When a fishing vessel backed over a natural gas pipeline that was supposed to have been buried, a fireball swept the ship killing eleven of its fourteen crew. Her captain, Darreyl Wayne Gough, survived by fleeing the pilot house and jumping overboard. He sued the pipeline owner, NGP, under general maritime law. A Beaumont jury awarded Captain Gough $2 million, but assessed to him 35 percent of the fault for the accident. NGP challenges the damage аward which rested in substantial part on emotional distress. We are persuaded that Captain Gough suffered a sufficient physical impact but order a remittitur of damages. We also affirm the finding of contributory fault, finding the evidence sufficient to support it, rejecting the Captain’s claim that an earlier finding in a limitation proceeding that NGP was solely at fault was binding.
I
On October 3, 1989, Zapata Haynie Corporation’s steamer F/V Northumberland was operating near Sabine Pass. Darreyl Wayne Gough captained the vessel as it fished for menhaden roughly one-half mile from the Texas coast. The Captain had previously fished in the same area of the coast during the 1988 and 1989 fishing seasons. He did not consult navigational charts on October 3; he claimed to know that coastline “like the back of [his] hand.”
Late that afternoon, when the Northum-berland deployed its purse boats, radar showed that it was one-half mile from shore. Captain Gough’s cousin Mac Gough was in charge of the ship while Captain Gough was in a purse boat. Mac Gough thought that the Northumberland was floating freely, not touching bottom, because the ship moved without hindrance. He admitted that it was possible for the ship to skim through the soft mud bottom of Sabine Flats without being felt on deck. After the set, Captain Gough returned to the pilot house of the Northum-berland. The ship’s bow was pointed toward the shore. Around 5:45 p.m., Captain Gough began.backing the ship away from the beach at what Mac Gough described as moderate speed. All three survivors, Captain Gough, Mac Gough, and crew member Arthur Jackson, testified that the ship did not touch bottom.
After backing three hundred feet, the Nor-thumberland suddenly stopped. There was an immense explosion. The ship struck and ruptured NGP’s submerged sixteen-inch diameter gas pipeline. Within seconds, a fireball swept the ship from stern tо bow. The Captain and Mac Gough escaped the pilot house, jumped overboard, and swam away from the heat and flames. Spotter helicopters dropped rafts and tried to assist survivors. Captain Gough tried to assist one injured seaman who slipped away and drowned. Eleven crew members died; Mae Gough and Jackson were severely burned. All three survivors were pulled from the water and airlifted to a Beaumont hospital by helicоpter.
Captain Gough was in the hospital for only two days, but soon began experiencing nightmares, flashbacks, and depression. Psychiatrists and psychologists diagnosed post-trau-matie stress disorder, and Captain Gough began therapy. One expert testified that post-traumatic stress disorder typically requires two to three years of treatment. Captain Gough’s therapist testified that the demands of various lawsuits continue to aggravate Captain Gough’s condition and delay recovery. She was uncertain how long it would take before Captain Gough could func *765 tion adequately, and noted that the memories of this event will remain the rest of his life.
Captain Gough claimed that as a result of the post-traumatic stress disorder, he was unable to return to work as a mariner. He now earns his living, for less pay, as a carpenter. An economist testified that this diminished earning capacity resulted in a total pecuniary loss of $559,401.
The NGP pipeline was unmarked. The Corps of Engineers permit issued to NGP in 1972 required that the pipeline be buried three feet under the seabed and that NGP maintain it in accordance with the plans. Three days after the accident a diver inspected the pipeline and found it exposed for more than fifty feet between the point at which the Northumberland sank and the shore; it was exposed for more than three hundred feet fаrther out to sea. In places, nearly half of the pipe’s diameter was unburied.
NGP elicited testimony suggesting that Captain Gough’s handling of the ship could have led to the allision. On a previous occasion, the Northumberland’s anchor had gotten hung up on a submerged five-inch pipeline after the ship was anchored overnight. The anchor picked up the pipeline, but came free after it was lowered again. Mac Gough testified that Captain Gough occasionally got into the mud, rather than always maintaining a margin between the keel and bottom. The Northumberland was not equipped with a fathometer. Coastline charts feature a warning concerning submerged pipelines. National Ocean Service chart 11342 states: “Caution ... Additional uncharted submarine oil and gas pipelines and submarine cables may exist within the area of this chart. Mariners should use caution when anchoring, dragging оr trawling.” Captain Gough admitted that he was familiar with this warning.
The six-person jury deliberated for eighty-two minutes. In a note to District Judge Fisher, the jury asked whether it could award Captain Gough more than he asked for. 1 It then found both NGP and Captain Gough negligent and responsible for the accident. The jury assigned them 65 and 35 percent of the fault, respectively. The verdict then awarded Captain Gough $2,000,000 in total damages. 2
II
Captain Gough’s physical injuries had little compensable value. He presented evidence of economic loss, but the principal basis on which the Captain sought damages was the emotional distress associated with post-trau-matie stress disorder. NGP contends that the maritime law does not permit recovery for purely emotional damages. We think that this assertion is too broad.
Beyond question, purely emotional injuries will be compensated when maritime plaintiffs satisfy the “physical injury or impact rule.”
Plaisance v. Texaco, Inc.,
The impact or injury rule is an arbitrarily stated rule with important functions. One purpose is “to provide courts with an objective means of ensuring that the alleged mental injury is not feigned.”
Hagerty,
NGP misplaces its reliance on
Gaston v. Flowers Transp.,
Gaston
dismissed as dictum the suggestion in
Hagerty
that emotional distress recovery might occur without physical injury or impact.
Id.
at 819 (quoting
Hagerty,
NGP emphasizes that Gaston described the plaintiffs bruised elbow as “only [a] trivial physical injury.” Insisting that Captain Gough’s physical injuries are no more substantial, NGP maintains that Gaston’s denial of recovery controls this case. NGP understates the evidence of Captain Gough’s injuries and the nature of his experience. Captain Gough was located in the pilot house when the steamer collided with NGP’s pipeline. Within seconds, flames spread towards Captain Gough. He could feel the heat, and immediately after he left the-pilot house fire engulfеd it. To avoid the flames, Captain Gough had to jump overboard into the Gulf of Mexico. Even in the water, the heat was unbearable, and Captain Gough inhaled fumes from the fire. He also ingested salt water, as another victim of the disaster pulled him underwater. Besides being submerged in the ocean, Captain Gough suffered multiple contusions. Finally, some testimony suggests that Captain Gough suffered from minor burns, although no medical record confirmed these opiniоns.
Keeping in mind its purpose, these facts meet the impact test. Emotional distress damages were awarded to a seaman on this basis in
Petition of United States,
The grounding of the B & G resulted in a substantial jolt to Roberts and he was thrown into the water as the boat capsized. Both these impacts were caused by the negligence of the [Coast Guard] and were sufficient to satisfy the test applied by jurisdictions following the impact rule.
Id. at 268.
Our precedent also supports the conclusion that Captain Gough has suffered the requisite impact. In
Hagerty,
the seaman was drenched with toxic and carcinogenic chemicals. At the time, he felt dizziness, leg cramps, and stinging in his extrеmities. As a result of this accident, he developed cancer-phobia. We held that drenching with chemicals constituted a sufficient impact to support the recovery of emotional distress damages.
Hagerty,
Unlike Gaston, this accident caused Captain Gough far more harm than a fall to the deck and a bruise. Captain Gough suffered both a physical imрact and tangible physical injuries as a foreseeable result of NGP’s negligence.
Captain Gough argued that if the impact rule was not satisfied, he could nonetheless recover for emotional distress because he was within the zone of danger. We have repeatedly declined to adopt or preclude the zone of danger theory.
See Gaston,
866 F.2d
*767
at 820;
Plaisance v. Texaco, Inc.,
Ill
NGP also complains that the jury verdict must be set aside as excessive. The district court denied NGP’s motion for new trial, which contended that the award of $2,000,000 was beyond any reasonable bound.
The jury’s assessment of damages is heavily weighted against appellate reconsideration. We do not disturb a jury verdict for excessiveness except on the strongest of showings. Even so, “[t]he sky is simply not the limit for jury verdicts.”
Caldarera v. Eastern Airlines, Inc.,
We will consider any quantifiable evidence of pecuniary loss. The principal basis of relief, however, was emotional distress — an inherently subjective matter. Our reassessment cannot be entirely supported by rational analysis, and must depend upon experience and judgment.
See id.; Osbum v. Anchor Laboratories, Inc.,
In this case, the jury’s general damage award of $2,000,000 included the following elements: lost past and future earnings, pain and suffering, mental disability and mental anguish. An economist valued Captain Gough’s lost earnings at $559,401. NGP concedes that this much of the damage аward is unassailable. Captain Gough’s physical injuries resolved within days of the accident. While these injuries were real and tangible, we conclude that their compensable value is negligible. Thus, the remainder of the verdict ($1,444,599) must be supported by the evidence of mental disability and mental anguish.
Captain Gough narrowly escaped a harrowing disaster with minor physical injuries. He suffers, however, from on-going emotional distress in the form of post-traumatic stress disorder. The disorder typically resolves in two to three years, but experts were unable to predict the resolution of Captain Gough’s condition. Testimony suggests its perpetuation by Captain Gough’s involvement in lawsuits arising from the accident.
Other cases show virtually no satisfying analogues to Captain Gough’s injuries. Many post-traumatic stress disorder patients also suffered severe physical injuries; others were themselves neither injured nor endangered. Caрtain Gough falls between these extremes. Perhaps the best guidepost involves the survivor of a gas-leak explosion that destroyed a house in Illinois.
DeYoung v. Alpha Constr. Co.,
We must rely upon our judgment to determine the maximum amount the jury could properly have awarded.
See Caldarera,
IV
The district court denied Captain Gough’s motion for a judgment notwithstanding the jury’s verdict that he was 35 percent at fault. We review this decision under the familiar standard of
Boeing Co. v. Shipman,
The jury heard that the depth of the water at spots around the Northumberland, three days after the accident and near the same time of day, measured eight and nine feet. The steamer’s draft was described as nine or ten feet. Captain Gough did not employ a depth meter. NGP argued that Captain Gough acted unreasonably by either dragging through the mud bottom or failing to maintain a margin of safety under thе keel of his ship.
Captain Gough denies touching bottom. All three survivors testified to floating freely, although Mac Gough said that the ship could move through soft mud without hindrance. The pilot of the spotter plane did not see a trail of mud to indicate dragging. Captain Gough also defended his conduct by asserting that all submerged pipelines were assumed to be safely buried beneath the seabed. He knew that there were pipelines in the vicinity, but assumed that they could not be hit. He also initially stated that he had never heard of any ship hitting a pipeline, despite fishing in the area for thirteen seasons. Finally, Captain Gough maintains that the non-use of charts was causally unrelated because the NGP pipeline was not accurately charted.
Nonetheless, some evidence supports the reasonable conclusion that caution was in order. Charts of the coastline warned of uncharted рipelines and advised that “Mariners should use caution when anchoring, dragging or trawling.” On cross-examination, Captain Gough admitted knowing that the Zapata Haynie vessel Sea Chief had struck a pipeline in Mississippi waters. His own ship had lifted a five-inch pipeline from the bottom with its anchor. Captain Gough replaced it on the seabed and therefore knew that it was not buried. There is ample evidence by which a reasonable factfinder could conclude that Captain Gough’s conduct contributed to this tragedy.
Captain Gough also attacks the contributory fault finding by contending that he had no duty to avoid the pipeline. Starting with the premise that NGP’s unburied pipeline created an obstacle to navigation, Captain Gough concludes that the priority of navigation demands that NGP bear sole responsibility for the allision. “[Plaintiff] is incorrect, however, to assert that this right of navigation is wholly unfetterеd: when a mariner knows of obstructions to navigation, he must avoid them.”
Pennzoil Producing Co. v. Offshore Express, Inc.,
V
Captain Gough also maintains that the question of his contributory negligence should not have been submitted to the jury. He seeks to bind NGP with a district court finding from the Western District of Louisiana that NGP is solely responsible for the accident. Captain Gough’s employer, Zapata Haynie, filed a limitation action in that court regarding the Northumberland. Captain Gough did not join that action. NGP and the
*769
representatives of other victims of the accident contested Zapata’s right to limitation or exoneration. In particular, NGP attempted to show that Captain Gough’s errors contributed to the accident. Following a three-week bench trial, District Judge Walter found that NGP’s negligence was the sole cause of the accident. On appeal, we held that this finding was not clearly erroneous.
Zapata Haynie Corp. v. Arthur,
While Captain Gough was not a party to the previous action, NGP was and so Captain Gough now invokes the doctrine of issue preclusion, also known as offensive collateral estoppel. Captain Gough complains that the jury’s finding of fault is inconsistent with Judge Walter’s finding. Captain Gough did not, however, assert collateral estoppel below, even though Judge Walter ruled seven months before Captain Gough’s trial. 5 Captain Gough mentioned Judge Walter’s findings in his pretrial Memorandum of Authorities. Captain Gough did not, however, request that those findings be given preclusive effect. Nor did he mention Judge Walter’s findings in his motion for judgment notwithstanding the verdict of contributory fault. 6
The offensive use of collateral estoppel is permitted, but limited by judicial discretion.
Parklane Hosiery Co. v. Shore,
The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where ... for other rеasons, the application of offensive estop-pel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel.
Parklane,
NGP contends that Captain Gough could have joined the limitation action. Captain Gough responds that participation would have been self-defeating because, as master of the Northumberland, evidence suggesting Zapata Haynie’s fault also suggested his own fault. NGP maintains that Captain Gough did not join the previous action because he settled with the ship owner. The record does not indicate when that settlement occurred. The uncertainty of this issue reflects the critical problem with Captain Gough’s position — he failed to raise it below by drawing attention to issue preclusion.
Captain Gough objects to the resulting inconsistent fact findings, but collateral estop-pel would not eliminate the incоnsistent decisions.
See
Jack Ratliff,
Offensive Collateral Estoppel and the Option Effect,
67 Texas L.Rev.. 63, 100 (1988). They happen — and once inconsistent decisions have been reached, none may be given preclusive effect.
Parklane,
We are not persuaded that the district court committed reversible error in submitting the issue of Captain Gough’s fault to the jury. Captain Gough failed to address the issue as one of collateral estoppel in the district court. Even reviewing it as such, there is no showing that the court abused its discretion in declining to give Judge Walter’s findings preclusive effect. In short, Captain Gough has failed to show an injustice.
In a related argument, Captain Gough asserts that affirming the jury’s finding of contributory fault would violate our rule that one
*770
panel cannot overturn anothеr. This assertion is meritless. In
Zapata Haynie,
we held that Judge Walter’s finding that NGP was solely responsible for the accident was not clearly erroneous.
We affirm the district court in all respects except we remand with instruction to grant a new trial unless plaintiff accepts the remitti-tur we order today.
AFFIRMED in part and REMANDED.
Notes
. Judge Fisher replied that it could award no more for lost earnings than the evidence established, but could award whatеver amount necessary to justly compensate Captain Gough for his pain and suffering or mental anguish.
. The jury did not find gross negligence, precluding the award of punitive damages.
.We note that the en banc court also referred to the rule in disjunctive terms: physical injury
or
impact.
Plaisance,
. Such verdicts have been variously described: so gross or inordinately large as to be contrary to right reason; shocking the judicial conscience; clearly exceeding that amоunt that any reasonable person could feel claimant is entitled to; or so exaggerated as to indicate bias, passion, prejudice, corruption, or other improper motive.
See Caldarera,
. Judge Walter's judgment had preclusive effect during the pendency of its appeal.
Erebia v. Chrysler Plastic Prods. Corp.,
. At oral argument, Captain Gough contended that he objected to submitting the contributory fault issue to the jury on this basis. Captain Gough failed to get this objection into the record and we may not rely upon it.