khardt the value of the ing forces. The primary purpose of the capstan is to pull a load. (Tr. Trans. at 291.) When there are sufficient w capstan and sufficient can pull up to the I ck tension on the tail side, then it t of its horsepower, or in this case 5,500 pounds (consistent with a ten horsepower Trans. at 291.) around the The stan) . an has a resistant force (Tr. avily dependent on the coefficient of friction of the type of w d around it. (Tr. Trans. at 293.) When Young was on the capstan, there was one figure-eight turn on t .) the rope pulls off Based on the knowledge t with two turns on tt. h-bitt, the type of , and the that the holding force was 5,5000 pounds, Bart Eckha ("Eckhardt"), Claimant's expert, applied a formula to a dete for the coefficient of friction of the rope. ned that the coeffic of .19 and .22, but most likely at 293; Exhibit 392.) Additional through a "four-part purchase" on ne He (Id. ) iction of the rope us oser to .19. was (Tr. Trans. starboard towl ran s way from the Barge to capstan, which provides a four-to-one "mechanical advantage" of the capstan. (Tr. Trans. at 301-02; 31 ibit 184, photo 28.) With this information, Eckhardt calculated how much the capstan could hold with four turns and with five turns with the maximum back tension offered by one figure eight turn on the H-bitt. (Id. ) Accounting for the four-part makeup's increased holding power in his calculations, Eckhardt testified that the actual force exerted by the capstan, or what the capstan is capable of holding compared to what forces it is subjected to, is 5,5000 times four, or 22,000 pounds. (Tr. Trans. at 302.) Thus, if the forces exerted on the capstan by the current and the Barge were greater than 22,000 pounds, then the line would be able to pull off. (Tr. Trans. at 299; Exhibit 90.) The current of the Hackensack River was flowing at 56 degrees true, and the reciprocal heading was 222 degrees true. (Tr. Trans. at 286; Exhibit 91.) The intended course of the Barge and Tug toward the Jacknife Bridge was 201 degrees true, or 21 degrees off the current. (Tr. Trans. at 287; Exhibit 91.) During the first turn of the swing maneuver, the unit swung approximately five degrees to the right. (Tr. Trans. at 721.) At that point, immediately prior to beginning the left (second) turn, the Barge and Tug were on an angle approximately five to ten degrees off the current. (Tr. Trans. at 287; Exhibit 91.) 32 The Barge and Tug were at that angle for approximately 35-60 seconds. (Tr. Trans. at 94; 99.) degrees off the cur when on a line toward the bridge. Trans. at 287; 298; Exhibits 5, 30 degrees off condos. unit was approximately 20 91.) The unit was approximately current when it was on a 1 (Tr. Trans. at 298; Exhibits 5, to go to the a deck a r realiz 91.) recall condos, towards the When Allen left something was wrong, unit was at about 171 degrees true, no more the current. (Tr. es off 50 (Tr. Trans. at 287; Exhibits 5, 91.) the Allen seeing the Barge and Tug swing past his line to the l eating that he put in right rudder when the Tug and the Barge were more than 30 degrees off the current. (Tr. Trans. at 105.) At 10 degrees off current, the Barge and current were exerting approximately 39,000 pounds on the capstan. Trans. at 299; Exhibit 85.) (Tr. At 20· off the current, the Barge and current were exerting approximately 81,000 pounds on the capstan. (Tr. Trans. at 299; Exhibit 86.) At 30· off the current, the Barge and current were exerting approximat 170,000 pounds on the tan. y (Exhibit 89.) At 40' off the current, the Barge and current were exerting approximately 219,000 pounds on the capstan. (Exhibit 89.) At 50· off the 33 current, the Barge and current were exerting approximately 279,000 pounds on the capstan. (Exhibit 89.) Due to the 4-part purchase, each of the previous five calculations must be divided by 4. (Tr. Trans. at 305.) Even with this division, the "pulling forces" on the capstan were greater than the "holding forces" at every 10· interval starting at 20 degrees, or when at least 20,000 pounds of force from the "pulling forces" (81,000 divided by four) were acting on a capstan with four turns around it and with a conservative backtension approach. (Tr. Trans. at 299-300; 305.) At angles beyond the line to the bridge, or approximately 21 degrees on, the force was sufficient to pull the line off of the capstan. (Tr. Trans. at 300.) Assuming there were five turns around the capstan, Eckhardt testified that under the conservative approach (with maximum holding power on the H-bitt), the line would pay off at 50· off the current. (Tr. Trans. at 392.) To ensure a conservative assessment, the assumption that five turns were around the capstan is adopted. If there was slack between the H-bitt and the capstan (as there would have been had Young been untying the wraps around the capstan), the holding forces would drop considerably, 34 and the line would payout at an angle off the current of less than 50·. (Tr. Trans. at 392-93.) The time it would take the unit to swing off the current to its pas ion at 171 degrees true was approximately 45 seconds and, after Allen entered the final right rudder, would take approximately 15-18 seconds for the line to pull off the capstan. (Tr. Trans. at 301.) Thus, even with five turns on the capstan, the forces exerted on the capstan when Al overcome the holding put in right rudder were enough to of the capstan, or the 22,000 pounds, and cause the line to pull off. Further, the 30-50 feet of line that pulled off was consistent with the angle of the Tug in relation to the Barge following the last right turn by Allen. The 30 50 (Tr. Trans. at 315.) et of line corresponds to a difference of approximately 10 feet in length between the front, right corner of the Barge (in relation to the Tug) and the right quarter h bitt of the Tug, due to the four-part purchase. 302-303; 315.) front, (Tr. Trans. at For every 10 feet of separation between the right corner of the Barge and the Tug's right quarter bitts, 40 feet of rope will come off the capstan because of the four-to-one makeup of the push gear. 35 The physics and force calculations comported with the descriptions from ct witnesses and est lish that, to a reasonable degree of certainty, the towline pulled off the capstan as a res t of Allen putting in right rudder to check the left swing before ing the "all fast" from Young, the capstan not yet being secure. re is no notch in bow of the Barge in whi "embedded," the "depend[s] purely on 296.) (Tr. Trans. at 327.) of the Tug aga t tension of the lines." Because tow can t Barge t (Tr. Trans. at The calculations as to the resulting tension on confirm the explanations by the Claimant, as lines shows t the forces were high enough when Allen turned at more than 30 degrees to pull the I capstan. off (Tr. Trans. at 293 94.) Moran's expert, Tantrum, in turn calculated that was not enough force exerted stan. the line to pull off t his calculation of t Tantrum acknowledged coeffi ent of friction was incorrect based on using the wrong type rope, and that Eckhardt's cal to s number, but with re accounting to t the four-part pu ations were correct as overall calculations, se, Tantrum testified that there was only 3,437 lbs acting on 36 capstan. (Tr. Trans. at 43-44.) Because the holding force of the capstan is 22,000 lbs, the capstan would be able to hold the load and the line would not pull off. Tantrum's theory is precluded by t testif facts as d to by the eye witnesses and by the specific circumstances of the accident. Tantrum, unlike Eckhardt, did not base his calculations on the medical evidence establishing Young's injuries. (Tr. Trans. at 55.) The medical evidence shows that the Young's injuries are only possible as a result of the forces present in Claimant's theory. (Tr. Trans. at 56.) force under Tantrum's payout theory, contrast, sufficient to cause Young's crushing injur 319.) s. T squeeze is not (Tr. Trans. at Tantrum testified that he did not investigate or look into whether this medical evidence was accurate, or whether his t o r y could poss y create the injur s that Young suffered. (Tr. Trans. at 55-56.) Tantrum's theory also does not comport with the established facts of Young's body positioning and the slack in the line at the time of Young's death. 37 Allen testified that when he found Young's body, the line was slack, with at least some 30-50 of line on the ground, which he had to walk over to reach Young. (Tr. Trans. at 51.) Tantrum's calculations are ba on the line being taut. was slack, as Allen testifi (Tr. Trans. at 52.) If the line ,Tantrum admitted that his theory does not hold and cannot account for the some 30 50 feet of line (Tr. Trans. at 56-57.) found at Young's death. Tantrum's testimony of Allen, Best and theory likewise discounts Staszko, that Young was facing starboard when he was found, and that his body rotated in the capstan from a 12 o'clock posit to an 8 o'clock pos ion, bringing the line from slack to taut. (Tr. Trans. at 53.) If Young's body did rotate, as all three eye witnesses testify to, Tantrum acknowledges that his theory fails. (Id. ) In addition, Tantrum's calculations relating to the four il to take into account the purchase circumstances af at opined that the four an as oppo barge. (Id. ) on the lines and the capstan cting the time of Young's de to t ific (Tr. Trans. at 48 ¢ ) Tantrum rt make up would reduce the line on the ad at the rge, which would be F- The force of F-barge was calculated as thrust of 10,000 pounds by a moment arm of 4, or 44 by 10,000, which 38 would rna 32,000 by t the F-ba Trans. at 49.) At ba (Tr. is point, Tantrum explained that the sum of the moments equals zero, as should line on t 44,000 multiplied by 10,000 equal to 32 feet, which is the moment arm by or a load of 13,750. by Tantrum, is (Id. ) F-barge, or t F-barge~ 13,750 calculated force that would be in a single line. Trans. at 50; 436.) Since the force on the the four part lineup, Tantrum then divided get 3,437 pounds. (Tr. Trans. at 49.) (Tr. stan goes through 13,750 by four to Because the holding ce of the capstan is about 22,000 pounds, as agreed to by both Tantrum and Eckhardt, with Tantrum's calculations, 3,437 pounds would not be enough capstan or is the line to pull off the Claimant's theory to hold. (Tr. Trans. at 49 50.) These calculations re are from per tan, and do not capstan at ct of ing to the four corner of the Barge, not the ctor in the outsi time of Young's rt purchase ath. forces acting on (Tr. Trans. at 69.) The 13,750 Ibs calculation assumes the Tug and Barge are balanced under a perfectly executed swing maneuver where the capstan is secure. (Tr. Trans. at 437.) The 13,750 Ibs at F-barge does not take into account the influence of the current or 39 forces acting on the Tug when Allen initiat right rudder over 10 s off of the current, creati as t tional current forces Tug tried to pivot the Barge opposite direction. (Tr Trans. at 442.) Under these circumstances, and when calculating F-ba to the perspective of rce would be required line off the capstan, t 1 account F-barge force, r the four part purchase, is 55,000 pounds. Trans. at 430). Tantrum admitted that if 13,750 pounds was at the capstan, or 100 ying through the four part series, t approximate at the equilibrium , then re would be , which 55,000 pounds at the corner of t would be enough to pull the line off the capstan. at 69 70.) is cal comports with placement and t (Tr. assumed that the calculation from the point of view of the mult even (Tr. Trans. ation of F-barge as 55,000 pounds s as testified to re ng Young's body slack in the rope, and the injuries t t Young sustained. Further, Tantrum's calculations are bas on numbers calculated by Rick van Hemmen ("van Hemmen"), also a Moran expert in this case. (Tr. Trans. at 66.) a 12 o'clock position against the that when the tug Barge to a 4S-degree Van Hemmen i on as the line moved out, you would 40 only see 10 feet. (Tr. Trans. at 68.) Is to calculate in the four the 10 However, purchase, which would cause to translate into 40 feet of line. that rests on t capstan. (Id. ) s was incorrect. (Id.) (Tr. Trans. at 57 58; 71-72.) Tantrum's theory also The facts as found this assumption. In addition to Tantrum's cal roduced a video simu ations, Moran also ion to show that the capstan can hold th four or five turns under the normal the 1 of a swing maneuver. ils to Tantrum assumption that Young hit the reverse button of the above precl inc is figure (Tr. Trans. at 47.) This rcumstances deo, though, icate the specific circumstances the night of the that contributed to Young's death. Specifically, the does not document the Tug swinging left too far past len attempting to correct this error by intended course, or putting in the right rudder too early and before he had rece "all-fast" from Young, result in Allen noticing a loss of control of the Barge and the Tug. (Tr. Trans. at 99; 101; 287.) was ba on the facts on the evening imant's of Young's death as testified to by both Best and Allen. Trans. at 27 32.) Claimant's video showed that Al 41 (Tr. did not r enough initially; that t swing the Tug to the right then began swinging le lights dim as operated earlier than normal; that swung le len saw the and knew that meant that Young capstan; that came concerned it was too Young; that at this point, d len continued swinging left but r le right rudder to correct this before 1 Tug that he then turned the received an all-fast from noticed a loss of control as the began pulling out (as shown in the animation); and the pivot of the Tug against the Ba as Allen lost control, given that Young had not had enough time to finish loading the h-bitt, 1 off caused the line to ensnared. capstan and Young to get (Tr. Trans. at 29-30.) the difference between these speci Claimant's v o demonstrated c events and that of a properly timed swing maneuver, where the capstan can, as Moran shows, hold the line. that on the (Tr. Trans. at 30.) The video indicat ght in question, the initial turn did not go far enough right, leaving less time to swing ft. (Id.) Once the Tug swung left, the slack developed, and there was not enough time for Young to finish the procedure to secure the slack. (Tr. Trans. at 30-31.) when he arrived. (Id.l Best found only one turn on h-bitt Because there was only one turn on the h-bitt, the forces entered the push gear and caused the line to pUllout. (Tr. Trans. at 30). In contrast, in a normally and 42 correctly execut the swing maneuver, as shown in Moran's deo, khand, would have had time to finish making fast the h bitt be re the final ght turn, and from pulling out and allow 1 (Id.) s would prevent the capstan to hold the line. While Moran did show that a swing maneuver can be executed without accident under normal circumstances. Claimant's deo, which took into account the relevant facts as testified to by Best and Allen, is therefore credited. With re ct to safety precautions and delines, Moran's OPPM is the manual in which Moran lists the "procedures Moran uses." (Tr. Trans. at 1398; Vice President of New York and Off ("Keyes") is responsible for ibit 313.) Moran's re Operations Peter Keyes OPPM. (Tr. Trans. at 1398.) OPPM contains certain written instructions and procedures governing kitchen operations, such as using an oven glove to handle a hot pot and how to safely put away knives in the ct to line dishwasher, but contains no instructions with re handl or swing maneuver. (Tr. Trans. at 1406 (there is "nothing in the OPPM about the swing maneuver.").J Moran also adheres to the International Safety Management Code ("ISM Code"), even though it 43 s not have a certificate of compliance the Tug under the ISM, Respons at 1399-1400; Exhibit 305), and t ("RCP") . Carrier Program (Tr. Trans. at 1399.) ISM Code requires " (Tr. Trans. for shipboard operations, company should establish procedures, plans and instructions, including checklists as appropriate, shipboard operations concerning t (Tr. Trans. at 1400.) r key safety of the personnel." Moran did not a risk assessment a swing maneuver and did not view a swing maneuver as a "key shipboard operation." (Tr. Trans. at 1404.) requires that Moran "assess all identi [and] personnel." haz ration to ed risks to its sh (Tr. Trans. at 1402; Exhibit 305.) analysis would list the following: complete the task; (2) the (1) tigate the risks. steps to measures needed (Tr. Trans. at 629, 642.) employ a job hazard analysis ng maneuver, desp t A job zards that might arise if the wrongi and (3) the precauti Moran d not r line handling including the the fact that the swing maneuver conducted by Moran is the type of a job hazard anal ISM Code also ration t is amenable to is a task that involves a is because stan that comes under heavy I 624; 640.) 44 and stra (Tr. Trans. at The Rep requires companies such as Moran to "establish documented procedures for the sa shackles, ratchets and winches." 399.) use of wires, ropes, chains, (Tr. Trans. 1400; Exhibit The capstan is a type of winch, yet no such procedures regarding the capstan are established by Moran. (Tr. Trans. at 605.) Moran also has a duty to identify topics that raise safety concerns, and require its captains and employees to address these issues and train for them. (Tr. Trans. at 1405.) These safety topics are identified and submitted to captains in the form "Port Advisories" and "Port Specific Operational Guidelines," and then the captains discuss these topics with their crews during monthly safety meetings. 1136; 1407-1408; Exhibits 177, 178.) its captains with sa (Tr. Trans. at Moran management provides y topics that must be covered, and the captains then cover those topics with their crew. at 1144.) Moran did have written procedures r other types of maneuvers, such as the retrieval of a lost barge. at 1406.) (Tr. Trans. (Tr. Trans. None of the Port Advisories issued by Moran to its captains prior to December 27, 2009, covered "safety 45 procedures." sa (Tr. Trans. at 1405-1406; Exhibit 178.) y meetings conducted by Captain Staszko accordance with Moran's directives in the year prior to Young's death did not cover any sa 258.) y concerns. (Tr. Trans. at 1137-1138; Exhibit No Port Advisory concerned line-handling generally or capstan operations spe fical Further, the safety topics year preceding Young's death never cover operations. capstan (Tr. Trans. at 1046-1047; Exhibits 178, 258.) Moran also did not have written procedures instructing the mate or captain at the controls during a swing maneuver that was necessary to wait for an "all back right. (Tr. Trans. at 713, 1412.) st" call before coming It is essential to have "positive communications" throughout the entire swing maneuver because deckhands are responsib the maneuver can proceed. the line must be secure be Trans. at 642; 713; 715.) for lines under strain, and Ot subject crewmembers on deck to rwise the gear could sl al hazards. (Tr. out and (Tr. Trans. at 632; 643.) In addition to a lack gui lines and safety procedures, swing maneuvers and swing gear in general are antiquated, and most tugboat companies have replaced boats using 46 the ng maneuver with "sa methods, which using (Tr. Trans. at 640.) r, more rugged, more reliable aves and a tow drum is a lot stronger." Moran is thus part of the minor tugboat companies that still employ swing maneuver. Moran was aware of at least seven inci Young's death where Moran employees were inj operations. (Tr. Trans. at 1417-1419.) a 2005 incident company, K-Sea, got crushed in a s. s prior to during capstan Moran was also aware of khand from another tugboat which a Sea while handling I y of tan aboa the tug (Tr. Trans. at 1419-1420.) s After that incident, Moran still did not issue any Port Advisory or change in way the manner in which tasks involving I sand capstans, including the swing maneuver, were tra conducted. or (Tr. Trans. at 1402-1421.) With respect to the equipment used on the Tug, triangular area between the capstan, h-bitt and capstan controller crea a "danger zone" in which Young worked. Trans. at 328; Exhibit 384, photos 3, 6.) (Tr. On several other Moran and other company tugs, the controllers were up to 6-7 feet away from capstans. (Tr. Trans. at 558 61.) 47 OSHA investigat the Tug followi Young's death furnishing Young with an unsa workspace, cited Moran in lation of 29 CFR 1910.212, specifically section 5(a) (1) of Safety and 167.) Ith Act of 1970. OSHA stated that the powered khand "operated an electrically ng to prevent into the nip point." Young's death, Occupational (Tr. Trans. at 330; Exhibit an that had no gua from being (Exhibit 1 employee .J capstan controller was reloca behind the H-bitt, thereby allow of the danger zone. r After to an area a deckhand to work outside (Tr. Trans. at 225; 336; Exhibit 390, photo 20. ) Regardi Young's personal li rcumstances, Young supported a h He was mar ly financially dependent on to Avril Young. and were married three years later, 902-03.) Though Avril had a son from a was the first marri Trans. at 903.) and financial two met as 1972. rs (Tr. Trans. at r relationsh for both Avril and the Decedent. ,this (Tr. They were a close couple, friends as well as es, talking by phone every day that Young was on the Tug. (Tr. Trans. at 72; 930.) 48 Soon after marrying, in the fall of 1972, Avril gave birth to Young's daughter, Sheila. From the time Sheila was a young child, she and Young were very close, Young cooked for ila and Don, Avril's son, helped with the house work and shared parenting responsibilities with Avril. ila suffe 904-05.) (Tr. Trans. at from seizures as a baby and when she started school the Youngs discovered that she had learning (Tr. Trans. at 907.) disabilities. ila was sent to a school for children with special needs when she was between 10 and 12 rs old. (Tr. Trans. at 907.) She did not graduate from high school, nor has she ever held a job. (Tr. Trans. at 911; 988.) Sheila has a daughter, Katelyn Rebecca, Young's only grandchild, - who is almost five years old. (Tr. Trans. at 987.) Avril moved to the United States in 1996. at 905.) (Tr. Trans. Before Young joined her here, the two spoke on the telephone and Avril would visit him in Guyana every year. Trans. at 940.) While Avril lived lived in Guyana with Avril's sister. the Unit (Tr. States, Young (Tr. Trans. at 940; 943.) During this time, Young had a child, Nicholas Young ("Nicholas U ), with another woman, Carol McDonald ("McDonald U ). (Tr. Trans. at 913.) Nicholas was born on January 25, 1997. (Tr. Trans. at 913.) Though Young continued to maintain contact 49 with McDonald, he and Avril never contemplated divorce. (Tr. Trans. at 929; 943; 983.) Young followed his legally immigrating, in 1999. Wl Avril to the United States, (Tr. Trans. at 906.) naturalized citizen five years later. He became a (Tr. Trans. at 910.) He gained sole custody of Nicholas as of March 31, 2003. Trans. at 914.) (Tr. Because Nicholas's mother was not able to financially support him and had moved from Guyana for work, leaving Nicholas to live with various family members, Young moved Nicholas to the United States. (Tr. Trans. at 917.) After arriving in New York in the fall of 2007, Nicholas lived with his aunt, a school teacher, and uncle in South Carol for about seven months because the Youngs could not afford childcare for the hours when Avril was working nights and Young was on the Tug. (Tr. Trans. at 916; 948; 982; 1116.) subsequently moved in with Young and Avril. Nicho s ( Id. ) According to Nicholas and Avril, Young was a loving, caring, at tenti ve parent to Nicholas. (Tr. Trans. at 918; 1688.) Even when Nicholas and Young were geographically separated, Young made sure to keep in touch with visits and frequent telephone calls. (Tr. Trans. at 919.) 50 The two would speak every seven t day and somet would ba cue and basketball. (Tr. Trans. at 919.) ce a day. ay sports together, (Tr. Trans. at 919; 1010.) luding ba Young he y 11 and d Nicholas th his homework, enlisting the aid of his co-workers on occasion. (Tr. Trans. at 239; 919.) Tug to show his son where Young took Nicho worked. s to the (Tr. Trans. at 1015.) two talked about girls, and Young was teaching Nicholas how to cook. (Tr. Trans. at 1010-1012.) school. (Tr. Trans. at 1010.) clothing cked Nicholas up from Young He also bought Nicholas's school supplies. (Id.) Prior to Young's death, Nicholas had school marks in the 80s. (Tr. Trans. at 920.) er his her's death, Nicholas's grades slipped into the 60s, he had his first school fight, he began to act withdrawn he stopped (Tr. Trans. at 920; 921; 1011; 1012.) has life. able to replace t important aying rts. Nicholas has no one that e Young ayed in his (Tr. Trans. at 1012.) In September 2008, Young in Queens as an investment prope 9 98; 9 9 9 . ) Wh i sed a studio apartment (Tr. Trans. at 955; 956; Avril did not approve of the investment, she him money for the down payment. 51 (Tr. Trans. at 950.) Though the couple's accountant claimed tax credits and deductions for the property, Young never lived there. (Tr. Trans. at 927; 955; 956; 979-982; 999.) Even after Young's death, t couple's accountant claimed the mortgage tax deduction on Avril's tax return. purchasing studio (Tr. Trans. at 981.) rtment, Young learned of an owner residency requirement that prevent immediately. him from renting it out (Tr. Trans. at 999.) Up and until t time of s ath, Young and Avril lived together at 58-03 Calloway Street in Queens. at 997; 1013.) After The Youngs shared the costs of (Tr. Trans. ir household equally, spite having separate banking and credit card accounts. (Tr. Trans. at 975; 998.) As for living expenses, Avril and Young alternated months, with each of them covering household costs every other month. (Tr. Trans. at 975; 998.) The two always filed joint tax returns with a "married" filing status. (Tr. Trans. at 979.) Young did most of the cooking, making extra food and freezing it for those weeks when he was on the Tug. (Tr. Trans. at 925.) He also did the cleaning and all childcare work for the two weeks a month when he was off the Tug. (Tr. Trans. at 5; 926; 963.) Nicholas's expenses, including clothing and sports equipment, were all paid for by 52 Young. (Tr. Trans. at 924.) Young also payed for household s, expenses such as g dinners both on c othing for Nicholas cards and with cash. restaurant (Tr. Trans. at 977. ) Prior to Young's death, Nicholas was on Moran's health insurance policy. (Tr. Trans. at 965.) received through Moran included a 401(k) pension contribut 1435.) from the company. Additionally, Avril was el benefits through t Moran policy. Young's (Tr. Trans. at 965; (Tr. Trans. at 1487.) en eligible to rece (Tr. Trans. at 1487.) Following h, no one in his family was eligible to receive those benefits longer. (Tr. Trans. at 965; 1462; 1487.) Young had no expensive at 976; 1438.) money retirement account and to receive health care Young's adult daughter Sheila may have those benefits, as well. Young's insurance onal habits. Before Young moved to (Tr. Trans. United States, he sent k to Guyana to help support Nicholas. (Tr. Trans. at 952. ) amount varied, but was usually a few hundred dollars per (Tr. Trans. at 952.) so, because of their daughter's intellectual disabilities, both Youngs financially supported Sheila. (Tr. Trans. at 911; 959; 989.) 53 sent between two and five hundred dollars to Sheila every month. Trans. at 912; 959; 990.) (Tr. funds via MoneyGram, y sent t discarding the receipt once they had confirmed that the money had arrived in Guyana. (Tr. Trans. at 960.) Young also sent ila household goods, clothing, non-perishable foods and other necessities. (Tr. Trans. at 911; 912; 925; 990.) clothing for his granddaughter, as well. Young bought (Tr. Trans. at 925.) Following Young's death, and with Sheila 1 ing in the United States, Avril has taken on sole responsibility for supporting Sheila, who currently lives on Calloway Street, and for the care of Sheila's four-year-old daughter. 983.) Avril also has sole responsibili (Tr. Trans. at for Nicholas's care. (Id.) C imant's expert Craig Moore, Ph.D., ("Dr. Moore") was a chaired faculty member of the University of Massachusetts for over 30 years, where he taught economics, statistics and finance and has published extens economet ly in the fiel c modeling and statistics. of (Tr. Trans. at 1427-28.) He was the recipient of numerous awards, including a university chancellor's award for witness. s research and was an entirely credible (Tr. Trans. at 1429.) 54 Dr. Moore calculated that had Young lived and continued to work until age 70, the economic losses incurred as a result of his death would be at least $692,235. at 1440.) (Tr. Trans. He used the age of 70 in part because (a) a Moran corporate representat ir late 60 s previously testified that deckhands work into (and at least one was 70); (b) Young had worked fields and thus had an less labor intens established work history in other areas; and (c) of the demographic shi working longer. of individuals living longer and, thus, (Tr. Trans. at 1436; 1484.) Dr. Moore so calculat the value of the services provided by a typical working her in a three-person household between the ages of when he died, and 59, Young's figure that Dr. Moore cal was $80,280. 75. ted (Tr. Trans. at 1442.) lost household se ces (Exhibit 261, 6.) Had Young lived beyond age 75, the loss of household services value would have been higher. (Tr. Trans. at 1443.) Also, the loss of household services figure did not take account t actual work that Young provided to his household, such as childcare, cooking, shopping and cleaning. at 1442.) 0 The (Tr. Trans. gures that Dr. Moore calculated were further 55 scount to on the Unit sent value bas States Department of Treasury bond rates as of November 2011. Trans. at 1439; 1443.) (Tr. Had he used bond rates applicable at time of trial, the economic losses would have been higher. (Tr. Trans. at 1439; 1443.) Moran's economic expert, Thomas Fitz raId, Ph.D., ("Dr. Fitzgerald"), did not provide any mathematical calculations or include any scription of the methodology he used in calculating his economic loss 1647; 1654.) reo (Tr. Trans. at Further, he did not "indicate what [the] deduction [for personal consumption] would have been" to Dr. Moore's personal consumption cal Fitzgerald's calculations assumed did not object ation. (Id. ) Dr. Young maintained two households and also calculated lost support that omitted fact that Young had sole custody of his minor that Nicholas had hea and there h care benefits through his step-mother attributed no pecuniary value to the loss of Moran's health care benefits. Additionally, ild and assumed (Tr. Trans. at 1638.) employed a non-existent Treasury bond rate when reducing economic loss to sent value. 1666 1667.) Accordingly, Claimant's expert calculations are adopted as more credible and reliable. 56 (Tr. Trans. at Conclusions of Law The facts establish both required elements of liability in this case. Moran is 1 rst, imant s established t le under both the general marit law for unseawothiness and for negligence under the Jones Act. Second, Moran had failed to prove a lack privity or knowledge of the fault that killed Young and should, therefore, not be exonera from or limi in its liability under 46 U.S.C. § 30505. I. Under General Maritime Law Unseaworthiness Has Been Established A. The Applicable Standard United States Supreme Court has transformed the "warranty of seaworthiness into a strict liability obligation." lmore & e Corp., Ma ck, supra, at 384, 386; see also Miles v. Apex 498 U.S. 19, 25 (1990). A shipowner "owes an absolute and non-delegable duty to seamen . s vessel to provide a seaworthy sh obli shipowner and appurtenances reasonably fit for their intended use." Pell 57 s no . Although it ion to provide an accident free vessel, does have a duty to furnish aves . properly aboard no v. A. H. Bull S. S. Co., 309 F. Supp. 839, 842 (S.D.N.Y. 1969) tted) . " standard is not perfection, but reasonable fitness." Pellegrino, 309 F. Supp. at 842. none the ss liable and irrespect Miles, (citations A shipowner is an unseaworthy tug "irre of the It ive of ng negligence of crew members." 498 U.S. at 25. "A ves 's condition of unseaworthiness might arise from any number of circumstances. appurtenances in dis men assigned to Her gear might be defect ir, her crew unfit. number of form a shipboard task might be insuf Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 517-18 cient." (1971). A failure of a shipowner to implement adequate training and poli s a vessel unseaworthy. Bonefont v. Valdez es also , 136 F.3d 137, 1998WL 3029, *5 (5th Cir. Jan. 9, 1998) Tanksh ("A finding that . . for t . the crew was inadequate or ill trained task they were assigned represents a classic unseawort ness") i see Harrington v. Atlantic Sounding Co., Inc. --- F. Supp. 2d ----, 2013 WL 94815, *7 2013) e of and general maritime law (finding Jones Act negl unseaworthiness where oyer "provided no instruction or training to its crew as to how best to task [at hand]. ¢ If) i (E.D.N.Y., January 7, r see al so In re Compla 58 rm the t ritime] of Sea Wolf Marine Towing & Transp., Inc., 2007) (same). 2007 WL 3340931 (S.D.N.Y. Nov. 6, A shipowner will thus be liable if iled "to provide an adequate training program for the crew" and failure "proximately contributed to t Ca tI incident. Hercules ers, Inc. v. Claimant State of Fla., Dep't of Tran F.2d 1 ,,768 8, 1565-66 (11th Cir. 1985); see also Sea Wolf, 2007 WL 3340931, *2. Training and Procedures Has B. Unseaworthiness for Lack Been Established As the s found adequately implement establish, Moran fail procedures or guidel to sa perform a swing maneuver, operate capstan or handle towl s. Sea Wol (holding that a shipowner's train program r general maritime law). ilure to pr I de an adequate lity under In fact, Moran issued no policies as to luding ongoing training or r strain. for handling a line did not provi 2007 WL 3340931, *2 s crew constituted 1 line-handling whatsoever, standa s that would site training, skill and provide its crew with the knowl to Additionally, Moran a safe work environment in which to handle t forcing Young to rate in a failures proximately contributed to Young's 59 r zone. ath. se Moran also s iled to provide any written policies or y procedures regarding the swing maneuver as required under the ISM and RCP. Moran adheres to the ISM and the RCP, which respectively require "the company shou procedures, plans and instructions, including establish klists as appropriate, for key shipboard operations concerning the safety of the personnel" and "establish documented winches." use of most important "shipboard operation." to these safety subscr have any written gui r the (Tr. Trans. at 400; Exhibit 399.) capstan is a type of winch, and line-handl De cedures is arguably the (Tr. Trans. at 605.) rements, Moran did not lines, instructions or procedures whatsoever for line handling during swing maneuvers or capstan operations. (Tr. Trans. at 1398.) assessment r a swing maneuver or handling lines under pressure, or sa y procedures for Moran did not have a risk stan operations in any of its Port Advisories or safety meetings, or require its captains and crews to dedicate time during the safety meetings to discuss or ice the swing maneuver or under strain. (Id.) instructions with re tan operations for lines Additionally, Moran's OPPM contains no to line handling or the swing 60 maneuver. re is "nothing in the OPPM (Tr. Trans. at 1406 about the swing maneuver.").) Accidents involving foreseeable. capstan and 1 Moran had knowl of at least seven incidents prior to Young's death where its capstan operations. ling were loyees were inju during (Tr. Trans. at 1419-1420.) Moran also had knowledge of a 2005 accident in which a deckhand from another tugboat company, K-Sea, got in a capstan Davis Sea while handling lines. (Id.) Despite ard the tug s knowledge, and despite safety requirements, Moran did not issue any Port Advisory or change in any way its policies or procedures for how line ing tasks, includi conducted. the swing maneuver, were See Hall v. E.I. Du Pont de Nemours & Co., Supp. 353 (E.D.N.Y. 1972) 345 F. (threshold test of the applicability of reasonable care "is not of the balance of probabilities, but existence of some probability of suffi of t ent moment to action to avoid it on the part of a reasonable mind."); (Tr. Trans. at 1420-1421.) re t Young's death was thus not the navigational errors or one time posits, but a consequence of Moran's fai ligence, as Moran to ensure adequate res for handling a line under strain, which had been documented as potentially fatally dangerous. 61 In addition, se Moran had no guidel established procedures s or rding the swing maneuver, Moran failed to instruct its crew as to the importance of communicating the "all with the right rudder. to by Claimants' st" before placing load on the line (Tr. Trans. at 713; 1412.) s, is essential to As testified "positive communications" throughout the entire swing maneuver because deckhands are wor be secure be with lines under stra maneuver can proceed. 713; 715.) k to fatal hazards. Allen testifi (Tr. Trans. at 632; 643.) instead that based on his training at Moran, that he believed the "hold the load." the "all- (Tr. Trans. at 642; rwise the gear could slip out and subject crewmembers on the the line must (Tr. Trans. at 116.) s of instituting right st" from Young. 3 ars of work and stan would always He thus did not consider r before he received To the contrary, in this instance, 3 These facts also preclude Moran's contention that the "sudden emergency doctrine" was at ay and relieves Allen and Moran of liability. The "sudden emergency doctrine" applies "only to circumstances where an actor is confronted a sudden and unforeseen occurrence not of the actor's own making . . . [and] does not apply to situation[s] where [] the defendant should reasonably have anticipated and been to deal with the situation with which [he] was confronted." v. Chase, 707 F. Supp. 2d 318, 325 (E.D.N.Y. 2009) (quotations omitted) is added). Here, Allen too far left and being forced to put in rudder to correct the Tug and Barge from swinging past the intended course was of his "own rna See id. In addition, Allen should have been aware, and Moran had a duty to train its employees, that under these conditions, putting in 62 -------------~.--~.~-~- the physics and calculations comported with the descriptions from the ct witnesses establish that, of certainty, the towline pulled off t to a reasonable degree capstan as a result of Allen putting in right rudder to check the left swing before tting the" secure. 1- st" from Young and before the capstan was (Tr. Trans. at 327.) these polic Moran's ilure to institute s and safety precautions, and Allen's subsequent ilure to get the "all-fast" before turning back right, therefore directly contributed to Young's death. Moran also failed to ensure a safe location for the capstan control r, creating a "danger zone" in which Young was rced to operate. A vessel is unseaworthy if s equipment is positioned in a way that makes that equipment unsafe. v. Cnty. Of Suffolk, 2013 WL 122972, at *2 2013) 423 (citing Crumady v. (1959})i Oxl The Joa (E.D.N.Y. Jan. im Hendrik v. City of New York, Buckley sser, 9, 358 U.S. 923 F.2d 22, 25 (2d Cir. rudder before the capstan was secure could cause the line to pull off of the capstan. Allen thus should have been trained to anticipate and deal with this situation, for instance by ensuring communication with Young before he put in rudder. Moran's assertion that this was a "sudden emergency" for which Allan was unprepared only confirms that Moran's training was inadequate and establishes unseaworthiness, as Allen was unaware 0 the potential consequences of putting in right rudder before the "all-fast." See Sea Wolf, 2007 WL 3340931, *2 (holding that a 's failure to provide an e training program for its crew constituted liability under mari time law). 63 1991) when it is is considered to be unseawo ("A insufficiently or defect ly equipped."). Tug's capstan controller was located only 36 inches the capstan and positioned create a "danger zone" a location as to the cont bitt where deckhands had to work. Exhibit 384, photos 3, 6.) r, capstan and H (Tr. Trans. at 328; Trial OSHA stated that this positioning deckhand to "operate[] an electrically powe forced capstan that had no gua pulled " employee ng to prevent the nip Moran had being (Exhibit 167.) authority and control over t equipment Tug to create a safer working environment, but had not done so at the time of Young's death. (Tr. Trans. at 1412.) On r tugs, including those owned by Moran, the distance between the capstan controller and the capstan was significantly more than 36 inches, ave cre a safe at 558 61.) On up to six or seven feet away, which for deckhands to operate Tug, in contrast, the controller location Young to work in close proximity to the when tying or (Tr. Trans. stan, even ng the towline off the h-bitt, placing him dangerously near the nip point, where he was 64 imately ensnared. 4 (Tr. Trans. at 328; 336.) Moran's fai to ace its equipment appropriately thus also directly contributed to tho 's Because of Moran's deficiencies as found above, the Tug was unseaworthy and Moran is strictly liable under 1 marit law Young's death and the resulting s. II. Negligence Under the Jones Act Has Been Established i A. In § 0 e Standard r to prevail on a Jones Act claim, 46 U.S.C. 30104, a plaintiff must prove by a preponderance of evidence (1) that the was acting in the course of his employment 's employer (3) that the (2) that the defendant was 4Claimant's experts, Glenn R. Hibbard ("Hibbard") and Richard Bates ("Bates"), both testified as to the critical of having two crewmembers on deck during a swing maneuver, one to serve as a safety observer and one to work the lines. (Tr. Trans. at 655; 710.) However, because there is no evidence that industry standard red the use of two men operating during a swing maneuver this te is discounted. It is worth noting, though, that in these circumstance, the combination of the danger zone that Young was forced to operate and the lack of a second deckhand to operate the capstan controller and act as a sa observer, did proximately contribute to Young's death. With a second deckhand , Young would not have had to operate near the where the towline carne off the capstan, and the second deckhand could have communicated with Allen as soon as the line paid out, allowing Allen to stop the turn and prevent Young's death. (See Tr. Trans. at 627; 711.) 65 's negligence defendant was negligent and (4) that the caused 's injury. Scoran v. Overseas Shipholding Inc., 703 F. Supp. 2d 437, 446 (S.D.N.Y. 2010). fundamental duty under ¢ r "The emp r's Jones Act is to provide its seaman with a reasonably safe ace to work." Admiralty and Maritime Law, § 621 (5th Thomas J. Schoenbaum, .) (" Schoenbaum") . "Regarding causation, under the Jones Act, an employer is liable to its oyee if employer negligence played any part, even the injury or slightest, in produc are sought." (1957) for which damages v. Mo. Pac. R.R. CO., 352 U.S. 500, 506 See (emphasis in inal) (internal ations omitt ). The Second Circuit has adopted this relaxed burden, often referred to as "featherwe Williams v. Long Island " standard. R.R., 196 F.3d 402 (2d Cir. 1999); Inc., proof v. Seabulk Int'l, 456 F. Supp. 2d 387, 390 (D. Conn. 2006) r causation when asserting igence under Act is relaxed, sometimes termed 'fe Transp.r Inc. v. (af rming that a "if [its] neg1i inging about de, Jones rweight.'"); CSV 131 S. Ct. 2630, 2644 fendant ("the standard of (2011) or contribut to an injury played a part-no matter how small-in injury.") B. Moran was both Direct the Jones Act (quotations omitted). and Vicarious 66 Negligent The facts demonstrate that Moran was at fault under the Jones Act's" herweight" st of any safety tra both for its I ng, guide 1 sence s in licies or p connection with line-handling and cariously for the re ing negligence of its employees. Moran's inadequate t only cont ning and safety p to the unseaworth res not ss of the Tug its crew, See but also constituted negligence under the Jones Act. Harrington v. Atlantic Sounding Co., Inc., (E.D.N.Y. January 7, 2013) 2013 WL 94815, at *7 (finding Jones Act negligence where employer "provided no instruction or training to its crew as to how best to perform the [marit ] task [at hand] . . "); see also In re Complaint of Sea Wolf Marine Towing & Transp., Inc., 2007 WL 3340931 (S.D.N.Y. Nov. directly negligent for its or tra Ha 2013 WL 94815, at *7 Moran was directly re to sa A maritime employer is ilure to "provi ng to its crew as to how to best task [at hand]." gui 6, 2007). instruction r the [marit v. Atlantic Sounding Co., Inc., (E.D.N.Y. Jan. 7, 2013). ible for but il lines, policies, procedures, or ongoi ly handle lines under pressure, 67 As found above, to provide training as to how including conducting a ately handling a swing maneuver and Section I; B. Moran's omissions in this rega with industry standa to its employees. were inconsistent (See Tr. Trans. at 632; 713 11 fast" before coming r s and guidelines sand olute necessity of rece and ensuring sa stan controller, despite tug operator rece be the swing maneuver).) cation of the ear safety concerns, or an "all-fast" from introducing the r with handling lines under st the ty training, Additionally, Moran did not modify the t See supra and violated the company's duty of care Hibbard establishing Ii tan. re khand r, despite dangers associated n. Moran's negligence iling to ensure a safe work environment or provide adequate training of its employees on these matters, as established, directly contr d to Young's death. See supra Section I; B.; see also Schoenbaum ("The employer's fundamental duty under the Jones Act de its seaman with a rea is to y safe place to work.") . Moran is also vicariously Ii Ie for the negligent acts of its oyee, Allen. In a "Jones Act context employer may vicariously liable for its 68 . an loyee's negligence rior so long as under the doctrine of respondeat s negligence occurred in the course of employment U at Beech v. Hercules Drill accident. 566, 571 (5th Cir. 2012) (internal ); see also 632 (7 Al Cir.2005) . were acting in t to time of Co., LLC, 691 F.3d ation marks and v. Ispat tations and, Inc., 413 F.3d 628, re is no dis that both Young and course of their employment and in order r the interests Moran at t time of the swing maneuver. Allen both swung too far right, rudder re receiving and calcu "all-fast U from Young. ions comported with the descr witnesses establish that, to a reasonable the towl pulled off in right rudder to check fast" from Young and ens Trans. at in the rap 7.) ght The physics from the of certainty, tan as a result of Allen putting Ie swing be ing the" that the capstan was secure. Allen's combined errors thus pulling off of 1 (Tr. rectly resulted towline; the capture of Young in tal crushing of Young as the the capstan; and the subsequent towline pull introduced off with great 69 Because these errors were the result of Allen's own negligence, as well as the inadequate training provided by Moran, Moran is liable r the Jones Act both directly poli inadequate training and unsa es, and its cariously for Allen's resulting negligence. III. Limitation of Liability Has Not Been Established A. Applicable Standard Limitation of liability is available only if a shipowner establishes that the t causing the loss occurred without the owner's privity or knowledge. "The 46 U.S.C. § 30505(b). ermination of whether a shipowner may limit li involves a two-st anal is: (1) a dete lity [] nation of what acts of negligence or unseaworthiness caused the casualty and (2) whether the shipowner had knowledge or privity of these acts." Schoenbaum, § l5-6i see In re Complaint 119, 126-27 (2d Cir. 2009). Messina, 574 F.3d To sustain its burden, Moran "must show how the loss occurred, together with its lack of privity to or knowledge of the asse cause. If loss occurred, a defendant must exhaust all cannot show how the poss and show that as to each it was without the requisite knowledge." Terracciano v. McAlin 70 Canst. CO., ilit s, ivity or 485 F.2d 304, 307-08 (2d Cir. 1973). Further, Moran need not have had actual knowledge of the unseaworthiness or negligence; it is sufficient that Moran "should have known" of the breach. Sulphur Queen, 460 F.2d 89, 101 (2d Cir. 1972) See In re Marine Indeed, "The question with regard to corporate owners is not what the corporation's officers and managers actually knew, but what they objectively ought to have known." Transp. Co., 797 F.2d 206, 211 Complaint of Patton-Tully (5th Cir. 1986) (emphasis in original) . "The recent judicial trend has been to expand the scope of activities that fall within the privity of the owner, including imputing to corporations knowledge or privity of lower-level employees." Matter of Oil Spill by Amoco Cadiz Off the Coast of France on March 16, 1978, 954 F.2d 1279, 1303 (7th Cir. 1992) Inc., (citations omitted); In re SkipperLinder Indus., 2002 WL 32348827 (W.O. Wis. Jan 31, 2002) Oil Spill by the Amoco Cadiz, 1992)) (quoting In re 954 F.2d 1279, 1303 (7th Cir. (the "recent trend has been to enlarge the scope of activities within the 'privity or knowledge' of the shipowner, including . . requiring shipowners to exercise an 'ever increasing degree of supervision and inspection'".). If an injury occurs as a result of a shipowner's failure to use "due 71 and proper care to provide a competent crew," that negligence is necessa 127. ivity." Messina, ly "within the owner's Similarly, "the failure of a ship's rna ligence in selecting, training, or supe 574 F.3d at r to exercise sing crew members whose [acts or omissions] contribute to an accident is proper ground to deny limitation of liability." Potomac Transp., Inc. , Inc., v. Ogden Ma 909 F.2d 42, 46 (2d Cir. 1990). B. Moran has not Met its Burden of Proving Limitation of Liability Moran has not met its burden of proving that limitation of liability is appropriate in this action. contrary, Claimant has s To the ficiently established Moran's privity or knowledge. Petitioner has alleged that "Moran had no notice of any condit , defect or prior accident that placed them on notice that the capstan arrangement or the swing maneuver procedure was inadequate." (Pet. Mem. of Law at 20.) To the contrary, Moran was aware of at least seven accidents involving a capstan, and a 2005 deckhand death on tug Davis Sea while handling lines. (Tr. Trans. at 1419-1420.) Additionally, Moran's Vice President, Keyes, testified that several times 72 Moran employees were i while working near the capstan, that "it can be dangerous to work around the capstan," and that the company was aware of importance of disseminating sa y procedures and guidelines through its OPPM and ongoing safety meetings to ensure sa ty. (Tr. Trans. at 1414-15.) Moran adheres to the ISM and the RCP, which respectively require that "the company should establish instructions, including s, plans and klists as appropriate, for key shipboard operations conce safety of the personnel" and "establish documented procedures t use of . . winches." (Tr. Trans. at 400; Exhibit 399.) tan is a type of winch, and line-handling is a "key operation." (Tr. Trans. at 605.) Despite this knowledge of past acci nts and despite ear awareness of the safety requirements sed by the ISM RCP,5 Moran failed to issue any written gui trainings, or instructions whatsoever for line kind. (Tr. Trans. at 1398.) lines, ndling of any Further, Moran knew or should have known from its experience as an operator of tug s t ef OSHA also issued Moran a formal citation as to the location of the controller. The citation stated that "[i]ssuance of this citation does not constitute a that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act, or if contest unless this Citation is affirmed by the Review Comr.lission or Court. (Exhibit 67.) U 73 of swinging the Tug to the right before the "all fast" signal and the capstan was secure, and the safety had been g concerns ass close to t procedures, ted with placing the capstan controller too capstan. Moran could have implemented such (Tr. Trans. at 1409-10), but inst uted no job hazard analyses, risk assessments, or capstan training until after Young's death. (Tr. Trans. at 1403-04.) communicate to its crew the importance Moran d not receiving the "all fast" before a tug was swung back right or a I was subjected to pressure, or attempt to move the location of the capstan control r to ensure a safer work environment until after Young's death. See Dover Barge Co. v. Tug Crow, 266, 275 (S.D.N.Y. 2009) liabil 642 F. Supp. 2d (an employer "may not limit his y under the Act if the ship is unseaworthy due to the equipment which was defective or unsa at the start of the voyage."); see also Marcus v. Energy Trans. Corp., 1992 WL 196784, at *2 (S.D.N.Y. July 31, 1992) ("A violation of sa y regulations render the ship unseaworthy and if such unseaworthiness was the proximate cause of the Plaintiff's injuries it would also render the De (internal cations omitted) . 74 ndant shipowner liable") to adequately "train[] or Moran thus fail rvis[e]U its crew or create a safe environment with respect to line handling and v. Ogden Ma swing maneuver. Potomac Transp., Inc. , Inc., 909 F.2d 42, 46 (2d Cir. 1990) failure of a ship's master to exercise dili training, or supervis in selecting, crew members whose [acts or omissions] contribute to an accident is proper ground to deny 1 lity.U). li This lure, which was a pr , renders 1 Young's ional respons 1 tation e cause of tation of liability inappropriate. See id; see also Hercules Ca that ("the ers, 768 F.2d at 1576-77 (finding igence of t crew "became the of the owner when it iled to train its crew U); Complaint of Cameron Boat Rentals, Inc., 683 F. Supp. 577, 585 (W.O. La. 1988) (fi ng operational errors "are imputab the owner where they are to natural consequence of the owner's unwritten policies. U). As found above, the facts as established by the record also refute Moran's contention that Young's death re his negligence in pressing the wrong button on controller causing it to IV. rate in reverse. Damages Have Been Established 75 capstan from estate representative, is entitled Avril Young, as to recover on behalf of all bene aries for t of her husband under the Jones Act and wrongful de ral marit law, both for the losses suffered as a result of his death as well as his su r claims. Jones Act, chi other dependent relat dea refe 498 U.S. at 26, ficiaries include the su ; general rna Act"), See Miles, 30. Under the ving spouse time law extends this class to incl See 46 U.S.C. App. § 688 s. to FELA, ("Jones 45 U.S.C. App. § 51 (FELA wrongful beneficiaries are "the surviving widow or husband and children of such emplo If); Schoenbaum, § 8-3 an action for wrongful death under the inc ficiaries of ral maritime law the surviving spouse, children, parents and dependent relatives). In this case, then, the ciaries are Young's widow Avril Young, his minor son Nicholas Young, his adu daughter Sheila Young, and Young's granddaughter, Kaitlyn Young, who were all financially dependent on Young at the t death. A. The icable Standard 76 of his mar Under the Jones Act as well as gene Avril Young can recover for all cunia ime law, losses, which include loss of support from past and future earnings, the loss of Young's household services, Nicholas's loss of parental care and guidance, and dama s for Young's conscious pain and suf 798 F.2d 138, 141 (5th See De Centeno v. Gulf Fleet Crews, Inc., Cir. 1986) ring. ("Recoverable items include loss of support from [decedent's] past and future earnings; loss of [decedent's] household services; loss of rental nurture and guidance of his minor children until the age of majority; and recovery for [decedent's] predeath pain and suf the Southern Courts looked to state law maritime cases. r gu ring U ). strict of New York have nce on damages dete See Bachir v. Transoceanic Cable Sh WL 413918 (S.D.N.Y. Mar. 15, 2002) Co., 2002 (where the court examines numerous New York state cases in determini also Scala v. Moore McCormack Lines, Inc., Cir. 1993) nation in dama s award); see 985 F.2d 680, 684 (2d (a longshoreman case cited by Bachir, where Court of Appeals stated that, in assessing a damages award, "courts have reviewed awards in other cases involving similar injur and cited New York State case law). 77 sU In assessing damages, t past and fact-finder should ascertain re impact of the injury by examining (1) the nature, extent, and duration of the injury; (2) the pI pain, discomfort, suf ring, and anxiety; and (3) any lost earnings. 2 M. Norris, The Law of Seamen iff's ("Norris"). in the 697 (3d Damages must be supported by the .1970) cts est and cannot be speculative. See Sa Tankers, Inc., 531 F. Supp. 879, 888 B. § Pecuniary Loss Has Been Es As found above, pecunia 1. Pre A mar ished v. Kingsway (D.C.N.Y. 1981); ished loss has establi Pain and Suffering ime wrongful death claimant is entitled to recover for the conscious pain and suffer experienced prior to a decedent th so long as there is some evidence the decedent had, at some level, an awareness of what he was going through. particular 5.5. Paros, for suf s category of damages, no To recover riod of consciousness is necessary. 461 F. Supp. 219 (S.D. Tx. 1978) ring for See Hinson v. (allowing recovery y the "fleetest seconds."); see also 78 McDougald v. Garber, 73 N.Y.2d 246, 255 (1989) (a fact finder cannot be required to "sort out varying degrees of cognition and determine at what level a particular deprivation can be fully appreciated."). Instead, a claim for conscious pa and suffering requires a claimant to present only proof that the jured party "experienced some level of cognit llowing the injury." Sanchez v. awareness 97 A.D.3d New York, ty 501, 506 (1st Dep't 2012); see also McDougald, 73 N.Y.2d at 255 (fact finder should only have to consider whether a person had "some level awareness in order for plaintiff to cover") (internal quotations omitted). Evidence of conscious pain and suffering may substantiated by medical records, even medical testimony to support the claim. A.D.2d 345, 345 (2d Dep't 1988). presumed in cert the absence of expert Dowling v. Dowling, Consciousness may also be n factual circumstances. Sand and Gravel Co., 626 F.2d 746 (9th Cook v. Ross Island r. 1980). Once evidence of pre death conscious pain and suffering has been admitt ,"the degree of pain" becomes "only a factor to be considered in determining the amount of damages, not whether damages should be awarded at all." York, Williams v. 71 A.D.3d 1135, 1137-38 (2d Dep't 2010). 79 138 ty New Claimant has sufficiently establi and suffering in this case. Young conscious in All three physicians agreed that rienced some period of conscious pain suf ing; the discrepancy was only as to how long that pain occurred. Though Dr. Thanning testif coma caused by the pa of consciousness that Young went into a neurogenic from his crushing injuries, causing loss thin ten seconds, physical support for this theory. re is no medical or (Tr. Trans. at 1539 52.) the contrary, Dr. Zhang and Dr. Bollinger cred To le testimony as found above both relied on concrete physical evidence and medical journals in concluding that, based on hemorrha petechial s, the location of the traumatic injuries and absence of blood below the torso, Young was conscious for more than two minutes. 26; 829.) (Zhang Dep. Tr. at 56-59; Tr. Trans. at 825 It is further "clearly in rable that [Young], caught by the winch which was grinding him to pain whi also confronting th, suffered intense certainty of death." St le v. United States, 860 F. Supp. 136 (S.D.N.Y. 1994). Claimant has urged that an award of $2 period of time that Young was consciously suf consistent with jury verdicts in s 80 lar cases. llion for the ring is See, e.g., McIntyre v. Uni 2006) States, 447 F. Supp. 2d 54, 118-19 (D. Mass. (awarding $3,000,000 for three minutes of conscious pain and suffering from gunshot wound); Hackert v. rst Alert, 2006 WL 23352330 (N.D.N.Y. Aug. 11, 2006), aff'd 271 Fed. Appx. 31 (2d Cir. 2008) ("considering the 35% comparative negligence location," an appropriate judgment would be "$650,000 for the conscious pain and suf for the conscious of whom suf ring [defendant one] and $1.3 million in and suf ring of [defendant two]," both red for short periods). Moran, to the contrary, posits that analogous precedent shows that an award of between $35,000 to $100,000 is appropriate. See, e.g., St United States, 860 F. Supp. 136 (S.D.N.Y. 1994) awarded $50,000 for conscious pa and suffe period of intense pain could not have last le v. (decedent was ng noting that the long); Zilko v. Golden Alaska Seafoods, Inc., 2004 Wash. App. LEXIS 2205 (Ct. App. Wa. 2005) ($200,000 awarded for conscious suffering in drowning death where period of consciousness was limited); Cook v. Ross and Sand & Gravel, (award for two and a half 626 F.2d 746 (9th Cir. 1980) nutes conscious suffering in a drowning death reduced from $100,000 to $35,000). New York courts, in turn, have awarded a range of damages for conscious pain and suffering of short durations 81 similar to that of Young's. See Givens v. Rochester City Sch. Dist., 294 A.D.2d 898, 899 (N.Y. App. Div. 4th Dep't 2002) ($1 million verdict reduced to $300,000 where decedent suffered less than one hour after sustaining a stab wound); Rodd v. Luxfer USA Ltd., 272 A.D.2d 535, 536 (N.Y.App. Div.2d Dep't 2000) ($1 million verdict reduced to $300,000 where decedent suffered no more than 30 minutes after sustaining a chest wound due to an explosion); Glassman v. City of New York, 225 A.D.2d 658, (N.Y. App. Div. 2d Dep't 1996) 658 ($1.4 million award reduced to $500,000 where decedent suffered massive injuries but was only minimally conscious before death after being struck by a car); Torelli v. City of New York, 176 A.D.2d 119, 124 1st Dep't 1991) (N.Y.App. Div. (court awarded $250,000 where decedent suffered between fifteen minutes and one hour from horrendous injuries after car collision); Walker v. New York City Transit Authority, 130 A .D.2d 442, 443 (N.Y.App. Div. 1st Dep't 1987) ($1 million award reduction to $600,000 affirmed where decedent suffered very briefly and his level of consciousness was unknown after he was struck by a train) . Conscious pain and suffering are by definition subjective to the sufferor and result from the totality of the circumstances, the duration of the experience, the injuries and 82 their effect, the inevitability of the outcome, the shock of t event and the values of the society and of the sufferer. Courts in evaluating these awards must guard against excessive awards based on sympathy and emotion on the one hand and a mechanical mathematical approach on the other. Each injury, each circumstance, is unique as is each individual. To strike a balance that society will deem appropriate and do justice to the Decedent's final agonies is a daunting, almost impossible task. See, e.g., 1994) (~The Strehle v. U.S., 860 F. Supp. 136, 140 (S.D.N.Y. problem of fixing a monetary award is exacerbated by the fact that pa and suffering can not rationally be given a dollar value. Would any of us willingly endure the pain and suffering experienced by the decedent in return for a substantial monetary payment?"); Gibbs v. United States, 599 F.2d 36, 39 (2d Cir.1979) ( "measuring pain and suffering in dollars is inescapably subjective"); Consorti v. Armstrong World Industries, Inc.; 64 F.3d 781, 788 other grounds, (2d Cir. 1995), rev'd on ("While the law seeks by reasonable compensation to make a plaintiff whole, we must recognize that compensation for suffering can be accomplished only in a symbolic and arbitrary fashion. There are at least two serious shortcomings to the endeavor. First, money awards do not make one whole; they do not alleviate pain. Second, there is no rational scale that 83 justifies very dif award of any particular amount, as opposed to some rent amount, of pain."). compensation a particular quantum With the relevant precedents, facts and considerations in mind, an award of $750,000 and sufferi se r Young's while being crushed to death is appropriate. 2. __________________________________~__________~ Avril Young may recover on behalf of all estate beneficia s a result of t the financial harm that they wrongful death of Young. assified as "lost future support." n.4 (explaining contributions dependents had suffered as That loss is See Cook, 626 F.2d at 784 lost support "includes all t financial the decedent would have made to his lived."). actions under both t v. Sea Drilling Lost Jones Act ure support general marit ., 523 F.2d 793, 794 n.3 (5th ies in law. r. 1975) Law i McCrann v. United States Lines, Inc., 803 F.2d 771, 773 (2d Cir. 1986) (basic concept Ived in calculating damage awards for lost wages of Jones Act claimant is to require tort "put occupi s victim in t same economic position that had he not been injured"); Sal Inc., 531 F.Supp. 879, 888 (S.D.N.Y.1981) 84 asor to would have v. Kingsway Tankers, (Jones Act claimant who is successful in establish future earnings) (citing Calca Ii lity is entitled to 1 i v. Hudson Waterways Corp., 603 F.2d 1049 (2d Cir.1979)}. Petitioner applicability of loss of s t Claimant has failed to support damages, but adequately establish nonv. McDonnell Douglas 1983). See Shu Tao .,574 F. Supp. 1407, 1414 To the contra ,CIa s p expert Dr. Moore, culative damages. (S.D.N.Y. , as established s ded sufficient concrete to establish loss of support damages in this case. Lost future support is typically calculat gross future ea (including benefits) with a deduction for personal consumpt and then reduced to present value. tal Cruises, Inc., e.g., Howard v. Cir. 1994) r culating the total amount of damages to be llant for her loss of [ services, strict court reduced those figures Dep't (calculat his predi See, 41 F.3d 527, 530 (9th awarded reflect based on 's] support and personal consumption."); Kni Navy, 802 F. Supp. 965, 977 . to v. U.S. Gov't (S.D. Ind. 2011) "value of future support" as decedent's income over Ii expectancy less his 85 rsonal consumption); Shu Lin v. McDonnell Douglas Corp., 574 F. Supp. 1407, 1415 0 (S.D.N.Y. 1983) a Cir. 1984) 'd part, rev'd in part, 742 F.2d 45 (2d (loss of support measured as future income reduced by personal consumption) (reversed on other grounds). earnings in New York are not reduced by taxes. Unit States, 74 F. Supp. 2d 305, 307 Lost future See Estevez v. (S.D.N.Y. 1999) (where New York State damages law was applied to action brought under federal statute, and court held New York state law requires that lost future earnings not be reduced by taxes for any defendant) . The amount of personal consumption is based on an expert's opinion and the use of statistical studies taking into account certain and t ors such as household size, household income age of minor dependents, as most households do not keep actual records of what portions of their incomes are spent on of expenses. what t Moran's expert, Dr. his methodology, showed no mathematical calculations, expl and igno significant rsonal details in compiling his report, including Young's work history. 50.) zgerald, did not Dr. (Tr. Trans. at 1649 zgerald also made incorrect factual assumptions in his calculations, including (1) assuming that Young rna two households; child; (3) ained (2) ignoring Young's sole custody of his minor iling to account for care of Young's daughter 86 ila; (4) not calculat fits; li the loss of Moran's alth care (5) incorrectly reducing the economic loss of tax lity and (6) employing a non-existent when reducing the economic s bond rate s to present value. (Tr. Trans. at 1625; 1636-38; 1665-66.) In contrast, Dr. Moore's testimony, qualifications and methodol ogy 6 were highly cred Exhibit 251, at 6.) leo (Tr. Trans. at 1442-45; Dr. Moore's final calculation in November of 2011 totals $692,235 for lost support, assuming t worked to .) age of seventy. Young Dr. Moore explains that st pension income t his f does not include any Young would received from retirement through his life expectancy, or any lost compensation for lost household services, benefits or earnings. (Id. ) For househo a Dr. Moore's account for chil ces, Dr. Moore .) at $80,280. calculated se therefore asserts that the total included in rt for lost support should re services, cooking, hous supplemented to ld work, the Dr. Moore's report was based on reviewing factors, including Young's (1) tax returns; (2) credit card statements; (3) checking account of his wife; (4) earning statements from Moran; (5) personal personnel fi from Moran; and (6) employee benefits at Moran; as well as the deposition of Keyes. (Exhibit 251.) 87 dependency of Young's adult daughter S job promotion, and ila, the poss ilityof lost value of flexible spending amounts, Tr . totaling in an award of $900,000 for economic loss. . at 1442; 1485; 1456; 1486; 1439.) However, Claimant does not establish a methodology for calculating the dependency of Young's daughter S se ces. Further, Young's potential job promotion is speculative. Damages are thus awarded instead based on Dr. Moore's documented hou or Young's additional household culations, totaling $80,280 for lost d services (see 251, at 6) and $692,235 for lost future support. 3. Loss of Pa Guidance, Nature and Nurture Damages for the loss of nurture are intended to compensate a child for deprivation of parental guidance, support and training; these damages are avai Jones Act and general marit law. under both the In Matter of American River Transp. Co., 1997 WL 382055, at *1 (E.D. La. July 8, 1997); see also Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583, i ed, 3 6 8 U. S. 9 8 9 ( 1 962) . 593 n. 9a (2d Cir. 1961), cert. "An award for loss of nurture for grief re s not extend to compensation ting from the loss of the warm and 88 ng rental relationship. awa It is a more limited more measurable for loss of valuable services in the nature of truction, training and guidance." Red Star Towing & Transp . . v. The "Ming Giant", 552 F. Supp. 367,377 The facts with respect to Young and his son having been found (S.D.N.Y. 1982). relationship between set forth above, Nicholas lived with his father from 2007 until Young's death in 2009, and provided daily contact, efforts, and academic support. (Tr. Trans. at 918; 1000 1011.) Nicholas, who has since s father's death has affe his first fight at school, stopped playing on his baseball team, academic difficulty. rienced significant (Tr. Trans. at 920; 1011-1012.) Claimant has urged $2,000,000 for loss of parental care and guidance. See, e.g., Campbell v. ielmo, 148 F. Supp. 2d 269 (S.D.N.Y. 2001) that an award of $1,500,000 for (court loss of parental care from what would guidance did not deviate mater reasonable compensation); Paccione v. Greenberg, 682 N.Y.S.2d 442, 443-44 (reducing an awa (N.Y. App. 1998) for loss of parental guidance of $2,500,000 per child to $1,500,000 per child); Garcia v. New Health and lly tals, 230 A.D.2d 766 (2d Dep't 1996) 89 ty (reducing judgment r loss of 1 guidance from $1,000,000 to $750,000) . Moran has asserted that Nicholas's damages for nurture and guidance must be limited to reflect not live with s father , that N las did most of his childhood, and that loss should be limit to six the See Zilka v. Golden Alaska Seafoods, of eighteen). rs (i.e. until Nicholas reaches Inc., 2004 Wash. App. LEXIS 2205 (Ct. App. Wa. 2005) (court ar where evidence was presented as to the awarded $15,000 per cost of social workers and teachers providing equ lent services as to the character, time and devotion of the decedent to this children). According to Moran, an award of $5,000 to $20,000 per year is more appropriate. , 835 F. Supp. 274 Boykin D.Y. AIS v. tween See, e.g., (E.D. Va. 1993) ($12,000 per year where father was "exemplary" and "exceptionally "); Zilko, 2004 Wash. App. LEXIS 2205 per year); Brown v. United States, Mass. 1985) ($5,000 per year Towing & Transp. Co., 615 F. Supp. 391, 400 (D. death of fi 552 F. Supp. at 378 per year) . 90 ($15,000 rman); Star (approximately $14,000 Based on analogous precedent and on the extent of Young's relationship with his son, damages of $15,000 per year, r the remaining six years of Nicholas's adolescence, are appropriate. 4. Loss of Societ The part appropr s differ as to whether loss of society is neral marit te under law and in Jones Act cases. However, the Supreme Court stated U.S. limit 19, 30 (1990) Miles v. Marine, 498 Congress's statutory 1 in DOSHA, "recoverable damages in wrongful death suits to 'pecuniary loss sustained by the suit is brought,'" osed recove sons for whose benefit the for non-pecuniary loss, such as loss of society, in a general maritime action for wrong Id. at 31 (quoting 46 U. S. C. App. death. The Supreme Court further held that loss of society in a Jones Act wrong regardless of whether t unseaworthiness. 7 § is "no 762). for death action," action is a result of negli or As such, no damages for loss of society will that the Jones Act allows Claimant' cited precedent establishes causes of action for negligence; not that loss 0 is an e remedy for these actions. (Claimant Memorandum of Law, "Mem. of Law"; at 42 44.) Even a liberal reading of the Jones Act does not as urged by the Claimant overcome the Supreme Court's ruling on this issue. 91 Seer e.g., Senator Linie Gmbh & Co. Kg v. Sunway be awa Liner Inc., 921 F.3d 145, 169 (2d Cir. 2002) (recognizing that loss of society damages are not appl wrongful death causes of action under the general mar Act); S law or the Jones ki v. M!V NORASIA ALYA, 2010 WL 6501649, at *10 (S.D.N.Y. Jan. 14, 2010) (Granting summary judgment on issue of ss of society damages where collision at issue took place outsi the territorial waters of rned by the general marit state of New York and was law and therefore, pursuant to Miles, the general maritime law does not provide [defendant] damages for loss of s 5. y) . --------------~-- Punitive damages may only be awarded where a defendant's conduct is intentional, wanton and reckless, or constitutes gross Silivanch v. Celebrity Cruises, Inc., 171 F. Supp. 2d 241 (S.D.N.Y. 2001). Claimant asserts t that the accident was caused by the premature final turn of the and from the unsa maneuver before the" 1- tion of the til was given acement of the equipment on the Tug. Claimant does not contend and the facts do not establish that the maneuver was per rmed with gross negli 92 or willful misconduct, or that the placement of the equipment by Moran involved such intentional or wanton conduct. Given the lack of dence or argument by Claimant that would provide a legal sufficient basis for such an award, Claimant's punitive damage claim is dismissed. 6. Prejudgment Interest Although t allowance of judgment interest in admiralty is said to be a matter committed to the trial court's discretion, see United States Willow Furniture Co. v. La Compagnie Generale Transatlantique, 271 F. 184, 186 87 (2 Cir. 1921); Q'Donn 1 Transportation Co. v. ty of New York, 215 F.2d 92, 94-95 (2d Cir. 1954), it should be granted in the absence of exceptional circumstances. See, e.g., Federal Ins. Co. v. Sabine Towing & Transp. Co., 783 F.2d 347, 352 n.4 s Circuit, prejudgment ("In rest will be denied in admiralty cases only under extraordinary rcumstancesn)i The Wright, 109 F.2d 699, 702 (2d Cir. 1940); Moore-McCormack Lines, Inc. v. chardson, 295 F.2d 583, 592-93 368 U.S. 989 (1962). (2 r. 1961), cert. den Moran has not established any special circumstance why prejudgment interest should not 93 applied. is case is calculated uSlng Prejudgment interest in New York state law. Scheepvaart Maats Chris 1988) Dammers & Vanderheide & Complaint na B.V., 836 F.2d 750, 755 (2d Cir. ("when a lone claimant brings an action seeking an amount in excess of the limitation fund, the district court must lift the stay against other [state court] proceedings if that claimant concedes the admiralty court's exclusive jurisdiction to determine all issues re ing to limitation of liability.") . Avril Young as the single c imant could have proceeded in New York state court, where she would have been awarded the state statutory prejudgment interest rate on any damages award. It is thus reasonable to employ the same rate to the damages for which prejudgment interest are available as she would have received had she dissolved the stay on se proceedings and pursued her action in state court. Here, prejudgment interest is appropriate as to all claims, whether under the Jones Act or general marit law. See Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir. 1985) ("We hold, therefore, that when a Jones Act claim is brought under the court's admiralty jurisdiction, and hence the case is tried to the court and not jury, the allowance of 94 udgment interest is within the trial court scretion of even if there is not a finding of unseaworthiness"); Webb v. TEeo Line, Inc., 2012 WL 7800851, at *33 (S.D. Ill. 2012) Ba (same); Benson v. Diamond Offshore Drilling, Inc., 3794908, at *9 (M.D. La. Aug. 26, 2011) 2011 WL (same). Under New York law, the rate of prejudgment interest is set at nine percent per annum. N.Y. C.P.L.R. Claimant is therefore entitled to judgment § 5004. rest at an annual rate of 9% measured from the date of Young's death, December 27, 2009. multiplyi The dollar amount is cal ated by the total amount of past damages by n then dividing period by 365 (representing the year) and multiplyi percent, of a that figure by the number of days between December 27, 2009 and the e of judgment. See Webb, 2012 WL 780851, at *34 n.13. CONCLUSION Based upon all the prior proce conclusions of law set forth above, Young. Settle judgment on notice. 95 ngs and the facts and judgment is awarded to Avril It is so ordered. New York, NY November il , 2013 ROBERT W. SWEET U.S.D.J. 96

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