Moran Towing Corporation, No. 1:2010cv04844 - Document 115 (S.D.N.Y. 2013)

Court Description: AMENDED 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 11/15/2013) (lmb)

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UNITED STATES DISTRICT COURT SOUTHERN DIST CT OF NEW YORK -------------------------------- --x In the Matter of Complaint of MORAN TOWING CORPORATION, as Owner and Operator of the TUG TURECAMO GIRLS, for Exoneration from or Limitation of Li ility, 10 Civ. 4844 AMENDED OPINION Petitioner. ------ ------X A P PEA RAN C E S: Attorne Petitioner CLARK ATCHESON & REISERT 7800 r Road North Bergen, New Jersey 0.7047 Ri rd Joseph Reisert, Esq. Frank A. Atcheson, Esq. Stephen K. Carr, Esq., Counsel Attorne for Claimant KREINDLER & KREINDLER 100 Park Avenue New York, NY 10017 By: Daniel O. Rose, Megan Wol Benett, Esq. Sweet, D.J. Two actions were tried to the court from May 20, 2013 through June 4, 2013, the ition r exoneration filed by the itioner Moran Towing Corporation ("Moran" or the "Petitioner") and a Jones Act and general maritime law action for igence filed by claimant Avril Young ("Avril Young" or the "Claimant"). These actions arise out of crushing to death on December 27, 2011 of Ricardo Young ("Young" or the "Decedent") a deckhand who was entrapped in the capstan of the Turecamo rls, a Moran tug ( "Tug"), by a towline under great pressure during an improperly conducted swing maneuver. The horror of this incident has raised difficult issues which were advocates. sented with s Upon all the prior proce 11 by very competent ngs and the sand conclusions of law set forth below, judgment will be entered on behalf of Avril Young. Prior Proceedings On June 22, 2010, the Petitioner filed a Petition Exoneration from or Limitation of Liability in this district, pursuant to 46 U.S.C. §§ 30501 et s 1 ., and the va ous statutes supplemental thereto and amendatory t Supplemental Rules Rules") a reof, and Rule F of the r Admiralty and Maritime Claims ("Admiralty sing out of the events surrounding Young's death. On September 8, 2010, the aimant, as administrator of the Estate of Young, filed an Answer admitting that the case is within this court's admiralty and maritime jurisdiction pursuant to 28 U.S.C. § 1333(1), Rule 9(h) of the Federal Rules of Civil Procedure and Rule F of the Admiralty Rules, and demanded a trial by jury. a claim on behalf of t On that same date, the Claimant fi Estate and on behalf of the decedent's minor son, Nicholas Young ("Nicholas"), but at that time the Claimant had not yet been appointed as the legal guardian of Nicholas or the administrator of the Estate. On July 11, 2011, the Claimant, on behalf of herself, individually and as the administrator and personal representative of the Estate of Young and all other wrongful death beneficiaries and heirs, fil a rst Amended Claim under the 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 jury trial on any issues 2 pertaining to exoneration or limitation of liability. Claimant then cross-moved pursuant to Rules 38 and 39 of the ral es of Civil Procedure to empanel a jury to hear and render a ve ct as to her aims under the Jones Act and general maritime law. By opinion of April II, 2013 (the "April 11 Opinion"), it was that there is no ri to a jury trial on issues pertaining to exoneration or limitation of liabili ,but that there is a right to a jury determination in a Jones Act action. On April 16, 2013, Moran filed a motion for partial summa judgment. On May 20, 2013, a r jury demand, a bench t r the aimant waived al was commenced on exoneration and the Jones Act and ral rna time petition for action. Both actions were tried to the court from May 20, 2013 through were complet June 4, 2013, post-trial submiss on August 9, 2013 and the parties presented final arguments on October I, 2013 at which t the actions were considered fully SUbmitted. 3 The Facts In early morning hours of December 27, 2009, Young, a deckhand, was Tug. nt Pretrial Facts U; at '1.) to death in the capstan of the r, Stipulated Facts, "Stipulated of the fatal incident, the Tug was At t pushing the barge Lisa U) on a "sludge run" down the "Ba Hackensack River from a waste disposal site in Little Ferry, Kew Jersey to Wilson Avenue in Newark, New Jersey. Facts at , 5.) The Tug and Ba ed after midnight and were about an Young's death occurred. ttle Ferry just into its voyage when Facts at '8.) (Stipu board the Tug at the time of the i len ("AllenU), engineer Thomas Best ("Best"), Young (Stipulated Facts at , The crew on consisted of Captain Michael Staszko ("Staszko U), mate ("Taibi U). (Stipulated 7.) At t death, Allen was in the upper wheelhouse khand Charles Taibi t of Young's rating t Tug; Young was at the rear ("aft") deck and Best was in his cabin doing paperwork. Staszko and Taibi were off-duty asle (Stipulated Facts at , 12.) Staszko has been employed by Moran in various ities since 1978, starting as deckhand and elevated to 4 a (or Master) In 1990 or 1991. (Trial Trans."; at 1055-1058.) He has been se ng as captain of the since 1999 (Tr. Trans. at 1055; Trial 339), and was familiar with the Litt the Tug had been performing four times every two weeks for years. script, "Tr. ibit, "Exhibit"; Ferry to Newark run service about three to last twe to thirteen (Tr. Trans. at 143; 174; 1033 1034; 1071-1072.) He was qualified to serve as the Tug's master. Allen was duly licens as a Master of any towing vessel of not more than 1600 tons, of the Tug since 2007. and had been serving as mate (Tr. Trans. at 66.) He was fully familiar with the Little Ferry to Newark run, given the frequency of the Tug's loyment in that service. (Tr. Trans. at 143.) He was qualifi to serve as the Tug's mate. (Tr. Trans. at 130-132; 1063-1066.) Best was a Coast Guard licensed marine engineer who had been the 338.) Best was ef r of the Tug since 1998. lified to serve as the Tug's (Tr. Trans. at 192 196; 1067-1068). 5 t f r. Taibi had been employed as a deckhand by Moran since 2001 and had been a deckhand aboard Trans. at 1023-1024; Exhibit 340.) as a ckhand on the Tug. Tug for six years. Taibi was quali (Tr. to serve (Tr. Trans. at 141-142; 1066 1067.) Young was born in Guyana on April 7, 1951 and had worked as a deckhand and bosun aboard vessels several years be 1999. he wor he immigrated to the Uni (Tr. Trans. at 907; Ex 203.) working for Moran as a deckhand in 2006. Flor before began (Tr. Trans. at 17; t 203; 324.) Young became the deckhand of the a vessel orientation on Tug in August 2008, and rece uding its deck rna frequency of States in After arriving in the U.S., for a fishing boat company 1122-1123; Exh the Caribbean ibit 324 inery. §§ Tug 14-16.) Given Tug's work on the Hackensack River sludge run, was familiar with and had experienced the Little Ferry to Newark run and performed the trip on the same watch th Al n Tug. and was a competent deckhand and qualified to serve on (Tr. Trans. at 138 139; 139; 143-144.) As master or captain, Staszko was "re safe, economic and efficient Trans. at 1132.) onsible for the ration of the vessel." (Tr. As mate, Allen was the "direct representative 6 of Moran and responsible for administering Moran policies and procedures. II (Tr. Trans. at 68.) crewmembers aboard t As from the Tug on the night of the inci including engineer Best, were subject to Allen's Trans. at 67.) Best's primary re maintain its equipment. Deckhands rs. 0 (Tr. ibility on the Tug was to (Tr. Trans. at 196.) to assist on deck if asked by the at 198.) ain, all Best was availab ain or mate. (Tr. Trans. rd Moran tugboats handle lines, act as lookouts and do whatever else is ired of them. (Exhibit 313, 104. ) in 1965, has two engines and The Tug was construct long, 27 feet wide, weighs 199 gross tons and is 91 produces approx Exhibits 7, 92.) et wide and epower. ely 2,000 Barge is approximately 272 feet long and 68 s a draft of 13 14 feet, and weighed approximately 15 million pounds on the ni (Tr. Trans. at 69; 1271; Exhibit 92, 9.) a "notch" at 71; 296; marker indicat 1 up. (Tr. Trans. at 68 69; t would link the Tug to 184, photo 12.) where the t of the inc The Barge does not barge. The bow of the Ba of the bow of the Tug (Tr. Trans. at 71.) 7 (Tr. Trans. has a ld The Tug. uses "push gear" to secure the Ba (Stipulated Facts River, the bow of the t Barge. ~ to the 15.) When pushing down the Hackensack is aligned (Tr. Trans. at 70.) st the bow section of The bow the Tug is not aligned against the stern of the Barge, and t Barge is instead "pushed backwards" because there is not enough room in the r at around. Ie Ferry to turn the Ba (Tr. Trans. at 72.) The "push gear" includes push lines that run on the bow section of the Barge to Tug. (Stipulated Facts 'l1 16.) a fixed line. ~ side) aft quarter bit around the capstan to the H-bitt (so t 184, photo 33.) the capstan. (St The sta rd push (JPTO 15, 16; Tr. Trans. at r is adjustable by use of deck. The capstan is located on the a ibit 184, photo 33.) (Tr. Trans. at 1060; Tug has a ten horsepower capstan. capstan is a mechanical, electrically-powe in the starboard push line. signated main towing lines, the push gear or ated Facts at 'l1 18; Exhibit 384, photo 3.) starboard (Stipulated Facts at 'l1 19; push lines, are the Tug's equipment. 18; 1026-127.) h line is 17; Exhibit 184, photo 31.) starboard (right side) push line passes from presumably because of its shape). s aft quarter bitts of the The port (Ie (Stipulated Facts at the deck drum (Tr. Trans. at 74; 227.) 8 A to bring When the Tug and Ba ("made-up") at the sta ttle Ferry, t quarter a times around (Stipul are secured to each other starboard push line passes from on the Tug and is wrapped several capstan, and then tied off on the H-bitt. Facts at ~ 19; 23.) The capstan is controlled by a "capstan controller" which, on the night of t s from the located approximately 36 bulkhead of the main house of the Tug. 20; Exh 384, photo 3; 24.) stop black. (St ed Facts at ~ (Tr. Trans. at 229; of the inci t nt, the forward white and the reverse button was tons were pa pa stan on the aft The controller has three but tons: forward, reverse and stop. 389, photo 26.) At the t incident, was (Exhibit 389, photo 26.) A "swing maneuver" is used to bring in slack that has maneuver down the r rna a rd push gear as the Tug and Ba in the sta deve r. In conducting the maneuver the first, a swing to the right, the second, s three turns: ng to the left, and the final swi Facts at ~ 22; 25; 31.) back right. ipulated During the first right turn, the Tug is t (swung) to starboard about 10-15 degrees with of Tug swingi stern 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. at 712; Exh Maneuver.) it 304, Animation of Standard Swing 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; Exh it 304, Animation of The deckhand activates the capstan, by use of the forward button on the capstan controller. Trans. at 91-92; 99.) The capstan turning in the Animation of Standard Swi pulled rward slack that has developed. direction brings in Maneuver.) , the capstan is stopped. (Exhibit 304, Once the slack has (Tr. Trans. at 712-13; t 304, Animation of Standard Swing Maneuver.) deckhand then unt towl between the capstan and the H-bitt, on the H-bitt. indicat slack that is now then re-ties t towline (Tr. Trans. at 713; Exhibit 304, Animation of Standard Swing Maneuver.) ses The wrapped around s the towline that had the H-bitt, manually pulls in (Tr. When this is done, captain or mate that that the towl line is "all fast," securely ti has deckhand off on the H bitt, and it is safe to commence the final turn in the swing 10 maneuver. . at 713; Exhibit 304, Animation of (Tr. Standard Swing Maneuver.) tIe Ferry-Newark trans On the maneuver is ,this rformed on the approach to t ng Jackknife Bridge, in the vicinity of Buoy 18 because of the natural bend and widening of the r r at this into 1093; 1227 1228.) Under Moran's Sa codi in its (Exh y Management System, rations Policy and Procedures Manual ("OPPM"), the navi person to att (Tr. Trans. at 83; 91; or has scretion to callout a second on the aft deck during the 1 tightening. 313 § 5.2.4.1.) Prior to December 26, 2009, the Tug had towed Barge 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 t Barge back to Wilson Avenue. (Tr. Trans. at 22). The Hackensack River is a tidal waterway and Litt Ferry-Newark trip is known as a "tide job," which must be 11 rformed under ood t conditions to allow r sufficient depth in the river to accommodate the loaded Ba at 1074-1076.) The arrived at Little before the tide changed from ebb (meaning the water in the r south or down or upriver). r) to flood (when water is flowing north is always performed under substantially similar and current. conditions of t (Tr. Trans. at 80; 1075-1076.) Tug arrived at Litt at about 11:00 p.m. Ferry on December 26, 2009 (2300 hours) wi (Tr. Trans. at 72-73; 77; bow section of t Staszko and Taibi on t 13.) When the flood bow of the Tug against t tide began, Staszko positioned t the Tug to r is flowing (Tr. Trans. at 1076-1077.) Because the move is a "tide job," watch. (Tr. Trans. Taibi made up (conne Barge, and dec Barge, assisted by two men aboard the Ba Trans. at 1073-1074.) The men on t Spectraserve, the opera tor of barge worked for Barge and not Moran. Allen and Young were off duty dur (Tr. .) the Tug and Barge rna -up procedure. Taibi handled the lines on the Tug and t crew the lines pass Trans. at 1026-1027.) During the Tug to the Ba make-up process, 12 ,s (Tr. Tug was maneuve so that Taibi could ss the Tug's port pu the Barge where the line was se of Barge. line to to a bitt near the corner (Tr. Trans. at 1027; 1079-1080; 260; 354; 355; 356; Exhibit 84, photos 30-32.) Taibi then secured the port push line to a t on the stern of Tug. (Tr. Trans. at 10275; 1079-1080.) The port push line was a fixed line secured by hand (without the use of the not adjusted during the t After the maneuvered t tan) and once made (Tr. Trans. at 136.) push line was secured, Staszko Tug so that Taibi cou starboard push line to the Ba pass one comprised of a shorter Kevlar line wi of the Kevlar line. Barge. st. (Tr. line was a loop or eye at one end A shackle is fixed to other (Tr. Trans. at 74; 101; Exhibit 184, ster line with an eye spliced into photo 6.) A seven-inch po 's starboa one end is then secured to the led four t of the Tug's , where it was made Trans. at 1027; 1079-1080.) The starboard pu that is secured to st, was s through bitt to the Tug's capstan. aft quarter bit, shackle, then led around the er (Tr. Trans. at 74; 139140; 1081; Exhibit 184 photos 28, 33.) This four-part line (also known as a four-part purchase) creates a mechanical advantage with the result that any forces appli to the 1 13 at the corner of the Barge are reduced by a factor of four when the line is brought to the capstan. (Tr. Trans. at 139-140; 1329.) After setting up starboard push gear, Taibi 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 th the line and activated the button causing the push line to draw tight. 1028.) Taibi added addit At this po (Tr. Trans. at 1 clockwise turns of line around the stan until the capstan was full. 1028.) stan's "forward" (see Tr. Trans. at 140-141; , there were five turns on capstan. (Tr. Trans. at 142; 1028; 1212-1213; 1317; 1332; Exhibits 354; 184, photo 33; 336, photo 006; 344, photos 049, 051.) After Taibi fil of the line to tan he secured up the ed on H-bitt Tug close to the Tug's after bulkhead. wi centerl tail of the Taibi made the 1 fast 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 At this int, the wind was blowing northeast at 25 mph, it was 35-40 (Tr. Trans. at 79; ibit 9.) It was ra 1120.) The current of the Hackensack degrees true, and Trans. at 286.) current was s s Fahrenheit and lity was "fair." ing. r was flowing at 56 reciprocal was 222 grees true. ver against the direct downriver. of the Tug and Sa (Tr. Trans. at 80.) was approximately two and a half knots or more. It was a "good flood current." planning meeting be The current (Tr. Trans. at (Tr. Trans. at 80.) watch at midnight len and Young assumed a pre shi (Tr. current was a flood current, meaning the which was 288. ) (Tr. Trans. at re t he unit got underway. (Tr. Trans. at 138-139; 143; 167-168; 1034; 1224; Exhibit 2). Little Ferry on December Barge and Tug 27, 2009, er getting underway, just after midnight. len steered from the upper wheelhouse of the Tug while Young stood by in galley. (JPTO 8 and 9.) During the trip down the towline developed Hackensack River, the starboa two of slack due to maneuvering of the Tug one to the Barge. (Tr. Trans. at 82 83.) At about 1:00 a.m., or about an hour a er departing Little Fe , the Barge and 15 were between the Route 3 tandem bridges and approaching Buoy 18 . . ) Allen contacted the upcoming Jackknife Bridge to ask for an openlng. (Tr. Trans. at 86-87; 146; t 3). , using the Tug's radio, Allen contacted Young in the galley and told him to get to tighten up the lines. (Trial Tr. 87; 146.) It was still raining with a wind of fifteen to twenty knots. (JPTO 11; Tr. Trans. at 129; 138-39.) When summoned by Allen, Young was engaged conversation with his wi could wait inside the a on his cell phone and asked if lley a bit longer. len agreed because of the weather conditions. (JPTO 23; Tr. Trans. at 84-86; 147; 171; Exhibit 377.) st the second of the Route 3 br Just s (near the "dolphins" marked on Exhibit 4), Allen instructed Young to head a maneuver. to begin t line tightening in the swing (Tr. Trans. at 146-148; Exhibit 4.) Young acknowledged the order, left his cell phone and eyeglasses in the gal wal back to aft deck. , and (Tr. Trans. at 87; 101; 171.) Allen began the swing maneuver as Young was walking aft (see Tr. Trans. at 88, 89, Exhibit 6 ("Allen Statement") 1) , 1 The "Allen Statement H is the statement Mate Allen wrote for himself two or three after the incident. (Tr. Trans. at 96 97.) Allen that when he wrote the statement, he was trying to be as accurate in [his] recollection as possible. H (Tr. Trans. at 97.) 16 right rudder and started the swing as [ and "put t [Young] to come out on deck." Allen put t swing. i the first turn, to the right. about four to the second st (Tr. Trans. at 90.) Duri left that four to five seconds of approximately five degrees (Tr. Trans. at 90.) moving around From the upper saw Young walk a a After len applied Ie closer to the Ba observed his shadow deck area. (Tr. Trans. at 148-149; 1231.) Ihouse, Allen could not see Young operate capstan or handle the lines. (Tr. Trans. at 1231.) Barge and Tug began swinging to the right, stern of the Tug rudder which brought t , thereby gathering slack in the starboa (Tr. Trans. at 92; 101; 1232; 1238.) As Allen moved rudder left, Young and 26.) After Allen inst him to "take it t as it comes." (Tr. Trans. at 91; 150-151; St ~ 6.) ve seconds of the maneuver, len swung the Al push gear. (Tr. Trans. at 99; Exh right rudder in before called lated Facts at Young to remove t saw the Tug's deck lights flicker, which indicat tan had been activat slack, Allen to him that (JPTO 27; Tr. Trans. at 92; 101; 149; 750.) 17 Young pushed the forward button on t controller and took in the slack. capstan (Tr. Trans. at 293.) the slack of 1-2 feet was taken in Young stopped the capstan and tt. 2 to take off the line on the unwrapping the tt. Al proceeded with the approximately 35 to 60 seconds. ting in After and the Young began turn for (Tr. Trans. at 94; 99; 312.) left rudder, Allen wanted the to swing toward his target, a set of condos on the eastern side of the Hac sack River near the Jacknife Bri (Tr. Trans. at 105; Exhibit 5.) to sw and Barge During the left turn, the Tug past the condos and st the intended course, towards a shallow 14-15' deep mound near the eastern bank of the river. (Tr. Trans. at 105 106.) swing went too far past the condos, Allen t rudder to check the "all After the left put in left swing although he had not yet rece st" call from Young. (Tr. Trans. at 99; 102; 130.) Because of You~g's death a~d the abse~ce 0 any eyewit~esses, the Young's acts are based o~ the established facts and the inferences from those facts. (Tr. Tra~s. at 92; 101; 293.); see also Miller v. Phill 813 F. Supp. 2d 470, 47 (S.D.N.Y. 2011) (a fact fi~der is e~titled to draw "reasonable, logical, proper, just infere~ces" from facts had found, but is ~ot allowed to " or "jump beyond" the "logical exte~sion" and "conclusion" of the facts) i People v. Benzinger, 36 N.Y.2d 29, 32 (N.Y. 1974) (an infere~ce must only be drawn from a proven fact or facts and then o~ly if the inference flows natural reaso~ably a~d logical from the prove~ fact or facts, not if it is ive) . 18 After putting in right rudder, Allen began to notice loss of control of in the water Barge and Tug saw the (Tr. Trans. at 99; 101; 287), which indicat starboard push line was not taut. The Ba continued moving toward current. When east bank of the river, len cormuenc towline caused the line tan. Young started to and got entrapped in the towline after 20 more turns of the t o Allen, had paid out. Two tan paid out as Young was s death and 30 50' of line ,s right turn and as the forces on t to start to pull off the ezed to id out as the starboard line came to the movements of k, moving thereafter in re and Ba of 50° or more (Tr. Trans. at 287.) stern swung to port, t s that and Tug significantly off the current and swung upwa off push gear (Tr. Trans. at 301; 314.) Allen concluded that something had wrong on aft deck and attempted several times to call Young on the radio received no response. no steering capabil tightly connected. (Tr. Trans. at 104; 151.) because Tug and Ba len had were not (JPTO 31; Tr. Trans. at 151-152; 155.) 19 Allen then rushed down to 156. ) aft deck. (Tr. Trans. at 106; It took Allen about sixty to ninety seconds to arrive there from the wheelhouse. (Exhib 190 at 10 (referring to Allen deposition testimony).) When Allen arrived on he walked toward noticed port side of the a capstan on the a side of the H-bitt, and turns of line had been removed from (Tr. Trans. at 107-9.) the area in between the tt and capstan. H-bi tt. He did not see Young as 109. ) between (Tr. Trans. at 110.) (Tr. Trans. at Allen then walked and capstan over t H-b towline. the capstan. Young's body was eleva head was on ion. off rectly (Tr. Trans. at Allen did not see Young until he brushed and saw him caught pos walked toward line between the H-bitt and the capstan was slack and on the deck. 111.) deck, against him (Tr. Trans. at 109-110.) deck and facing a s and portion of the capstan at the 12 o'clock forwa (Tr. Trans. at 99; 110; Exh Best and Staszko. ft the aft deck to s 6, 14.) len then (Tr. Trans. at 112.) Best arrived on the port side of the aft deck and proceeded behind the H Trans. at 199-200.) itt and arrived at the capstan. Stasz (Tr. came down the starboard side. 20 (Tr. Trans. at 1162.) When st arrived, the capstan and the was taut. found Young's head on t o'clock found the line between (Tr. Trans. at 202.) rt side of t 7 capstan at t ion and Young's body was positioned at an angle, further to the port s than his lower body with his lower body at around 10 o'clock on capstan. (Tr. Trans. at 200-202.) Young's right arm and hand were tuc the tan and his le radio crophone. into his (Tr. Trans. at 110; 203.) (Tr. Trans. at 207.) approximately at show Young's head posit of his body, with his head located 7-8 o'clock position. Staszko and Best arrived at the a single figure-ei between the st lowered (Tr. Trans. at 1163-1164.) scene phot starboard s After k, being sure to "keep things the way they were the best [they] could." The cr ng the There were two unwrapping the lines around Young, Staszko and Young's body to t st against arm was hanging free and wraps of rope around Young. to He t 271.) When deck, they saw that only a turn was around the h tt, that the line tan and h-bitt was tight and that there was a an. 1 set of turns around the 205; 207; 233; 235; 1096; St (JPTO 34; Tr. Trans. at ated Facts at 21 ~ 34.) Best then a ivated the capstan to start pulling in the line in order to make up the Tug to Barge again and recalled bringing a "s--tload" of line. (Tr. Trans. at 212 14.) ling up so high t The line was starboard to ke it from falling onto Young's body. Trans. at 214-15.) had paid out, Best first est or six revo t." a mile of line. Seemed like say maybe close to 50 feet " It . But I would Somewhere between 30 and 50 (Tr. Trans. at 219.) During the process of ng (Tr. Trans. at 217.) s deposition testimony at trial, that "[I] - it seemed Ii retri et of line is ions of the capstan, Best responded "[w]ow, seemed more than Best affi (Tr. that 30 feet of line when informed that 30 approximately f feet of 1 Best had to push it to ng Young to k and ing back and line, the Tug was (TL Trans. at 209-210.) During the Tug was investigation t morning, the rded by the New Jersey State Police, the New Jersey onal Medical Examiner and the U.S. Coast Guard. at 1098; 1100; seer e.g., capstan was tested in (Tr. Trans. its 7; 8; 9; 186; 189.) The sence of the Coast Guard, and it 22 was scovered the capstan could not reverse direct Coast An rd invest reverse re~ay ne room in operated in ion by Best and the ing officer confirmed the capstan's had overloaded and tripped out. 158; 1101-1102; 1301-1303; Exhibits 191, 194); 160; 234 (Tr. Trans. at (Tr. Trans. at 35; 235; 1102; 1234-1238; 1310; 1320.) Moran suggests that this res incorrectly press button when the line the reverse button inste capstan, initiated of the forwa this was ing off and Young's subsequent death. not any evidence known as a " ted because Young sented as to a cause for t rmal overload"), since nei cause of Yet, there is trip (also r one turn of the line around the H-bitt nor Young's 200 pound body trapped capstan would provide necessa Trans. at 307 308.) the towline, which tension for an overload. Nor was a "hoc cou~d (Tr. Trans. at 223.) have cau " or "asshole" found ln the overl o that ni Moreover, if the towline was slack after Young had been entrapped, as Allen testified, then could not have ca (Tr. the thermal overload to tr towline , since to trip the overload, there needed to be tension or load on the tailing side of t capstan. The starboard gear would also (Tr. Trans. at 307-08.) had to go slack first as 23 line paid out reverse, but Allen has no recollection of that, only that r went slack, which is consistent instead with Claimant's under great of a pull off of the Tug, the (Tr. Trans. at 104; 319.) ng. Further, starboard push line ring testing by CIa ,s rt aboard an would not stall, let alone tr overload, with one or two turns on the H-b 289-290; Exhibit 309.) In fact, t. the thermal (Tr. Trans. at Dr. David Tantrum ("Tantrum"), Moran's expert, acknowledged that a line with one turn or one itt would not cause t and a half turns on t line to go hard, as required by Moran's reverse button theo cating a cause for the line to go hard dence was adduced to stall the capstan. (Tr. Trans. at 71.) Young mistakenly ope rat the capstan rotating Addit an in reverse and t lly, if caught reverse, "the only forces on Young [would have been] the we of No of the push gear and the resistance red by one figure eight on the h-bitt," which would yield ze forces of approximately 3.5 to 6.7 PSI, not enough to cause Young's crushing injuries. Young's body positi (Tr. Trans. at 305; 318.) in that he rotated in t capstan from the 12 o'clock to 7 o'clock position, also 24 precludes the theory that he accidentally hit the reverse button. .} Because the capstan turns (in both forward and reverse) at approximately one foot r second, the capstan would have to rotate for at least 30-50 seconds in order 30-50 to payout, during the last 10 seconds of which Young would have caught in the capstan. (Tr. Trans. at 319-20.) would have had to watch 20-40 of towline payout for 20-40 seconds without taking any corrective action for theory to hold. (Tr. Trans. at 253 54.) the capstan was also ha Moran reverse mode on y ever used and the thermal overl prior to the morning of December could have occurred at any t 27, 2009. Young (Tr. Trans. at 1166.) After t initial investigation, on January 26, 2010, the Occupational Safety and Health Administration ("OSHA") vessel and on March 31, 2010 conducted an inspection of issued a citation against Moran, alleging certain violations of 29 C.F.R. and the Occupational Sa The citat y and Health Act of 1970. stated that H[iJssuance of t s citation does not constitute a finding that a violation of the Act has occurred un ss there is a failure to contest as provided for or if contested, unless this Citation is affirmed by the Commission or Court." ( t 167.) 25 the Act, ew Moran contested the citation, and it was later withdrawn unilaterally by OSHA without any considerat Moran or agreement by Moran to perform any abatement. Exhibits B, C, (See D, and E to Petitioner's Motion in Exclude OSHA by tation. ) The Medical Examiner foll ng post mortem f factors, x Zhang ("Dr. Zhang") made s at autopsy. In terms of external Dr. Zhang determined that the 1 Young's torso compressing his r left abdominal area, 395 p. 24; 32.) to wrapped twice around t lower st down toward the leaving pronounced ligature marks. He ermined that the ing diffuse petechial hemor (Exhibit st showed and eating blocked circulation causing rupture of the small veins and capillar s. (Exh t 395 p. 29-30.) In terms of internal factors, while certa Dr. Zhang found abdominal organs were herniat scrotum, others, including the lacerated 1 upwards through the tear in pleural ty, col diaphragm and downwa into r, were herniated o the t ing the right lung and pushing it into the left pleural cavity. (Exhibit 395 p. 32.) 26 In addition, Dr. Zhang termined the massive pressure from fractured twenty-one , mostly on the right side, preventing Young from even taking a th. ( Exh i bit 395 p. 33.) report also states that the lumbar vert from the sacrum, line I His body was separated (Exhibit 395 p.43), and that all five lumbar transverse processes were fractured. (Exhibit 395 p. 43.) Dr. Zhang found that when the sacroiliac joint separated, it transected or severed abdominal aorta and vena cava, the two maj or blood vessels in the body. 42.) it 395 p. Dr. Zhang concluded that Young's severe injuries resulted lity to breathe) in traumatic or mechanical asphyxia ( causing his death. 820.) (Exh (Exhibit 395 p. 50-53, Young lost all re circulatory collapse. satura tion dropped, iratory 68; Tr. Trans. at ion, followed by (Exhibit 395 p. 66.) Once Young's oxygen lost consciousness. (Exhibit 395 p. 58.) Based on the ligature marks and hemorrhaging, Dr. further concluded that Young's heart continued pumping while constricted in the capstan line. was bei Tr. at 29 30.) (Zhang Dep. Dr. Zhang noted that Young had over 20 rib fractures and also had a partially punctured lung as well as a separated pelvis. (Zhang. . Tr. at 33; 34; 39 43.) 27 These juries would have caused Young difficulty ath , but still have taken in some oxygen while being (Z Tr. at 823.) The capstan line tourniquet, allowing blood to continue to ssed. ioned as a rculate to Young's and brain while he was being compres (Zhang Dep. Tr. at 44; 54; 56.) Dr. Zhang noted that the observed during the post-mortem al hemorrhages te nation indicated a (Tr. Trans. at squeezing of the body and a cont 823; 826.) s to While the heart cont pumps blood to the brain so that the oxygenated. a (Tr. Trans. at 824; 827.) it preferentially can continue to be Based on the petechial traumatic injuries and the hemorrhages, the location of torso, Dr. Zhang concluded that Young absence of blood below t was conscious for more than two minutes. (Zhang Dep. Tr. at 56 59; Tr. Trans. at 825 26; 829.) Dr. Barbara Boll forensic pathology had been able to following his r , also ("Dr. Bollinger"), Claimant's 0 her opinion that Young ous for at least two minutes (Tr. Trans. at 828-829). Dr. Bollinger based her conclusion that Young was conscious for two 28 to cit e minutes on the presence of petechial hemorrhaging, and a medical study entitled ial Deaths and Petechiae. In contrast, Dr. Lone Pet 's forensic pathology expert, concluded that Young had lost cons 1516). ("Dr. Thanning"), ss within ten seconds. (Tr. Trans. at 1515 Dr. Thanning supported her testimony by opining that Young lost consciousness as the result of a neurogenic coma, caused by intense pain from his crushing injuries that were incompat le with conscious survival and a vital reaction. (Tr. Trans. at 1541.) Dr. t the absence of significant blood maintained pleural consciousness. also Young's twenty-one rib fractures, ty, a instantaneous an in blood pressure, with concurrent (Tr. Trans. at 1508-1509.) Dr. specifically was report which Dr. Thanning subs Human Pathology, a physical evidence (Tr. Trans. at 1545 47.) CCs. s to the Forensic Examiner, Journal of Journal of Investigative Laboratory (Tr. Trans. at 1538.) though, Dr. Thanning did not pleural cavity, other than to note his t cifi ss of of Dr. Zhang as to how much blood question the test methods. by a lack of At the time of his sit not produced any medical journals, the autopsy, or other support 29 r her t ry tal reaction would begin to show within ten or pain alone would automatically cause a unconscious. not (Tr. Trans. at 1543-45.) Dr. Thanning also any study about the amount of compression a human body can sustain while remaining conscious. 1544.) (Tr. Trans. at Dr. Thanning acknowledged instead that everyone rent unique threshold of pain, for instance one rema son to s a son may conscious during amputation while another may not, that she was unaware of Young's personal pain Trans. at 1543-44.) In all of her times testi Id. i (Tr. about pain and suffering, Dr. Thanning could not recall ever testi ing that the excruciating pain of crushing injuries was precipitating factor of a neurogenic coma t almost immediate loss of consciousness. would cause (Tr. Trans. at 1552.) Based upon the credible testimony of Dr. Zhang and Dr. Bollinger, and the lack of support r Dr. Thanning's conclusions, Young remained conscious for at least two minutes after becoming entrapped the capstan by the towline. Experts also testifi forces that resulted in as to the holding and pulling ying out of the towline. The 30 le dence of the Claimant's expert, Eckhardt ("Eckhardt"), establis the va of t primary purpose of the (Tr. Trans. at 291.) compet forces. tan is to pull a load. When there are sufficient s around the capstan and sufficient back tension on the tailing si can pull up to the 1 5,500 pounds , then it t of its horsepower, or in this case (consistent with a ten horsepower capstan). capstan has a resistant Trans. at 291.) dependent on the coef wrapped around (Tr. rce heavily cient of friction of the type of rope (Tr. Trans. at 293.) When Young was found on the capstan, there was one figure-eight turn on the h-bitt. Based on the knowledge that the (Id.) pulls off the , and t capstan with two turns on the h-bitt, the type of that the holding force was 5,5000 pounds, Bart Eckhardt ("Eckhardt"), Claimant's expert, applied a formula to determine a range the coefficient of friction of rope. determined that the coefficient of friction of between .19 and .22, but most likely closer to .19. at 293; Exhibit 392.) through a " rope used was (Tr. Trans. Additionally, the starboard towline ran r-part purchase" on its way from the Barge to the capstan, which provides a four-to-one "mechanical advant the capstan. He (Id.) " of (Tr. Trans. at 301-02; Exhibit 184, photo 28.) 31 Wi this i ion, Eckha calculated how much the could hold with four turns and with f back tension offered by one f ( Id. ) Account power in turns with the maximum eight turn on the H-bitt. for the r-part makeup's increas s calculations, Eckhardt testified that t exerted by capstan, or what the holding compared to what forces it is s times t on the actual of ected to, is 5,5000 Thus, if tan by the current and the Ba were greater than 22,000 pounds, then the line would pull off. holding an is capab (Tr. Trans. at 302.) r, or 22,000 pounds. rces exert tan able to 90. ) (Tr. Trans. at 299; The current of the Hackensack River was flowing at 56 rees true, 1 heading was 222 degrees true. the rec (Tr. Trans. at 286; Exhib 91.) The Bridge was 201 degrees true, and Tug toward the Jackni (Tr. Trans. at 287; or 21 degrees off the current. During t ended course of the 91.) first turn of the swing maneuver, the unit swung approximately f At that point, immediately turn, the Barge and ten degrees off right. degrees to t lor to beg were on an current. (Tr. Trans. at 721.) ng the le le approx (second) ely five to (Tr. Trans. at 287; Exhibit 91.) 32 The Barge and Tug were at that angle seconds. (Tr. Trans. at 94; 99.) approximately 35-60 The unit was approximately 20 degrees off the current when on a 1 towa Trans. at 287; 298; Exhibits 5, 91.) 30 degrees off condos. the bridge. (Tr. unit was approximately current when it was on a line towards the (Tr. Trans. at 298; Exhibits 5, 91.) to go to the aft deck a When Ie er realizing something was wrong, the unit was at about 171 degrees true, no more than 50 degrees t current. (Tr. Trans. at 287; Exhibits 5, 91.) recalled seeing the Ba and condos, indicating that swing Allen st his line to the put in right rudder when the Barge were more than 30 f Tug and rees off the current. (Tr. Trans. at 105.) At 10 degrees off the current, t Barge and current tan. were exerting approximately 39,000 pounds on the 85.) Trans. at 299; Exhi (Tr. At 20' off the current, the Ba and current were exerting approximately 81,000 pounds on the capstan. current, (Tr. Trans. at 299; Exhibit 86.) At 30 c off the Barge and current were exerting approximately 170,000 pounds on the current, the Ba tan. (Exhibit 89.) At 40° off the and current were exerting approximately 219,000 pounds on the capstan. (Exh 33 t 89.) At SOc off the current, tely Barge and current were exerting approx (Exhibit 89.) 279,000 pounds on the capstan. Due to the 4-part purchase, each of t previous five calculat must be divided by 4. with this ision, the "pulling forces" on greater t the "holding forces" at every 10' interval start Even capstan were s, or when at least 20,000 pounds of force from t at 20 "pulling capstan s" (81,000 beyond t by four) were acting on a it and with a conservative th four turns a tension approach. the (Tr. Trans. at 305.) (Tr. Trans. at 299-300; 305.) line to the bridge, or approx rce was sufficient to pull the 1 (Tr. Trans. at 300.) k- At angles ely 21 degrees on, off of the capstan. Assuming there were turns around the capstan, Eckhardt testif that under t (with maximum holding on the H-bitt), the line would pay off at 50' off the current. conservative (Tr. Trans. at 392.) conservative assessment, the assumption To ensure a five turns were around the capstan is adopted. If there was slack between t (as there would n had Young around the capstan), the holding 34 H-bitt and t capstan untying the wraps s would drop cons rably, 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 position at 171 degrees true was approximately 45 seconds and, after Allen entered the final ght rudder, for the 1 it would take approximately 15 18 seconds to pull off the capstan. Thus, even with f (Tr. Trans. at 301.) turns on the capstan, the forces exerted on the capstan when Allen put in right rudder were enough to overcome the holding force of the capstan, or the 22,000 pounds, and cause the line to pull off. Further, the 30 50 of line that pulled off was consistent with the angle of the Tug relation to the Barge following the last right turn by Al (Tr. Trans. at 315.) The 30-50 feet of line corresponds to a dif rence 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 four-to-one makeup of the push gear. 35 cause of the The physics and scr rce calculations comported with the ions from the fact witnesses and establish that, to a reasonable degree of certainty, the towline pull stan as a result of the swing before gett off the ting in right to check the "all fast" from Young, the stan not yet being secure. (Tr. Trans. at 327.) Because there is no notch in the bow of the Barge in which t be "embedded," the engagement of the Tug against t "depend[s] purely on the tension of the lines." 296.) The calculations as to Ba (Tr. Trans. at resulting tension on confirm the explanations that the tow can lines by the Claimant, as it shows s were high enough when Allen turned at more than 30 degrees to pull the line off capstan. (Tr. Trans. at 293-94.) Moran's expert, Tantrum, was not capstan. rce exerted for t Tantrum acknowledged t coefficient of fr type of rope, to this number, accounting turn calculated re line to pull off t his calculation of t tion was incorrect based on using the wrong ions were correct as that Eckhardt's calcu with respect to overall calculat s, the four-part purchase, Tantrum testified t there was only 3,437 lbs acting on 36 c stan. (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 the facts as testified to by the eye tnesses and by the specific circumstances of the accident. Tantrum, unlike Eckhardt, did not base his calculations on the medical injuries. (Tr. Trans. at 55.) nce establishing Young's 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.) The squeeze rce under Tantrum's payout theory, in contrast, is not suf 319.) cient to cause Young's crushing injuries. (Tr. Trans. at Tantrum testified that he did not investigate or look into whether this medical evidence was accurate, or whether his theory could possibly create the injuries 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 feet of line on the ground, which he had to walk over to reach Young. (Tr. Trans. at 51.) Tantrum's calculations are based on the line was slack, as ing taut. (Tr. Trans. at 52.) If the line len testified, Tantrum admitted that his theory does not hold and cannot account found at Young's death. r the some 30-50 feet of line (Tr. Trans. at 56-57.) Tantrum's theory likewise discounts the testimony of Allen, Best and Staszko, that Young was facing starboard when he was found, and that s body rotated in t capstan from a 12 o'clock position to an 8 o'clock position, bringing the line from s (Tr. Trans. at 53.) If Young's body did rotate, as all witnesses testify to, Tantrum acknowledges that fails. ck to taut. ree s theory (Id. ) In addition, Tantrum's calculations re ing to the four part purchase fail to take into account the specific rcumstances affecting the force on the 1 at the time of Young's death. s and the capstan (Tr. Trans. at 48.) Tantrum opined that the four part make up would reduce the load at the capstan as opposed to the line on the barge, whi barge. (Id.) would be F- The force of F-barge was calculated as the thrust of 10,000 pounds by a moment arm of 4, or 44 by 10,000, whi 38 would make the F-barge 32,000 by the line on the barge. Trans. at 49.) (Tr. At this point, Tantrum explained that the sum the moments equals zero, as the 44,000 mult ied by 10,000 should be equal to 32 feet, which is the moment arm by F-barge, or a load of 13,750. (Id.) F-barge, or 13,750 calculated by Tantrum, is the force that would be in a single line. Trans. at 50; 436.) (Tr. Since the force on the capstan goes through the four part lineup, Tantrum then divided the 13,750 by get 3,437 pounds. force of t (Tr. Trans. at 49.) r to Because the holding capstan is about 22,000 pounds, as agreed to by both Tantrum and Eckhardt, with Tantrum's calculations, this 3,437 pounds would not be enough for the line to pull off the capstan or for Claimant's theory to hold. (Tr. Trans. at 49 50. ) se calculations relating to the four part purchase are from the perspective of the corner of capstan, and do not factor in the outsi capstan at time of Young's tho Barge, not the forces acting on the (Tr. Trans. at 69.) 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 the forces 39 Tug when Al acting on degrees initiated right rudder over 10 of the current, creating additional current 0 as the Tug tri to pivot the Barge the opposite direction. (Tr Trans. at 442.) Under these circumstances, and when calculating F-barge from the rspective of the what force would be required force, even to pull the line off the capstan, the F-ba accounting for the four part purchase, is 55,000 pounds. Trans. at 430). (Tr. Tantrum admitted that if he assumed that the 13,750 pounds was at the capstan, or looked at the equilibrium calculation from the point of mult ew of the capstan, then ying through the four part series, there would be approximately 55,000 pounds at the corner of the barge, which would be enough to pull the line off the capstan. at 6 70.) (Tr. Trans. This calculation of F-barge as 55,000 pounds comports with the facts as testified to regarding Young's body placement and the slack in the rope, and the injuries that Young sustained. Further, Tantrum's calculations are based on numbers calculated by expert t ck van Hemmen ("van Hemmen"), s case. (Tr. Trans. at 66.) so a Moran Van Hemmen opined that when the tug rotated from a 12 o'clock position against the Barge to a 45-degree position as 40 line moved out, you would only see 10 feet. (Tr. Trans. at 68.) fails to calculate in the four the 10 feet to translate agreed t stan. above pre s figure rt purchase, which would cause o 40 this was incorrect. rests on the assumption However, et of line. (Id. ) (Id. ) Tantrum Tantrum's theory also Young hit the reverse button (Tr. Trans. at 57 58; 71 72.) the The facts as found ude this assumption. In addition to Tantrum's calculations, Moran also introduced a simulation to show that the capstan can hold Vl the line with four or five turns under the normal circumstances of a swing maneuver. (Tr. Trans. at 47.) fails to duplicate the This video, though, cific circumstances the night of the incident that contributed to Young's death. video does not document the Tug swinging ifically, too far past the intended course, or Allen attempting to correct this error by putting in the right rudder too early and before he had received the "allcontrol of stU from Young, resulting in Allen noticing a loss of Barge and the Tug. (Tr. Trans. at 99; 101; 287.) Claimant's video was based on the facts on t of Young's death as testi Trans. at 27-32.) ed to by both Best and Allen. evening (Tr. Claimant's video showed that Allen did not 41 Tug to the swing r enough initially; that the Tug ght earlier than normal; that Allen saw then began swinging le lights dim as he swung and knew rated the capstan; that became concerned it was too len continued swinging le r left; that but then turned the he received an all-fast from right rudder to correct this be Young; that at this point, meant that Young had noti a loss of control as line began pulling out (as shown in the animation); and t pivot of the Tug against Barge as len lost control, given Young had not had enough time to finish loading t caus h-bitt, the line to pull off the capstan and Young to get ensna (Tr. Trans. at 29-30.) Claimant's video demonstrated the difference between these specific events and that of a properly timed swing maneuver, where the capstan can, as Moran shows, hold t line. (Tr. Trans. at 30.) The video indicated that on the night in question, the initial turn did not go far enough right, leaving less time to swing le (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 ved. (Id.) Best found only one turn on the h-bitt Because h-bitt, the forces entered the push pullout. (Tr. Trans. at 30). re was only one turn on the rand caus the line to In contrast, in a normally and 42 corre ly executed swing maneuver, as shown in Moran's video, deckhand, would have had t to finish making fast the h bitt before the final right turn, and this would prevent line from pulling out and allow the capstan to hold the line. .) While Moran d show that a swi maneuver can be executed without accident under normal circumstances. Claimant's cts as deo, which took into account the relevant testified to by Best and len, is therefore credited. With respect to safety precautions and idelines, Moran's OPPM is the manual in which Moran lists the "procedures that Moran uses." (Tr. Trans. at 1398; Exhibit 313.) ce President of New York and Moran's fshore Operations Peter Keyes ("Keyes") is responsible for the OPPM. (Tr. Trans. at 1398.) The OPPM contains certain written instructions and procedures govern kitchen operations, such as using an oven glove to handle a hot pot and how to safely put away knives the dishwasher, but contains no instructions with respect to line handling or the swing maneuver. "nothing in the OPPM about (Tr. Trans. at 1406 (there is swing maneuver. ") .) Moran also adheres to the International Safety Management Code ("ISM Code"), even though it does not have a 43 for the Tug under the ISM, certificate of compl (Tr. Trans. at 1399 1400; Exhibit 305), and the Responsible Carrier Program ("RCP") . (Tr. Trans. at 1399.) The ISM Code requires that for shipboard rations, "the company should establish procedures, plans and instructions, including checklists as appropriate, shipboard operations concerning the sa (Tr. Trans. at 1400.) for key of the personnel." Moran did not have a risk assessment for a swing maneuver and did not shipboard operation." ew a swing maneuver as a "key (Tr. Trans. at 1404.) The ISM Code also requires that Moran "assess all identified risks to its ships [and] personnel." (Tr. Trans. at 1402; Exh zard analysis would list the following: complete the task; operation to mitigate 305.) (1) the st A job s to (2) the hazards that might arise if the s wrong; and (3) risks. the precautionary measures needed (Tr. Trans. at employ a job hazard analysis swing maneuver, de t r I te the fact that 9, 642.) handling Moran did not luding the swing maneuver conducted by Moran is the type of operation that is amenable to a job haza analysis because it is a task that involves a capstan that comes under heavy load and strain. (Tr. Trans. at 624; 640.) 44 ------------ ... _------.----_. Rep requires companies such as Moran to "establish document procedures for the safe use of wires, ropes, chains, shackles, ratchets and winches." 399.) (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 t sa cs that raise y concerns, and require its captains and employees to address se issues and train for them. se safety topics are identi (Tr. Trans. at 1405.) ed and submitted to captains in the form of "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 cove captains then cover those topics with their crew. at 1144.) (Tr. Trans. Moran did have written procedures for other types of maneuvers, such as t at 1406.) , and the retrieval of a lost barge. (Tr. Trans. None of the Port Advisories issued by Moran to its captains prior to December 27, 2009, covered "sa 45 ty procedures." (Tr. Trans. at 1405-1406; Exhibit 178.) safety meetings conduct Moran's directives cover any sa 258.) The by Captain Staszko in accordance with the year prior to Young's death did not concerns. (Tr. Trans. at 1137-1138; Exhibit No Port Advisory concerned line-handling generally or capstan operations specifically. the year pre rations. ng Young's de Further, the sa never cove (Tr. Trans. at 1046 1047; ty topics in capstan ibits 178, 258.) Moran also did not have written procedures instructing mate or capta at controls during a swing maneuver that it was necessary to wait for an "all fast" call be back right. (Tr. Trans. at 713, 1412.) "positive communications" coming It is essential to have roughout the entire swing maneuver because deckhands are responsible for lines under strain, and line must be secure before the maneuver can proceed. Trans. at 642; 713; 715.) Otherwise the (Tr. r could slip out and subject crewmembers on deck to fatal hazards. (Tr. Trans. at 632; 643.) In addition to a lack of guidelines and sa procedures, swing maneuvers and swing r in antiquated, and most tugboat companies have repla 46 y ral are boats using the swing maneuver with "safer, more rugged, more reliable methods, which using sheaves and a tow drum is a lot stronger." (Tr. Trans. at 640.) tugboat companies t Moran is thus part of the minority of still employ the swing maneuver. Moran was aware of at least seven idents prior to th where Moran employees were injured during capstan Young's operations. (Tr. Trans. at 1417-1419.) Moran was also aware of a 2005 incident in which a deckhand from another tugboat company, K-Sea, got crushed in a capstan aboard the tug Sea while handling lines. (Tr. Trans. at 1419-1420.) s After that incident, Moran still did not issue any Port Advisory or change in any way the manner in which tas involving lines and capstans, including the swing maneuver, were trained for or conducted. (Tr. Trans. at 1402-1421.) ipment used on the Tug, the With respect to the triangular area between the capstan, h-bitt and capstan controller created a "danger zone" in which Young wor Trans. at 328i Exhibit 384, photos 3, 6.) (Tr. On several other Moran and other company tugs, the controllers were up to 6-7 feet away from the capstans. (Tr. Trans. at 558 61.) 47 OSHA ishing Young w eFR 1910.212, an unsafe workspace, i fically section 5 (a) (1) Safety and Health Act of 1970. 167.) ath and cit following Young's investigated the of the Occupational (Tr. Trans. at 330; Exhibit an electrically powered capstan that had no guarding to prevent t pulled into the nip point." Young's death, beh ( t employee 167.) After the capstan controller was relocated to an area the H-bitt, thereby allowing a of the r violation of 29 OSHA stated that the deckhand "operat from be Moran r zone. khand to work outside (Tr. Trans. at 225; 336; Exhibit 390, photo 20. ) Regarding Young's personal life circumstances, Young supported a him. ly financially dependent on He was married to Avril Young. and were ed three years later, financi The two met as teenagers in 1972. (Tr. Trans. at 902-03.) Though Avril had a son from a prior relat was the first marri Trans. at 903.) e for both Avril and the De They were a close couple, spouses, talking by phone every day t (Tr. Trans. at 72; 930.) 48 ship, this (Tr. ends as well as Young was on the Tug. Soon after marrying, in the fall of 1972, Avril gave ila. birth to Young's daughter, young From time Sheila was a Id, she and Young were very close, Young cooked for Sheila and Don, Avril's son, helped w h t parenting responsibilities with Avril. 904-05.) lities. for chil scovered that (Tr. Trans. at 907.) with spec ars old. 1 needs when (Tr. Trans. at 907.) school, nor has s (Tr. Trans. at from seizures as a baby and when she Sheila suf started school the Youngs dis house work and had lea Sheila was sent to a s was between 10 and 12 She did not graduate from high ever held a job. (Tr. Trans. at 911; 988.) Sheila has a daughter, Katelyn Rebecca, Young's only who is almost five years old. Avril moved to t at 90S.) Young joined Be (Tr. Trans. at 987.) United States in 1996. 1 in Guyana (Tr. Trans. r here, the two spoke on telephone and Avril would visit him Trans. at 940.) ndchild, Guyana eve year. (Tr. While Avril lived in the United States, Young h Avril's sister. (Tr. Trans. at 940; 943.) During this time, Young had a child, Nicholas ("Nicholas U ), w h 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 and Avril never contemplated with McDonald, vorce. (Tr. Trans. at 929; 943; 983.) Young lowed his wife Avril legally immigrating, in 1999. naturalized c izen f Trans. at 914.) f leavi (Tr. Trans. at 906.) years later. of Nicho gained sole cust the United States, He became a (Tr. Trans. at 910.) He s as of Ma 31, 2003. (Tr. Because Nicholas's mother was not able to ially support him and had moved from Guyana for work, Nicholas to live with various moved Nicholas to t United States. ly members, Young (Tr. Trans. at 917.) After arriving in New York in the fall of 2007, Nicholas 1 with d s aunt, a school teacher, and uncle in South Carolina 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 wi Young Avril. Nicholas .) According to Nicholas and Avril, Young was a loving, car , attentive parent to Nicholas. (Tr. Trans. at 918; 1688.) Even when Nicholas and Young were geographical y separated, Young made sure to telephone calls. in touch with visits and frequent (Tr. Trans. at 919.) 50 The two would speak every (Tr. Trans. at 919.) day and sometimes even twice a day. They would barbecue and play sports together, including baseball and basketball. (Tr. Trans. at 919; 1010.) Young helped Nicholas with his homework, enlisting the aid of his co-workers on occasion. (Tr. Trans. at 239; 919.) Young took Nicholas to the Tug to show his son where he worked. (Tr. Trans. at 1015.) The two talked about girls, and Young was teaching Nicholas how to cook. (Tr. Trans. at 1010-1012.) school. (Tr. Trans. at 1010.) clothing and school suppl ies. Young picked Nicholas up from He also bought Nicholas's (Id.) Prior to Young's death, Nicholas had school marks in 80s. (Tr. Trans. at 920.) After his father's death, Nicholas's grades slipped into the 60s, he had his first school ght, he began to act withdrawn and he stopped playing sports. (Tr. Trans. at 920; 921; 1011; 1012.) Nicholas has no one that has been able to replace the important role Young played in his life. (Tr. Trans. at 1012.) In September 2008, Young purchased a studio apartment in Queens as an investment property. 998; 999.) (Tr. Trans. at 955; 956; While Avril did not approve of the investment, she loaned him money for the down payment. 51 (Tr. Trans. at 950.) Though t s for the p deduct tax credits couple's accountant cla rty, Young never lived there. Trans. at 927; 955; 956; 979-982; 999.) Even a death, couple's accountant cla deduction on Avril's tax return. (Tr. r Young's the mort tax (Tr. Trans. at 981.) After purchasing the studio apartment, Young learned of an owner requirement that prevented him from renting it out resi immediately. (Tr. Trans. at 999.) Up and until the time of his death, Young and Avril li s. together at 58 03 Calloway Street in at 997; 1013.) Youngs the costs of their household lly, despite having separate banking and c accounts. (Tr. Trans. (Tr. Trans. at 975; 998.) As t card r living expenses, Avril and Young alternated months, with each of them covering household costs every other month. two always status. the Tug. led joint tax returns with a "married" filing (Tr. Trans. at 979.) making extra (Tr. Trans. at 975; 998.) Young did most of the cooking, and freezing it for (Tr. Trans. at 925.) se weeks when he was on He also the cl and all childcare work for the two weeks a month when he was off the Tug. (Tr. Trans. at 925; 926; 963.) including othing and Nicholas's ses, s equipment, were all paid for by 52 Young. (Tr. Trans. at 924.) Young also payed for household expenses such as groceries, clothing for Nicholas and restaurant dinners both on credit cards and with cash. (Tr. Trans. at 977.) Prior to Young's death, Nicholas was on Moran's health insurance policy. (Tr. Trans. at 965.) Young's received through Moran included a 401(k) pension contributions from the company. 1435.) retirement account and (Tr. Trans. at 965; Additionally, Avril was eligi benefits through the Moran policy. surance to rece health care (Tr. Trans. at 1487.) Young's adult daughter Sheila may have been eligible to receive those bene ts, as well. (Tr. Trans. at 1487.) lowing Young's death, no one in his family was eligible to receive those benefits any longer. (Tr. Trans. at 965; 1462; 1487.) Young had no expens at 976; 1438.) personal habits. Before Young moved to the ted States, he sent money back to Guyana to help support Nicholas. 952.) (Tr. Trans. (Tr. Trans. at The amount varied, but was usually a few hundred dollars r month. daughter's (Tr. Trans. at 952.) Also, because of their llectual disabilities, both Youngs financially supported Sheila. (Tr. Trans. at 911; 959; 989.) 53 y sent between two and f hundred dollars to Sheila every month. Trans. at 912; 959; 990.) sca (Tr. a MoneyGram, They sent the funds ing the receipt once they had confirmed that the money had arrived Guyana. (Tr. Trans. at 960.) Young also sent Sheila household goods, clothing, non-perishable foods and other necess ies. (Tr. Trans. at 911; 912; 925; 990.) clothing for his granddaughter, as well. Following Young's Young bought (Tr. Trans. at 925.) h, and with ila living in United States, Avril has taken on sole responsibility for supporting Shei ,who currently lives on Calloway Street, and for the care of Sheila's four-year old daughter. 983.) (Tr. Trans. at Avril also has sole responsibility for Nicholas's care. (Id. ) Claimant's expert Craig Moore, Ph. D., was a chaired faculty member of for over 30 ("Dr. Moore") University of Massachusetts rs, where he taught economics, statistics and finance and has published extensively in the fields of econometric modeling and statistics. He was re (Tr. Trans. at 1427 ient of numerous awards, including a un 8. ) rsity chancellor's award for his research and was an entirely credible witness. (Tr. Trans. at 1429.) 54 Dr. Moore calculated that had continued to work until age 70, t lived and economic losses incurred as a result of his death would be at least $692,235. at 1440.) He used the age of 70 in cause (a) a Moran corporate representative testif their late 60s (and at (Tr. Trans. khands work into st one was 70); previously in less labor fie (b) Young had worked and thus had an established work hist r areas; and (c) of the demographic shift of 1s living longer and, thus, working longer. (Tr. Trans. at 1436; 1484.) Dr. Moore also calculated the value of se ces provided by a typical working father in a rson household between the ages of 59, Young's age when , and age 75. (Tr. Trans. at 1442.) ed for lost household services The figure that Dr. Moore calcu t 261,6.) was $80,280. lived beyond age 75, the loss of household s ces Also, account such as at 1442.) higher. would (Tr. Trans. at 1443.) sehold services figure did not ta s of into actual work that Young provided to his household, re I cooking I shopping and cleaning. (Tr. Trans. gures that Dr. Moore calculated were 55 r discounted to present value based on the United States Department of Treasury bond rates as of November 2011. Trans. at 1439i 1443.) (Tr. Had he used bond rates applicable at the time of t a l , the economic losses would have been higher. (Tr. Trans. at 1439; 1443.) Moran's economic expert, Thomas ("Dr. Fitzgerald H ), tzgerald, Ph.D., did not provide any mathematical calculations or include any description of the methodology he used in calculating his economic loss figure. 1647; 1654.) Further, (Tr. Trans. at did not "indicate what [the] deduction [for personal consumption] would have been" and did not object to Dr. Moore's personal consumption calculation. (Id. ) Dr. Fitzgerald's calculations assumed that Young maintained two households and also calculated lost support that omitted the that Young had sole custody of his minor child and assumed that Nicholas had health care benefits through his step-mother and therefore attributed no pecuniary value to the loss of Moran's health care benefits. (Tr. Trans. at 1638.) Additionally, he employed a non-existent Treasury bond rate when reducing the economic loss to present value. 1666-1667.) (Tr. Trans. at Accordingly, Claimant's expert calculations are adopted as more credible and reliable. 56 Conclusions of Law The facts establish both required elements of liability in t s case. rst, aimant has established that Moran is liable under both the general marit law for unseawothiness and for negligence under the Jones Act. Moran had Second, iled to prove a lack privity or knowledge of the fault that lIed Young and should, therefore, not be exonerated from or limited in its liability under 46 U.S.C. § 30505. I. nder General Maritime Law Unseaworthiness Has Been U Established A. The Applicable Standard The United States Supreme Court has transformed the "warranty of seaworthiness into a strict liability obligation." Gilmore & Black, supra, at 384, 386; see also Miles v. Apex Marine Corp., 498 U.S. 19, 25 (1990). A shipowner "owes an absolute and non-delegable duty to seamen its vessel to provide a seaworthy ship. obligation to provi . properly aboard though it has no an accident free vessel, the shipowner does have a duty to furnish a vessel and appurtenances reasonably fit for their intended use." Pellegrino v. A. H. Bull 57 S. S. Co., 309 F. Supp. 839, 842 (S.D.N.Y. 1969) omit "The standard is not per ). (citations ion, but reasonable tness." Pellegrino, 309 F. Supp. at 842. less liable for an unseaworthy t and irrespective of the intervening ne A shipowner lS "irrespective of fault i of crew members." 1es, 498 U.S. at 25. "A vessel's condition of unseaworthiness might arise from any number of circumstances. her appurtenances in dis Her ir, her crew unfit. men assigned to perform a The number of task might be insufficient." ., Usner v. Luckenbach Overseas A failure of a shipowner to r might be defective, 400 U.S. 494, 517 18 (1971). ement adequate training and policies also renders a vessel unseaworthy. Bonefont v. Val Tankships, 136 F.3d 137, 1998WL 3029, *5 (5th Cir. Jan. 9, 1998) ("A finding that . crew was inadequate or ill-tra for the task they were assigned represents a classic e of unseaworthiness"); see Harrington v. Atlantic Sounding Co., Inc. --- F. Supp. 2d 2013) , 2 0 13 WL 94 8 15 , * 7 ( E . D . N . Y . , 7, (finding Jones Act negligence and general mari t unseaworthiness re employer "provided no ruct law or training to its crew as to how best to perform [marit task [at hand]. Sea Wolf ."); see also In re Complaint 58 Marine Towing & Transp., Inc., 2007) (same). A shipowner 2007 WL 3340931 (S.D.N.Y. Nov. 6, 11 thus be liable if it failed "to provide an adequate training program for the crew" and that failure "proximately contributed to t Carriers, Inc. "incident. Hercules v. Claimant State of Fla., Dep't of Transp., F.2d 1558, 1565-66 (11th Cir. 1985) i see also Sea Wolf, 768 2007 WL 3340931, *2. Lack of Training and Procedures Has B. Unsea worthiness Been Established As the facts found above establish, Moran failed to adequately implement any procedures or guidelines that would provide its crew with the requisite training, s 11 and knowledge to safely perform a swing maneuver, operate the capstan or handle towlines. Sea Wolf, 2007 WL 3340931, *2 (holding that a shipowner's failure to provide an adequate training program for its crew constitut general maritime law). In liability under ct, Moran issued no polic s as to line-handling whatsoever, including ongoing training or standards for handling a line under stra did not p capstan, de a safe work Additionally, Moran ronment in which to handle the forcing Young to operate in a danger zone. failures proximately contributed to Young's death. 59 These Moran also failed to prov safety written policies or regarding the swing maneuver as required the ISM RCP. respect Moran adheres to r ISM and the RCP, whi y require that "the company should establish procedures, plans and instructions, including checklists as appropriate, r key shipboard rsonnel" and "establi of use winches." documented procedures (Tr. Trans. at 400; Exhibit 399.) handling is arguably capstan is a type of winch, and 1 rtant "shipboard most De ite y rations concerning the sa ration." scribing to these sa (Tr. Trans. at 605.) requirements, Moran not have any written guidelines, instructions or procedures soever for line handling du rations. ng swing maneuvers or (Tr. Trans. at 1398.) Moran did not have a risk assessment for a swing maneuver or handling lines ssure, or safety s its Port Advisories or sa crews to dedicate t (Id. ) instructions with re r r capstan operations any of y meetings, or require its ins during the safety meetings to discuss or practice the swing maneuver or capstan r strain. tan rations for lines tionally, Moran's OPPM contains no ct to line handling or the swing 60 maneuver. (Tr. Trans. at 1406 (there is "nothing in the OPPM about the swing maneuver.").) dents involving the capstan and line-handling were foreseeable. Moran had knowledge of at least seven incidents s employees were injured during ior to Young's death where capstan operations. (Tr. Trans. at 1419 1420.) Moran also had knowledge of a 2005 accident in which a deckhand from another tugboat company, K-Sea, crushed in a capstan aboard the tug Davis Sea while handling lines. (Id. ) Despite this knowledge, and despite safety requirements, Moran did not issue any Port Advisory or change in any way its policies or procedures for how line-handling tas conducted. including swing maneuver, were See Hall v. E.I. Du Pont de Nemours & Co., Supp. 353 (E.D.N.Y. 1972) (threshold test of the applicability balance of probabilities, but of reasonable care "is not of t of t 345 F. existence of some probability of sufficient moment to induce action to avoid it on t (Tr. Trans. at 1420-1421.) result of navi part of a reasonable mind."); Young's death was thus not the ional errors or one t negligence, as Moran posits, but a consequence of Moran's failure to ensure adequate procedures for handling a line under strain, which had been documented as potentially fatally dangerous. 61 In addition, because Moran had no guidelines or established procedures regarding the swing maneuver, Moran failed to instruct its crew as to the importance of communicating the "allwith the right rudder. st" before placing load on the line (Tr. Trans. at 713; 1412.) As testified to by Claimants' experts, it is essential to have "pos ive communications" throughout the entire swing maneuver because deckhands are working with lines under stra be secure before the maneuver can proceed. 713; 715.) ,and the line must (Tr. Trans. at 642; Otherwise the gear could slip out and subject crewmembers on ck to tal hazards. (Tr. Trans. at 632; 643.) Allen testified instead that based on his years of work and training at Moran, that he believed the capstan would always "hold the load." (Tr. Trans. at 116.) ght rudder before he received the consequences of instituting the "all- st" from Young. 3 He thus did not consider To the contrary, in this instance, 3 These facts also preclude Moran's contention that the "sudden emergency doctrine" was at and relieves Allen and Moran of liability. The "sudden emergency doctrine" applies "only to circumstances where an actor is confronted by a sudden and unforeseen occurrence not of the actor's own making . . . [andl does not apply to situation[s] where :] the defendant [' should reasonably have ant and been prepared to deal with the situation with which [he] was confronted." Krynski v. Chase, 707 F. Supp. 2d 318,325 iE.D.N.Y. 2009) (quotations omitted) (emphasis added). Here, Allen turning too far left and being forced to put in right rudder to correct the Tug and from swinging past the intended course was of his "own making." See id. In addition, Allen should have reasonably been aware, and Moran had a duty to train its , that under these conditions, putting in 62 the physics and calculations comported with the descriptions from the fact witnesses establish that, to a reasonable degree of certainty, the towline pulled off the capstan as a result of Allen putting in right rudder to check the left swing before getting the "all-fast" from Young and before the capstan was secure. (Tr. Trans. at 327.) Moran's failure to institute these policies and safety precautions, and Allen's subsequent failure 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 controller, creating a "danger zone" in which Young was forced to operate. A vessel is unseaworthy if its 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. (E.D.N.Y. Jan. The Joachim Hendrik Fisser, (1959)); Oxley v. City of New York, Buckley 358 923 F.2d 22, 25 9, u.s. (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 right 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 of the potential consequences of putting in right rudder before the "all-fast." See Sea Wolf, 2007 WL 3340931, *2 (holding that a shipowner's failure to provide an adequate training program for its crew constituted liability under general mari time law). 63 1991) insuf ("A ship is considered to be unseaworthy when it is ciently or defectively equipped."). The Tug's capstan controller was locat only 36 inches from the capstan and positioned in such a location as to create a "danger zone" between the control tt where deckhands had to work. Exhibit 384, photos 3, 6.) r, capstan and H (Tr. Trans. at 328; Trial OSHA stat that this positioning forced the deckhand to "operate[] an electrically powered capstan that had no guarding to prevent the employee from being pulled into the nip point." (Exhibit 167.) Moran had the authority and control over the equipment of the Tug to create a sa r working environment, but had not done so at the time of Young's dea (Tr. Trans. at 1412.) On other tugs, including those owned by Moran, the distance between the capstan controller and the capstan was significantly more than 36 inches, averaging up to six or seven feet away, which created a safe space for deckhands to operate in. at 558-61.) (Tr. Trans. On the Tug, in contrast, the controller location forced Young to work when tying or untying close proximity to the capstan, even towline off the h-bitt, placing him dangerously near the nip point, where 64 was ultimately ensnared. 4 (Tr. Trans. at 328; 336.) Moran's failure to place its equipment appropriately thus also directly contributed to Young's death. Because of Moran's deficiencies as found above, the Tug was rendered unseaworthy and Moran is strictly liable under general maritime law for Young's death and the resulting damages. II. Negligence Under the Jones Act Has Been Established A. The Applicable Standard In order to prevail on a Jones Act claim, § 46 u.s.c. 30104, a plaintiff must prove by a preponderance of evidence (1) that the decedent was acting in the course of his employment (2) that the defendant was decedent's employer (3) that the 4Claimant's experts, Glenn R. Hibbard ("Hibbard") and Richard Bates ("Bates"), both testified as to the critical importance 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 required the use of two men operating during a swing maneuver this testimony is discounted. It is worth noting, though, that in these particular circumstance, the combination of the danger zone that Young was forced to operate in, and the lack of a second deckhand to operate the capstan controller and act as a safety observer, did proximately contribute to Young's death. With a second deckhand present, Young would not have had to operate near the nip point where the towline came 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 ._-----------_._----- ----- fendant was negligent and (4) that the defendant's negligence cedent's injury. caused 703 F. Supp. 2d 437, Inc., Scoran v. Overseas Shipholding Grp., 446 (S.D.N.Y. 2010). "The employer's fundamental duty under the Jones Act is to provide its seaman with a reasonably safe place to work." Thomas J. Schoenbaum, Admiral ty and Maritime Law, § 621 (5th ed.) (" Schoenba um") . "Regarding causation, under the Jones Act, an employer is Ii if employer negligence played any part, even the to its emplo slightest, in producing the i are sought." (1957) Second Circuit " s adopt Pac. R.R. CO., which damages 352 U.S. 500, 506 (internal citations omitted) . this relaxed burden, often referred atherweight" standard. R.R., 196 F.3d 402 Inc., ury or death See Rogers v. Mo. (emphasis in original) to as Ie See Williams v. Long Island (2d Cir. 1999); Borges v. Seabulk Int'l, 456 F. Supp. 2d 387, 390 (D. Conn. 2006) ("the standard of proof for causation when asserting negligence under the Jones Act is relaxed, sometimes termed 'featherweight.'"); CSV Transp., (af Inc. v. McBride, 131 S. Ct. 2630, 2644 rming t (2011) t a defendant caused or contribut to an injury "if [its] negligence played a part-no matter how small-in bringing about the injury.") B. Moran was both Direct the Jones Act (quotations omitted). and Vicariously Negli 66 t under The facts demonstrate Moran was at fault under s Act's "featherweight" st of sa , both for its absence training, guidelines, connect with line-handling and negli es or procedures in of its employees. car sly Moran's inadequate training only contr sa to the unseaworthiness of t the resulting ty procedures not Tug and its crew, but also constituted negligence under the Jones Act. Harrington v. Atlantic Sounding Co., Inc., (E.D.N.Y. January 7, 2013) employer 2013 WL 94815, at *7 (finding Jones Act igence where no instruction or training to s crew as to the [maritime] task [at hand] how best to Sea Wolf Marine TOTtling also In re a 2007 WL 3340931 (S.D.N.Y. Nov. 6, 2007). t Tra & A marit or training to its crew as to how to best per task [at hand]." .ff); its failure to "provide directly negli see ., Inc., employer is instruction rm t [maritime] on v. Atlantic Sounding Co., Inc., Ha 2013 WL 94815, at *7 See (E.D.N.Y. Jan. 7, 2013). Moran was directly re e for but failed to guidelines, policies, s, or ongoing tra As to safely handle 1 s r pressure, 67 as to how including conduct a a capstan. ng maneuver and appropriately handli Section I; B. Moran's omissions in this re supra rd were inconsistent with industry standards and violated the company's duty of care to s employees. (See Tr. Trans. at 632; 713 (Bates and Hibbard establishing the absolute necessity of receiving "all fast" before coming right ensuring sa training, policies and guidelines for the swing maneuver).) Additionally, Moran did not modify locat of the capstan controller, despite clear safety concerns, or require that tug rator receive an "all fast" from the deckhand before introduc with handl the rudder, de lines under strain. ite dangers associated Moran's negligence in failing to ensure a safe work environment or provide adequate traini of cont s employees on these matters, as established, directly buted to Young's death. See supra Section I; B.; see also Schoenbaum ("The employer's fundamental duty under the Jones Act is to provide its seaman with a reasonably safe place to work.") . Moran is also acts its oyee, cariously liable for t len. negl In a "Jones Act context employer may be vicariously 1 for its employee's 68 . an igence under the doct ne of respondeat negligence occur the accident. or so long as in the course of employment" at t Bee Hercules V. 566, 571 (5th Cir. 2012) lling Co., LLC, (7th Cir.2005). were acting and, Inc., t There is no ions 413 F.3d 628, e that both Young and the course of t to further the 691 F.3d (internal quotation marks and ci omitted) i see also Sobieski v. 632 time of ir employment and in order erests of Moran at t time of the swing maneuver. Allen both swung too far right, and introduced ri the naIl-fast" from Young. r before rece with the descr and calculations compo witnesses establish t t, to a reasonable capstan as a res the towline pulled off in right rudder to k fast" from Young and ens the towl ions from the fact ree of certa y, t of Allen putt getting the "all that the capstan was secure. (Tr. Allen's combined errors rectly result rapid pulling off of the towlinei ure of Young Trans. at 327.) in left swing be The physics ani and the subs pulled off with fatal crushing of Young as the t force. 69 len's own Because these errors were the result of negligence, as well as the inadequate training Moran, Moran is liable under the s inadequate training and unsafe polic ovi h s, d by rectly for its vicariously for Allen's resulting negligence. III. Limitation of Liability Has Not Been Established A. The Applicable Standard 1 Limitation of li y is available only if a causing the loss occurred shipowner establishes without the owner's y or knowledge. "The determination of 46 U.S.C. § 30505(b). r a shipowner may limit liability [] involves a two-step analysis: (1) a determination of what acts of negligence or unseaworthiness caused the casualty and (2) whether the sh r knowledge or privity of these acts." Schoenbaum, § 15-6; see In re Complaint of Messina, 119, 126 7 (2d r. 2009). 574 F.3d To sustain its burden, Moran "must show how the loss occurred, together with its lack of pri or knowl of loss , a If it cannot show how fendant must exhaust all the possibilit as to each it was without the requisite and show knowl asserted cause. " Terra ana v. McAlinden Const. CO., 70 ty to s, ty 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); 2002 WL 32348827 (W.O. Wis. Jan 31, 2002) Oil Spill by the Amoco Cadiz, 1992)) In re SkipperLinder Indus., (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. ly "within the owner's privity./I Messina, Simila 574 F.3d at y, "the failure of a ship's master to exercise diligence in selecting, training, or supervising crew members whose [acts or omissions] contribute to an accident is proper ground to deny limitation of liability." Potomac Tran v. Ogden Marine, Inc., ., Inc. 909 F.2d 42, 46 (2d Cir. 1990). B. Moran has not Met its Burden of Proving Limitation of abili Moran has not met its burden of proving that limitation of liability is appropriate in this action. To contrary, Claimant has sufficiently established Moran's privity or knowledge. Pet ioner has alleged any condition, de notice "Moran had no notice of or accident that placed them on or 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 handling lines. ckhand death on tug Davis Sea while (Tr. Trans. at 1419-1420.) Additionally, Moran's Vice President, Keyes, testified that several times 72 Moran employees were inju while working near the an, that "it can be dangerous to work around the capstan,U and the company was aware of the procedures and guidelines meetings to ensure sa y. ortance of sseminating safety ough its OPPM and ongoing safety (Tr. Trans. at 1414 15.) adheres to the ISM and the Rep, which re Moran ctively require that "the company should establish procedures, plans and instructions, including checklists as appropr shipboard operat s concern the safety of the personnel u and "establish documented procedures for (Tr. Trans. at 400; Exhibit 399.) w e, for key use of . . winches. u The capstan is a type of and line-handling is a "key shipboard operation. u (Tr. Trans. at 605.) Despite this knowledge of past accidents and despite clear awareness of the sa and Rep, 5 Moran ty requirements impo by the ISM iled to issue any written guidelines, trainings, or instructions whatsoever for line handling of any kind. (Tr. Trans. at 1398.) Further, Moran knew or should known from its experience as an operator of tug boats the ef OSHA also issued Moran a formal citation as to the location of the capstan controller. The citation 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 for in the Act, or if contested, unless this Citation is affirmed the Review Corr~ission or Court." (Exhibit 67.) 73 of swinging Tug to the right before the "all fast" signal had been given and the capstan was secure, and the sa concerns ass close to ated with placing the capstan controller too capstan. procedures, Moran could have implemented such (Tr. Trans. at 1409-10), but tituted no job hazard analyses, risk assessments, or a y r Young's death. communicate to an training until (Tr. Trans. at 1403-04.) screw Moran not importance of receiving the "all fast" before a tug was swung back right or a line was subjected to pressure, or attempt to move the location of the capstan control r to ensure a sa Young's death. r work environment until after See Dover Ba 266, 275 (S. D. N. Y. 2009) Co. voyage. ") i is unseaworthy due to fective or unsa see also Marcus v. at the start of the Energy Trans. 196784, at *2 (S.D.N.Y. July 31, 1992) regulations render ernal Corp., 19 WL ("A violation of safety ship unseaworthy and if such unseaworthiness was the proximate cause of injur 642 F. Supp. 2d (an employer "may not limit his liability under the Act if the sh equipment which was v. Tug Crow, Plaintiff's it would also render the Defendant shipowner liable") tations omitted) . 74 Moran thus failed to adequately "train[] or supervis[e]" its crew or create a sa to 1 environment with respect Potomac Transp., Inc. handling and the swing maneuver. v. Ogden Ma I Inc., 909 F.2d 42, failure of a ship's master to exe training, or s 46 (2d r. 1990) ("the se diligence in selecting, sing crew members whose [acts or omiss contribute to an accident is proper ground to deny 1 liability."). This Young's death, ilure, which was a prox s limitation of liabil See id; see also Hercules Ca that rational y inappropriate. ers, 768 F.2d at 1576 77 (finding it failed to train its crew"); Cameron Boat Rentals, Inc., (W.D. La. 1988) cause of igence of the crew "became t sibility of the owner Complaint ation of 683 F. Supp. 577, 585 (finding operational errors "are imputable to owner where they are the natural consequence of the owner's unwritten policies."). As found above, also re ished by t record Moran's contention that Young's death resulted from his negligence ssing the wrong button on the capstan controller causing it to IV. facts as es rate in reverse. Damages Have Been Established 75 1 Young, as the estate representative, is entitled to recover on behalf of all beneficiaries for t of her husband under wrong Jones Act and general marit both for the losses suffered as a result of his s survivor claims. See Miles, 1 death law, as well as 498 U.S. at 26, 30. Under the Jones Act, beneficiaries include the surviving spouse and children; ral maritime law extends this class to include other dependent relatives. Act"), refer See 46 U.S.C. App. ng to FELA, 45 U.S.C. death beneficiar ¢ § 688 51 (FELA wrongful § s are "the surviving widow or husband and children of such employee"); Schoenbaum, 8-3 (bene § an action for wrongful death under the general mar 1 ude the surviving spouse, children, s). relat ("Jones aries of ime law rents and dependent In this case, then, the benefi aries are Young's widow Avril Young, his minor son Nicholas Young, his adult daughter Sheila Young, and Young's granddaughter, Kaitlyn Young, who were all financially dependent on Young at the t death. A. The Applicable Standard 76 of his Under the Jones Act as well as ral maritime law, Avril Young can recover for all pecuniary 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 damages for Young's conscious pain and suffering. See De Centeno v. Gulf Fleet Crews, Inc., Cir. 1986) 798 F.2d 138, 141 (5th ("Recoverable items include loss of support from [decedent's] past and future earnings; loss of [decedent's] household services; loss of parental nurture and dance of his minor children until the age of majority; and recovery for [decedent's] predeath pain and suf ring"). Courts in the Southern District of New York have looked to state law cases. marit WL 413918 gui nce on damages determination in See Bachir v. Transoceanic Cable Ship Co., 2002 (S.D.N.Y. Mar. 15, 2002) ermining damages award); see numerous New York state cases in also Scala v. Moore McCormack Cir. 1993) ewed awa have es, Inc., (a longshoreman case cit of Appeals stated t _ _ _ _ _ _ __ (2d by Bachir, where the Court in other cases involving similar injuries" 77 ~ 985 F.2d 680, 684 t, in assessing a damages award, "courts and cited New York State case law). ¢ ¢ ¢ _ _ _ _ _ _ _ M. _ _ _ _ _ _ _ _ _ (where the court examines In assessing damages, the fact-finder should ascertain the past and future impact of the injury by examining (1) the nature, extent, and duration of the injury; (2) the plaintiff's pain, discomfort, suffering, and anxiety; and (3) any lost earnings. 2 M. Nor ("Norris"). s, The Law of Seamen § 697 (3d ed.1970) Damages must be supported by the facts established in the record and cannot be speculative. See Saleeby v. Kingsway Tankers, Inc., 531 F. Supp. 879, 888 B. (D.C.N.Y. 1981); Pecuniary Loss Has Been Established As found above, pecun ry loss has been established. 1. Pre-Death Pain and Suffering A maritime wrongful death claimant is ent recover for the conscious pa led to and suffering a decedent experienced prior to death so long as there is some that the decedent had, at some level, an awareness of what he was going through. To recover this category of damages, no particular period of consciousness is necessary. 5.5. Paros, 461 F. Supp. 219 (S.D. Tx. 1978) for suffering for only the "f See Hinson v. (allowing recovery est seconds."); see also 78 McDougald v. Garber, 73 N. Y.2d 246, 255 (1989) (a fact finder cannot be required to "sort out vary degrees of cognition and determine at what level a particular deprivation can be appreciated. n ). suf Ins , a aim for conscious pain and ring requires a claimant to injured party" lly sent only proof that the some level of cognitive awareness rl following the injury.n Sanchez v. Ci 97 A.D.3d of New York, 501, 506 (1st Dep't 2012)i see also McDougald, 73 N.Y.2d at 255 (fact finder d only have to consider whether a person had "some level of awareness in 0 (internal quotations omi aintiff to cover n ) ). dence of cons r for ous pain and suf ring may be stantiated by medical records, even in the absence of medical testimony to support the claim. A.D.2d 345, 345 (2d Dep't 1988). Sand and Gravel Co., Consciousness may also be Cook v. Ross Island 626 F.2d 746 (9th Cir. 1980). evidence of pre-death cons admitted, "the Dowling v. Dowling, 138 factual circumstances. presumed in certa rt ous pain and suf Once ring has been gree of pain" becomes "only a factor to be considered in determining the amount of damages, not whe ges should be awarded at all. York, n Williams v. City 71 A.D.3d 1135, 1137 38 (2d Dep't 2010). 79 r New Claimant has sufficiently est and suf ring in this case. lished conscious pain All three physicians agreed that Young experienced some period of conscious in and suffering; the discrepancy was only as to how long that pain occurred. Though Dr. Thanning testified that Young went into a neurogenic coma caused by the pain from his crushing injuries, causing loss of consciousness within ten seconds, there is no medical or physical support for this theory. (Tr. Trans. at 1539-52.) To the contrary, Dr. Zhang and Dr. Bollinger in credible testimony as found above both relied on concrete physical evidence and medical journals in concluding that, based on the petechial hemorrhages, the cation of the traumatic injuries and the absence of blood low the torso, Young was conscious for more than two minutes. (Zhang Dep. Tr. at 56-59; Tr. Trans. at 825 26; 829.) It is further "clearly inferable that [Young], caught by the winch which was grinding him to death, suf intense pain while also confronting the certainty of death." Strehle v. United States, 860 F. Supp. 136 (S.D.N.Y. 1994). Claimant has urged that an award of $2 million for the period of time that Young was consciously suffering is consistent with jury verdicts in similar cases. 80 See, e.g., McIntyre v. United States, 2006) (awa 447 F. Supp. 2d 54, 118-19 (D. Mass. ing $3,000,000 for three minutes of conscious in and suffering from gunshot wound); Hackert v. First Alert, 2006 WL 23352330 (N.D.N.Y. Aug. 11, 2006), aff'd 271 (2d Cir. 2008) al ("cons . Appx. 31 ring the 35% comparative negligence cation,U an appropriate judgment would conscious pain and suffering of [de "$650,000 the ndant one] and $1.3 million for the conscious pain and suffering of [defendant two],U both whom suffered for short periods). Moran, to the contrary, posits that analogous precedent shows that an award $35,000 to $100,000 is appropriate. United States, awarded $50,000 See, e.g., 1e v. St 860 F. Supp. 136 (S.D.N.Y. 1994) cedent was conscious pain and suffering not period of intense pain could not have lasted long); Golden between that the 1ko v. aska 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 1 ted); Cook v. Ross Island Sand & Gravel, 626 F.2d 746 (9th Cir. 1980) (awa for two and a half minutes of conscious suffering in a drowning death reduced from $100,000 to $35,000). New York courts, damages turn, have awarded a range of conscious pain and suffe 81 ng of short durations s lar to that of Young's. Givens v. Rochester City Sch. Dist., 294 A.D.2d 898, 899 (N.Y. App. Div. 4th Dep't 2002) million verdict reduced to $300,000 where decedent suf than one hour a ($1 red less er 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, 658 (N.Y. App. Div. Dep't 1996) $500,000 where decedent suf ( $1. 4 Ilion award reduced to massive uries 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 't 1991) between fi (N.Y.App. Div. (court awarded $250, 000 where decedent suffered een minutes and one hour from horrendous after car collision); Walker v. New York Ci uries Transit Auth ty, 130 A .D.2d 442, 443 (N.Y.App. Div. 1st Dep't 1987) ($1 million award reduction to $600,000 affirmed where de suf very br red fly and his level of consciousness was unknown after he was struck by a tra Conscious subjective to the ). in and fering are by definition feror and result from the totality of the circumstances, the duration of the experience, the inj 82 es and their effect, the inevitability of the outcome, the shock of the 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., Strehle v. U.S., 1994) 860 F. Supp. 136, 140 (S.D.N.Y. ("The problem of fixing a monetary award is exacerbated by the fact that pain 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.; other grounds, 64 F.3d 781, 788 (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 the award of particular amount, as opposed to some very different amount, in compensation for a of ."). rticular quantum With the relevant precedents, the cons ions in mind, an and ring while being c of $750,000 s and these r Young's pain to death is ate. 2. Lost Past and Future Financial S Household Se ces Lost Avril Young may recover on behalf of all estate ar bene of the wrongful death of Young. a re classifi n.4 s for the financial harm that they have suffered as as "lost future support." That loss is See Cook, 626 F.2d at 784 (explaining that lost support "includes all the financ I contributions that the decedent would have made to his dependents had actions Lost future support appl r both the Jones Act v. Sea Drill McCrann v. 1986) lived."). (basic s general maritime Corp., 523 F.2d 793, 794 n.3 Law (5th Cir. 1975); ted States Lines, Inc., 803 F.2d 771, 773 (2d Cir. involved in calculating damage awa for lost wages of Jones Act claimant is to require tort feasor to "put his vict in the same economic sition that he would have occupied had he not been injured"); Sal Inc., 531 F. . 879, 888 (S.D.N.Y.1981) 84 v. Kingsway (Jones Act cla , who is success re earnings) 1 in establishing li 1 y is entitled to lost (citing Calcagni v. Hudson Waterways Corp., 603 F.2d 1049 (2d Cir.1979)). Petitioner concedes the s i rt damages, but maintains lity of loss of Claimant has failed to y establish non-speculat damages. See Shu-Tao Lin v. McDonnell Douglas Corp., 574 F. Supp. 1407, 1414 (S.D.N.Y. 1983). To the contrary, Cla , as established through its rt Dr. Moore, has e ent concrete evidence to ish loss of support Lost future s s in this case. is typically calculated ba on gross future earnings (including benefits) with a deduction personal consumption and e.g., Howard v. Crystal Cir. 1994) reduced to present value. See, ses, Inc., 41 F.3d 527, 530 (9th ("After calculating the total amount of damages to be awarded the appellant r her loss of [decedent's] support and services, the district court reduced those fi reflect . sonal consumption."); Kni Dep't of Navy, 802 F. Supp. 965, 977 (S.D. I (calculating "va his predicted li of future support" as . to s v. U.S. Gov't 2011) 's income over expectancy less his personal consumption); 85 Shu-Tao v. McDonnell Douglas Corp., 574 F. Supp. 1407, 1415 'd in part, rev'd in part, 742 F.2d 45 (2d (S.D.N.Y. 1983) a Cir. 1984) ss of support measured as future income rsonal consumption) (reversed on other grounds). ea New York are not reduced by taxes. Unit by Lost future See Estevez v. tes, 74 F. Supp. 2d 305, 307 (S.D.N.Y. 1999) (where New York State damages law was applied to action brought under ral statute, court held New York state law requires that earni t s not be reduced by taxes for any defendant) . The amount of expert's opi on and t account certain sonal consumption is based on an use of statistical studies taking into ctors such as household size, household income s, as most households do not keep and the age of minor actual records of what portions of their incomes are spent on what types of expenses. rt, Dr. Fitzgerald, did not Moran's explain his methodology, i no and ignored significant personal det Is in compiling his report, including Young's work his 50.) (Tr. Trans. at 1649 rrect Dr. Fitzgerald also his calculations, including (1) assuming two households; child; (2) ignor calculations, 1 assumptions in Young maintained Young's sole custody of his minor (3) failing to account care of 86 's daughter Sheila; (4) not calculating the loss of Moran's health care benefits; (5) incorrectly reducing the economic loss of tax liability and (6) ying a non-existent Treasury bond rate when reducing c loss to present value. (Tr. Trans. at 1625; 1636-38; 1665-66.) In contrast, Dr. Moore's testimony, qualifications and methodol ogy 6 were highly Exhibit 251, at 6.) (Tr. Trans. at 1442-45; Ie. Dr. Moore's final calculation in November of 2011 totals $692,235 st support, assuming that Young r worked to the age of seventy. .) his figure does not incl st Dr. Moore explains that sion income that Young would have received from retirement rough his life expectancy, or any lost compensation ehold services, benefits or earnings. (Id. ) lost For household se calculated damages at $80,280. ces, Dr. Moore .) Claimant therefore asserts that the total included in Dr. Moore's report for lost support should supplement to account for childcare services, cooking, household work, the Dr. Moore's report was based on reviewing mult factors, i Young's (1) tax returns; (2) credit card statements; (3) account deposits, including of his wife; (4) earning statements from Moran; (5) work history, including personnel file from Moran; and (6) oyee benefits at Moran; as well as the deposition of (Exhibit 251.) 87 dependency of Young's adult daughter job ion, and the lost va ila, the possibility of of fle e spending amounts, totaling in an award of $900,000 for economic loss. at 1442; 1485; 1456; 1486; 1439.) does not es However, Claimant lish a methodology for calculating the dependency of Young's daughter Sheila or Young's se (See Tr. ces. tional household r, Young's potential job promotion is speculat Damages are thus awarded instead based on Dr. Moore's document household se calculations, totaling $80,280 for lost ces (see Exhibit 251, at 6) $692,235 for lost future s 3. Loss of Parental Guidance, Nature s compensate a chi Nurture r the loss of nurture are inte to r the deprivation of parental gui support and training; these damages are available r both the Jones Act and general maritime law. can Transp. Co., In Matter of ver 1997 WL 382055, at *1 (E.D. La. July 8, 1997); see also Moore-McCormack , Inc. v. Richardson, 295 F.2d 583, 593 n. 9a (2d Cir. 1961), cert. denied, 368 U.S. 989 (1962). "An award for loss of nurture does not extend to compensation for grief resulting from loss of the warm and loving 88 It is a more limited and more mea parental relationsh award for loss of va instruction, training Co. v. The "Ming ces se the nature of Red Star Towing & guidance." ntll, 552 F. Supp. 367, 377 The facts with re e n (S.D.N.Y. 1982). to the relationship between Young and his son having been found and 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.) His father's death has af Nicholas, who has since had his rst fight at school, stopped ng on his baseball team, and f c culty. (Tr. Trans. at 920; 1011-1012.) $2,000,000 for loss of s u rienced significant Claimant rental care and guidance. See, e.g., Campbell v. Diguglielmo, 148 F. Supp. 2d 269 (S.D.N.Y. 2001) loss of of $1,500,000 for (court found that an awa rental care and guidance did not ate materially what would be reasonable compensation); Paccione v. 682 N.Y.S.2d 442, 443-44 an award for loss of parental (reduc per (N.Y. i Health and to $1,500,000 per child); Ga tals, 230 A.D.2d 766 (2d 89 Div. 1998) of $2,500,000 a v. New York City ' t 1996) (reducing judgment loss of parental guidance from $1,000,000 to $750,000) . Moran has asserted Nicholas's and guidance must be limited to reflect fact, not live with s for nurture t Nicholas did s father for most of his childhood, and that t s should be 1 ted to six years (i.e. until Nicholas reaches age of eighteen). See Zilko v. Golden Alaska Seafoods, Inc., 2004 Wash. App. LEXIS 2205 (Ct. App. Wa. 2005) awarded $15,000 r year where cost of social wor se to ce was pre s children). $5,000 to $20,000 D. Y. as to the rs and teachers providing equ lent and devotion ces as to the character, t (court the decedent According to Moran, an award of between r year is more appropriate. , 835 F. Supp. 274 A/S v. See, e.g., (E.D. Va. 1993) ($12,000 per year where father was "exemp1 ary u and " per ); Brown v. United States, Mass. 1985) ($5,000 Towing & Transp. Co., per lko, 2004 Wa ionally fit"); r . App. LEXIS 2205 ($15,000 615 F. Supp. 391, 400 (D. ar in death of 552 F. Supp. at 378 ar) . 90 sherman); Red Star (approximately $14,000 Based on analogous precedent Young's relationship with for remaining six on the extent of s son, damages of $15,000 r year, rs of Nicholas's adolescence, are appropriate. 4. Loss of Society The rties dif r as to whether loss of society is appropriate under general marit law and in Jones Act cases. However, the Supreme Court stated in Miles v. Marine, 498 U.S. 19, 30 (1990) that Congress's statutory language in DOSHA, 1 ting "recoverab damages in wrong death s s to 'pecuniary loss sustained by the persons for whose benefit the s t is brought,'" foreclosed recovery for non-pecuniary loss, such as loss of society, in a general maritime action for wrongful death. Id. at 31 (quoting 46 U. S. C. App. The Supreme Court further held § 762) there is "no recovery for loss of society in a Jones Act wrongful death action," regardless of whether the action is a result of negligence or unseaworth S.7 As such, no damages loss of society will Claimant's cited precedent establishes only that the Jones Act allows causes of action +or negl ; not that loss of s lS an ate for these act~ons. (Claimant Memorandum of Law, "Mem. of Law"; at 4 44.) Even a liberal of the Jones Act does not as u by the Claimant overcome the Court's ruling on this issue. 91 be awarded. e, Inc., , e.g., Senator Linie Gmbh & Co. Kg v. Sunway 921 F. 145, 169 (2d Cir. 2002) loss of society damages are not appli causes of action under the general rna (recognizing in wrongful time law or the Jones Act); Stepski v. M!V NORASIA ALYA, 2010 WL 6501649, at *10 (S.D.N.Y. Jan. 14, 2010) loss of s (Grant summary judgment on issue of ety damages where collision at issue took outside the territorial waters of t governed by Miles, the general marit loss of s state of New York was law and therefore, pursuant to ral maritime law with damages ace s not provide [ ). 5. Punitive Damages ive damages may only be awarded where a 's conduct is intentional, wanton and rec de const gross negl livanch v. Cel Inc., 171 F. Supp. 2d 241 (S.D.N.Y. 2001). that the accident was caus Cla by the premature ess, or Cruises, asserts tiation of the final turn of the swing maneuver before the "all-fast" was given and from the unsafe placement of the equ Cla does not conte maneuver was pe on the Tug. and the facts do not establish that with gross negl 92 or willful misconduct, or that the placement of the equipment by Moran involved such intentional or wanton conduct. Given the lack of evidence or argument by Claimant that would provide a legally sufficient basis for such an award, Claimant's punitive damage claim is dismissed. 6. Prejudgment Interest Although the allowance of prejudgment 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); O'Donnell Transportation Co. v. City of New York, F.2d 92, 94-95 215 (2d Cir. 1954), it should be granted in the absence of exceptional circumstances. See, e.g., Co. v. Sabine Towing & Transp. Co., Federal Ins. 783 F.2d 347, 352 n.4 ("In this Circuit, prejudgment interest will be denied in admiralty cases only under extraordinary circumstances"); F.2d 699, 702 The Wright, (2d Cir. 1940); Moore-McCormack Lines, Inc. Richardson, 295 F.2d 583, 592-93 368 u.s. 989 (1962). 109 v. (2 Cir. 1961), cert. denied, Moran has not established any special circumstance why prejudgment interest should not be applied. 93 Prejudgment interest in this case is calculated using New York state law. Complaint of Dammers & Vanderheide & Scheepvaart Maats Christina B.V., 1988) 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 relating to the limitation of liability.") . Avril Young as the single claimant 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 these proceedings and pursued her action in state court. Here, prejudgment interest is appropriate as to all claims, whether under the Jones Act or general maritime law. Reading & Bates Drilling Co., ("We hold, 750 F.2d 487, See Williams v. 491 (5th Cir. 1985) 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 the jury, the allowance of 94 prejudgment interest is thin the scretion of t trial court even if there is not a finding of unseaworthiness"); Webb v. c, Inc., 2012 WL 7800851, at *33 (S.D. Ill. 2012) TECO Ba (same); Benson v. Diamond Offshore lling, Inc., 2011 WL 3794908, at *9 (M.D. La. Aug. 26, 2011) (same). Under New York law, the rate of prejudgment interest is set at nine percent per annum. Claimant is re N.Y. C.P.L.R. § 5004. entitled to prejudgment interest at an annual rate of 9% measured from the date of Young's death, December 27, 2009. mUltiplying The dollar amount is calculated by total amount of past damages by nine percent, then dividing that period by 365 (representing the year) and multiplying that figure by the number of da December 27, 2009 and the date of judgment. ys of a between See Webb, 2012 WL 780851, at *34 n.13. CONCLUSION Based upon all 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 orde - New York, NY November I' , 2013 U.S.D.J. 96

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