Luke Bonura, Jr., Cross-Appellant v. Sea Land Service, Inc., Cross-Appellee, Atlantic & Gulfstevedores, Inc., Intervenor
505 F.2d 665
5th Cir.
1975
Check Treatment

*2 GEWIN, Before AINSWORTH Judges. GEE, Circuit Judge: GEE, Circuit Bonura, longshoreman, in- Luke jured when Maiden Creek aboard S/S during loading cargo operations he fell in December of 1969. at New Orleans against Inc. Service, This suit Sea Land), (Sea Maiden owners of Creek, predicated both an action and unseaworthiness (c) (b) of 29 vessel, subsections doubt that followed. The trial court found had been violated. 1504.32 Maiden Creek C.F.R. as a matter law that § unseaworthy and that her unsea- has held Court While this injuries. worthiness caused ship inquiry or not into whether of liabil- He therefore directed verdict usually question to be against ity Land and submitted fact, Neveaux v. *3 decided the trier damages jury. The the issue of jury Steamship Central Gulf $175,000 returned a verdict of for City Morales receiving Bonura. After verdict Galveston, trial court indicated that it intended to 1961), aff’d, grant a new trial unless Bonura would recog (1962), also has $50,000 jury’s remit award. Bon- Safety and violations of nized that consented, judgment ura $125,000 and a final Longshoring Regulations Health judg- was entered. From this unseaworthy ship as a matter of make a appealed, ment has and Bon- Steamship Carey Lykes Bros. law. cross-appealed. ura has 1194 fn. Co., It fol 1972), therein. cited Sea Land contends cases that correctly judge (1) directing directs in lows a erred bility,” (2) a that verdict of “lia- failing when he a verdict of unseaworthiness to submit to the particular that all jury case an finds in a instruction on the issue Bon- strongly purported comparative so negligence, facts and inferences ura’s overwhelmingly submitting (3) a violation jury towards an is- of those wages. of the sections sue of of one or more regulations loss of On his men reasonable could cross-appeal, Bonura maintains disagree judge violation existed. that a abused his discretion in or- Boeing Shipman, dering majority a remittitur. A Co. v. of this Court concludes that court com- error, judg- no mitted reversible and its to affirm would hestitate is, therefore, ment affirmed. solely on its determination question a viola The district that there was the S/S (c), was Maiden Creek was tion of subsection since as a dispute as to holding matter some the evidence of law. This was based working dif whether two crews its conclusion that were men reasonable could not differ ferent levels in Maiden Creek’s hatch. about whether work- ing However, all the ev conditions aboard a detailed review of the time of presented compels Bonura’s accident idence the conclusion violated two subsec- required tions of the that Bonura to work at a then-current version of Safety spot Regulations edge and Health at the of a hatch sec —either Longshoring.1 cargo Specifically, atop piled tion or —which eight high court believed that more than and where no there could be feet no prevent injury falling employee, 1. The accident occurred December providing equal protection following 1969. At other means time the section of existing Safety Regulations Long- under and Health circumstances. (c) gangs working shoring two in the in effect as When 29 C.F.R. § 1504.- levels, safety 32: same hatch on different securely rigged cargo temporary net shall be fastened § 1504.32 Stowed cargo prevent landing platforms fall- so men or * * * (a) ing. (Labor) (b) edge has been modified since 29 C.F.R. When of a hatch section or of cargo high un- section remained stowed more than 8 feet is so however, changed. is, exposed presents danger § now C.F.R. of an employee falling, edge guarded 1918.32. shall be safety strength adequate net of protective safety rigged.2 net had been to Sea As Land’s first conten provide concerning wages, net Since failure loss of future simple Although under such circumstances is clear vio- is a answer. working (b), longshoreman lation of the Maiden Bonura was subsection unseaworthy. trial, adequate at the Creek was time of the submis base complains See Land it was wage sion of an instruction on loss entitled to instruction on the is earning capacity. no There is doubt purported comparative sue of Bonura’s significant that Bonura suffered a hear negligence. Court, majority A of this ing ranges. frequency certain loss agreement however, is with the dis There was also his fall present no evidence was trict court that affected his sense of balance. Both of would, construed most fa ed which even reasonably these infirmities as vorably compara Land, indicate to Sea making sumed have the *4 to of effect negligence part of tive on the Mr. Bon longshore 'Luke Bonura a less desirable future, wages in the ura would lose addition, man. In Mr. Bonura testified tive would have been it con that since the accident had there been fusing, erroneous, as well days pain on which a in neck and his trial court to have an instruc submitted prevented reporting back him from to jury. subject on that v. to Urti work. Corp., Transport 479 F.2d Commercial (5th 1973). 766 Sea second contention Land’s appeal wages on Land’s contention final on future of Sea loss issue difficulty. presents erred in submit- more Third is that The “ fu- ting jury of of issue that, loss Circuit has held . . . once wages. have presented recovery The issue ture evidence is and Land, according sought submitted, jury to Sea earnings, for future lost First, Land Sea appro two reasons. is entitled to receive evidence guidance Bon- argues, priate no evidence that mathematical on wages reducing the future. earnings in urs would lose method of lost future specif- they more Second, present worth, Land continues Sea to if are act ra to guidance given no conjecture ically, tionally and ‘not mere ” guess.’ would by way expert of Ballantine v. Central Rail rationally 540, Jersey, to estimate road enable of New 460 F.2d 544 (3rd loss future denied, of present Cir.), 879, value of Bonura’s cert. 409 U.S. 93 according so, any. to 133, wages, if This 34 L.Ed.2d 133 nowas evidence Land, City Wildwood, because also of Russell v. 428 F. Sea expectancy, nor concerning 1970) Haddigan (3rd life work 2d v. 1176 (3rd evidence con- actuarial Harkins, of cerning possible However, value to the Third Circuit seems meth- making accepted expert, mathematical ac or the stand either loss alone including inter- concerning present of realistic use ods, tuarial evidence gross reducing rates, to loss of value of future loss mathematical est reducing com- guidance does not present value. method of gross prerequisite present plain of the substance value to loss itself. instruction submission loss exactly dispute how regained hospital, to said was some 2. There conciousness tes- fell, light witness called each feet. of the Bonura fell about six far eight The overwhelming feet. least he fell that Mr. Bonura evidence tified presented eight indicate only existence fell than feet fact more eight require report feet than less fell did Mr. Bonura medical report liability medical to found submit the issue to statement recounting histo- Bonura, Boeing Shipman, supra. jury. relates just after ry doctor his accident wages jury. Sixth, er to condition denial of a motion Seventh rejected Eighth for a consent to a remit have new Circuits all 474, They Schiedt, approach. this have not titur. Dimick v. conceded 296, application present of the 79 L.Ed. 603 This that “the 55 S.Ct. beyond ordering the un- of a re worth rule is Court has derstanding lay capabilities most under circumstances is mittitur such serving juries,” persons Ballantine, subject appellate spite review 543, rather, supra, but, to, 460 F.2d at have the fact has been consented presumed jurors capable enough given provided the consent was un enough protest. and aware of modern economics der United States 1160.96 gross present Land, 910, (5th to be able to reduce loss Acres of 432 F.2d intelligently they Indemnity Steinberg 1970); value once have In been Cir. perform America, instructed to function. F.2d Co. of North surance Chesapeake Railway 1966) Heater v. Co., 266, and Ohio 3 The standard review, however, strict; and the 1974); Duncan v. Fran if St. Louis-San will reversed Ry. Co., Cir.), party opposed cisco the remittitur shows part cert. discretion on the an abuse of (1973); Baynum judge. v. Olin Mathieson Gorsalitz Ry. Chesapeake Co., Cir.), and Ohio Chemical Pennsyl 660-661 denied, 407 U.S. *5 McKinley, vania Railroad Co. v. 288 F. (1972); Steinberg, su L.Ed.2d 807 32 1961). Believing 262, (6th Scott, 2d 265 Engineering Corp. Cir. pra; Delta ability we the of the modern (5th 1963), as do in cert. de 11 322 F.2d align jury, American we ourselves with L. nied, 12 377 majority the spoken of the circuits which have for this The reason Ed.2d 176 question. power this hasten to We standard strict is note, however, we believe that a a of new condition denial decidedly practice present the better remittitur founded to a consent expert jury with either mathemati grant for exces- power new trial a its aid or power cal actuarial tables latter verdict. This of siveness reducing gross future lost grave in its task of earnings only is, itself, for reviewable present Noth to their value. v. Free- Brents abuse of discretion. ing opinion as be read dis our Service, Inc., 448 F.2d Field man’s Oil couraging attorneys from or the court (5th v. Bethle- Tucker 601 guidance affording Corp., F.2d 445 390 hem Steel respect this as is reasonable. We hold Altec, Inc., Manning 1971). See only mathemati actuarial and that such A 127, 130-133 F.2d prerequi cal evidence is not an absolute remitti- as to judge’s discretion district of an instruction site to submission Seventh is circumscribed tur wages when on lost not substitute He must Amendment: presented. been damages such loss has of the for judgment of therefore, have, jury. cross-appeal Bonura on his require may remission complains $50,000 remittitur verdict reduce would which protest a sum to under he consented which is rea- award maximum price denial of below the trial court’s Jen- the evidence. sonably supported trial. new Land’s motion Engi- & Aquatic Contractors rule, long there can kins v. has neers, date, scarcely late doubt at this Mathieson Olin pow- 1971); Gorsalitz court has the district federal 203.06, j[ at 721- ap- Moore, disagree Practice Federal with us 3. Other circuits 1973) therein. cases cited generally (2d pealability ed. J. of remittiturs. Corp., Chemical trial, 1046- the ebb and flow of the and it will 1970), presumed modified, amount which he chosen the amount will re- jury’s In exam duce verdict the “maximum problem ining validity possible” party opposed award unless the suggested remittitur, however, the first to the remittitur to credible question greater is not whether the amount re- support evidence which would Rather, recovery. mitted is correct. the first question judge whether In the case before us deci ordering any abused his discretion re- determined, sion we have after review answering ques- mittitur at all. this evidence, that under these stand tion, appellate will court find an ards did court not abuse its dis appears abuse discretion when it requiring cretion in a remittitur. Nor jury’s original verdict was found have we credible evidence which clearly possible within the universe of support more than an award of supported by awards the evi- $125,000. Manning Inc., supra. Altec, dence. jury's clearly If the verdict is not within Affirmed. ambit, then the court has not demanding abused discretion its some Judge GEE, (dissenting): Circuit remittitur in return for the denial of motion for a new trial. Once it has por- respectfully I dissent been determined that the trial court has majority opinion which holds demanding abused its discretion in correctly an in- denied Sea Land remittitur, appellate some then the negli- comparative on Bonura’s struction must determine whether agree wholeheartedly amount gence. I While the award which after re- Transport remains holding of Urti v. with mittitur reflects maximum award Commercial support which the evidence will *6 comparative 1973) that a Cir. merely represents whether it submitted when be issue should not complete of evidence opinion absence proper of what injured part negligence an on the award should have At been. gov- case party, that I do not feel given deference will be to the trial Urti under consideration. the case erns he, court’s determination since by case; here, “no-evidence” a classic appellate court, present during was fashion, being was in this lowered 4. The facts TJrti are : follows causing breasting broke shift line manila 15, 1966, On November while aboard plain- pontoon. position The port Haifa, S.S. Tamara Guilden in the striking his forearm tiff fell forward Israel, Angel Urti, plaintiff, or- was against or one of the metal bridle shoulder paint dered to draft numbers on the stern at the wire cables. TJrti of the vessel. He lowered over was rigged selected, provided or Mr. had not Urti pontoon. side of the vessel The bo- equipment any nor Neither he used. pon- sun, operating winch, lowered the any visible defects had noticed the bosun signal. bring at toon Urti’s To himself Although job he manila line. vessel, to closer used a two-inch Urti usually perform assigned done to was was breasting to both line was attached men, by reason to assume there was no U-bolt, two pontoon pad-eye, and to a know that to or had reason that Urti knew side the vessel. attached to the working hazard. undue alone created pontoon supported four was one-inch gave ring that Mr. Urti no evidence There was a bridle or lines attached to wire improper bosun which to the instructions to winch. was in turn attached might strain plaintiff excessive have caused that he The bosun told the although short, breasting it turned shifting lines, line. more thus slacken the wire working causing under what breasting weight that Urti out proved line and conditions, pull was no naturally be unsafe to This would become taut. pontoon ship. As the closer Urti contrast, ample there was might evidence to tions so that these conditions support finding can, also, of some on corrected under certain cir part of cumstances, Bonura. negligence. be considered Mroz v. Dravo According testimony, his own Mr. (3rd 1970); DuBose v. Mat Bonura aware before he fell of the Navigation Co., son 403 F.2d 875 working fact he in an area 1968); see also Rivera v. Rederi safety where nets should have been Nordstjernan, (1st A/B rigged. He was also aware of the fact denied, Cir.), cert. 409 U.S. rigged. they had not been Since 34 L.Ed.2d 128 But see longshoreman, experienced was jury Lines, Inc., Rivera v. Farrell reasonably could have concluded (2nd Cir.), or, least, that he have known must (1973) have should known that the absence which would restrict this doctrine to un working nets made his condi- open safe conditions which are not they tions more hazardous than obvious. properly would have been had a net been Given the state of the law as outlined rigged. undisputed Yet that Bon- above, plain I believe that working ura neither nor demand- ceased jury question compara- as to Bonura’s requested ed even a net be or negligence. Specifically, tive I believe falling. rigged protect him from should have been allowed held fact This Court has considering whether, to decide all the Safety violation of the there has been a case, facts of this a reasonable man with Longshoring Regulations for Health experience longshoring flagrant preclude a one, does even a would have continued to work without a benefiting shipowner doc from the having rigged safety net or would negligence. comparative Dene trine of superiors of have to inform his failed Enterprise Corp., Shipping nea demanded, the known hazard and Denny 1973); v. Ju F.2d 549 requested, that it be eliminated. least Yugo Plov., goslavenska Kotor Oceanska net, of a ironic that the same want slavia, sides, equally apparent want both Maria, Phipps Santa inculpate S/S at once Manning 1969) ; M/V plaintiff- exculpate defendant —(cid:127) Road, F.2d 603 beyond possibility reasonable both working in an have held further disagreement. Bonura admits that a violation made unsafe area regulations have been there net should knew the *7 negligence, if itself obviously was not. The condition knowledge viola worker has holding, and that be- dangerous. Our dangerous condition and of the rea- requires low, a determination Phipps g., See, e. created. whether his differ men could not sonable continuing 616; supra, Maria, v. Santa condi- under these to work Enterprise Shipping Denenea v. request that as a tions, so Moreover, it is supra, precautions own mandated prudent. observed, in generally accepted him failure known to so. do cannot superiors condi- I form job He doing to do. was ordered helped the condi- to create evidence that appropriate- question the potential no reason to had aware or that he was tions simply his orders. ness of ignored them. He hazards