In Re: Crosby Marine Transportation L L C et al

Filing 145

REASONS FOR JUDGMENT: The parties shall submit a Judgment to the Court, approved as to form by all parties, in accordance with the above findings and conclusions within 7 days. Signed by Magistrate Judge C Michael Hill on 8/7/2015. (crt,Chicola, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CROSBY MARINE TRANSPORTATION,
LLC., ET AL

*

CIVIL NO. 13-2399

VERSUS

*

MAGISTRATE JUDGE HILL

TRITON DIVING SERVICES, LLC, ET AL *

BY CONSENT OF THE
PARTIES

REASONS FOR JUDGMENT
The non-jury trial of this case commenced on June 2, 2015 and concluded on June 8,
2015.
Findings of Fact
After due consideration of the facts and evidence which were presented by the parties
at the trial of this matter through live witnesses, exhibits and deposition testimony, and
having had the opportunity to assess the demeanor of the live witnesses, and review and
weigh the evidence, this Court hereby makes the following findings of fact and conclusions
of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, which the Court finds
and holds were established by a preponderance of the evidence.1
1.

Mark Rottinghaus (“Rottinghaus”), a Louisiana resident, was employed by
Crosby Marine Transportation, L.L.C. and Crosby Tugs, L.L.C. (“Crosby”) as

1

To the extent that any finding of fact constitutes a conclusion of law, the Court hereby adopts it
as such, and to the extent that any conclusion of law constitutes a finding of fact, the Court hereby adopts
it as such.

a deckhand and apprentice mate.
2.

Crosby is the owner and operator of the ocean tugs, M/V CROSBY
MARINER and M/V CROSBY EXPRESS.

3.

Triton Diving Services, L.L.C. (“Triton”) is the owner and operator of the dive
vessel, the M/V TRITON ACHIEVER.

4.

On May 21, 2013, Rottinghaus, a Jones Act seaman, was employed aboard the
tug, CROSBY MARINER, as a deckhand and steersman.

5.

On May 21, 2013, Jeremy Naccio (“Naccio”), who was employed by Crosby,
was piloting the M/V CROSBY EXPRESS.

6.

On May 21, 2013, Israel Delatte (“Delatte”), who was employed by Crosby,
was piloting the M/V CROSBY MARINER, an assist tug to the M/V
CROSBY EXPRESS.

7.

On May 21, 2013, the CROSBY EXPRESS was towing, on a short hawser, the
barge MARMAC 22, with the CROSBY MARINER made up on the port side
(hip) of the MARMAC 22 with soft lines as an assist vessel. (This
configuration is sometimes referred to herein as “the Crosby tow.”).

8.

The MARMAC 22 is a 250-foot long, 72-foot wide deck barge, which, on May
21, 2013, was laden with a deck cargo of scrap iron sections of a dismantled
offshore oil platform (a well jacket) that extended 40 feet over the stern of the
barge and also extended over the starboard side of the barge an unknown

2

distance.
9.

The tug CROSBY MARINER is 71.4 feet in length, with a 26.1-foot beam, a
hull depth of 9.9 feet and bears official No.: 642126.

10.

The tug CROSBY EXPRESS is 86.4 feet long, with a 28 foot beam and a hull
depth of 11 feet and bearing official No.: 1082131.

11.

Naccio testified, which the Court accepts as true, that the CROSBY
MARINER had tires attached to both sides of the vessel, making the vessel
29.1 feet wide if the tires are included.

12.

Prior to commencing the tow, Crosby had obtained an oversize tow permit
from the Coast Guard.

13.

On May 21, 2013, Charles Hempfling (“Hempfling”), who was employed by
Triton, was piloting the TRITON ACHIEVER.

14.

The TRITON ACHIEVER is a 4 point dive support vessel with a length of 195
feet, a beam of 40 feet and a depth of 14 feet, bearing official No.: 597269.

15.

In the early morning hours of Tuesday, May 21, 2013, the TRITON
ACHIEVER departed the Triton dock in Amelia, Louisiana bound for an
offshore work site to perform a riser installation job for Chevron Oil Company.
To access the Gulf of Mexico from the Intracoastal Waterway, the
ACHIEVER set a southbound course for the Gulf of Mexico through Bayou
Chene, navigable waters, inland Louisiana.

3

16.

At the same time that the TRITON ACHIEVER was proceeding southbound
in Bayou Chene, the CROSBY EXPRESS and the CROSBY MARINER with
the barge MARMAC 22 were proceeding northbound in Bayou Chene, bound
for a yard in Bayou Black, Louisiana.

17.

Bayou Chene is a natural channel with the width of approximately 325-400
feet and a dredged navigable channel approximately 15 feet in depth and
maintained by the U.S. Corps of Engineers to 150 feet in width. The actual
navigable channel at the site of the accident is wider than 150 feet.

18.

Between 2:30 a.m. and 3:00 a.m. on May 13, 2013, the TRITON ACHIEVER
was heading southbound on Bayou Chene.

19.

At the same time, the CROSBY MARINER and the CROSBY EXPRESS
were heading northbound on Bayou Chene with their tow.

20.

Hempfling detected the CROSBY MARINER/CROSBY EXPRESS on the
TRITON ACHIEVER’S automatic identification system (AIS) when the
Crosby vessels were about one and a half miles away.

21.

When the TRITON ACHIEVER was about one mile from the Crosby vessels,
Hempfling called Naccio, who was piloting the CROSBY EXPRESS.

22.

Hempfling could see on the TRITON ACHIEVER’s radar that two tugs and
a barge were approaching.

4

23.

Naccio informed Hempfling that he had a tow on a short hawser, and requested
that the vessels make a port-to-port, one-whistle, pass and Captain Hempfling
agreed.

24.

There was no radio communication by either captain about the CROSBY
MARINER being made up to the port side of the MARMAC 22. Naccio did
not inform Hempfling that the CROSBY MARINER was made upon the hip
of the MARMAC 22. Hempfling did not ask about the presence of the second
tug, the CROSBY MARINER.

25.

The two vessels approached each other to make their pass in an area of Bayou
Chene know as “The Wiggles.” This is an area that has a starboard turn,
followed by about a .5 to .6 nautical mile straightaway followed by a turn to
port (northbound).

26.

Naccio knew that the Cashman Barge Fleet was tied up, two barges abeam, on
his starboard shore, so he would have to steer to port to avoid those barges.

27.

The current of Bayou Chene at this location was north and not south. Thus,
the Crosby tow was traveling with the current.

28.

When Hempfling observed the Crosby vessels coming around the bend, he
reduced his speed from six knots to three and a half to four knots and moved
over more to starboard towards the bank. Hempfling was surprised at the size
and configuration of the Crosby tow.

5

29.

As the Crosby tow rounded the bend to starboard, the stern of the tow swung
out to port. This movement to port was caused by the speed of the tow and
increased because the Crosby tow was traveling with the current.

30.

At the time Hempfling passed the Crosby vessels and barge, the TRITON
ACHIEVER was in a water depth of about five feet and was bumping the
bottom of the channel.

31.

The TRITON ACHIEVER suddenly veered to port and struck the CROSBY
MARINER on the port bow, bounced off and then hit the MARMAC 22.

32.

The accident was caused when the TRITON ACHIEVER approached the
bank of Bayou Chene, on the vessel’s starboard side. As the channel began to
shelve (become more shallow), the water between the vessel and the bank
displaced, causing the bow of the TRITON ACHIEVER to veer suddenly to
port. This is called “banking” or “shearing”.

Additionally, the larger

displacement of the Crosby tow “sucked” the Triton vessel into the Crosby
tow, a secondary cause of the collision. Hempfling was forced close to the
bank on his starboard side to avoid the Crosby tow.
33.

At the time of the collision, the CROSBY MARINER’s speed was 6.5 knots.

34.

The collision occurred at approximately 2:50 a.m. on May 21, 2013.

35.

Screen shots from the “Captain Voyager” computer software shows that
Hempfling left the maintained channel, moving to starboard, to allow the

6

Crosby tow to pass and that the impact was outside the maintained channel,
on the TRITON ACHIEVER side of the maintained channel.
36.

The collision was severe enough to damage the CROSBY MARINER, the
TRITON ACHIEVER and the MARMAC 22, including displacing the

stuffing box at the shaft exit of the CROSBY MARINER, displacing
appliances in the galley of the CROSBY MARINER, and knocking over the
Captain’s chair on the CROSBY MARINER onto the wheelhouse deck.
37.

As the vessels approached, Rottinghaus was off watch and sleeping in his
bunk.

39.

When Delatte saw the ACHIEVER veer suddenly toward him, he sounded the
General Alarm. This woke Rottinghaus from his sleep. He grabbed his life
jacket and then the vessels collided.

40.

When the collision occurred, Rottinghaus struck his head and neck on the
frame of the bunks.

41.

Rottinghaus was dazed by the impact. It is unclear whether he actually lost
consciousness or not, but he sustained at least an altered state of consciousness
from striking his head.

42.

Rottinghaus then proceeded immediately to the wheelhouse for orders.
Rottinghaus told Delatte that he had struck his head and neck and was hurt.

7

43.

Rottinghaus also felt nauseous, and went several times to the head where he
had “dry heaves.” This fact is not supported by Delatte, who did not remember
Rottinghaus complaining of nausea. Delatte conceded he might have forgotten
that fact under the circumstances. Given the situation, the Court is not
surprised that Delatte did not remember this detail which was insignificant at
the time. The Court credits Rottinghaus’ testimony in this regard and finds it
as fact.

44.

Immediately after the May 21, 2013 collision, Rottinghaus was seen by
Crosby's company doctor, Dr. Robert Davis, at Occupational Medicine
Services, LLC. in Houma, Louisiana. Dr. Davis noted that Rottinghaus
complained of pain primarily in the right posterior neck at the base of the skull
as a result of a vessel collision. Rottinghaus reported that the impact threw
him back, causing the back of his neck to strike the edge of his bunk very hard.
Rottinghaus reported no loss of consciousness, dizziness, headache or
radicular symptoms to the right arm. Dr. Davis’ diagnosis was a contusion and
strain injury, for which he prescribed conservative measures.

45.

At the next visit on May 24, 2013, Rottinghaus complained of intensified pain
in the posterior neck and some mild intermittent tingling sensation in his right
hand. Because of Rottinghaus’ continued pain and limited range of motion,
Dr. Davis ordered an MRI.

8

46.

The MRI report of the MRI performed on May 28, 2013, noted a slight
reversal of lordosis and a 1-2 mm disc bulge at C6-C7.

Dr. Davis

recommended physical therapy.
47.

A pre-accident MRI showed no pathology at the C5-6 and C6-7 levels.

48.

On May 30, 2013, Mr. Rottinghaus was examined by Dr. Robert Franklin, a
physical medicine and rehabilitation physician. At this time, Mr. Rottinghaus
was reporting neck pain, right arm numbness and tingling, and consistent
headaches. Dr. Franklin ordered a second MRI, which was reported as
revealing a loss of normal cervical lordosis with slight kyphosis at C3-4, mild
right C5-6 facet arthrosis, and slight C6-7 and C7-Tl annular bulges. Dr.
Franklin recommended physical therapy.

49.

Rottinghaus underwent 79 physical therapy visits from June 5, 2013 through
December 30, 2013, with Scott Higgs, P.T. (“Higgs”), at Ponchatoula Therapy.
On the first visit, he complained of neck pain and tingling in the right upper
extremity. Later, he complained of migraine headaches. As of Rottinghaus’
last visit on December 30, 2013, he was still having right arm numbness,
substantially restricted cervical range of motion, and muscle spasm.
Rottinghaus attended physical therapy as scheduled. Higgs reported that
Rottinghaus was compliant, but had maximized progress in physical therapy.

9

50.

Rottinghaus began treating with Dr. George Williams, an orthopedic surgeon
with a sub-specialty in spine surgery, on July 9, 2013. Rottinghaus complained
of neck pain and right arm numbness after hitting his head on a bunk. Dr.
Williams’ diagnosis was cervical disc disease, spinal stenosis and cervical
radiculopathy.

51.

After conservative treatment consisting of physical therapy, anti-inflammatory
medications and cervical epidural steroid injections failed, Dr. Williams
referred Rottinghaus to Dr. David Weir, a neurologist and neurophysiologist,
for evaluation and a nerve conduction study.

52.

Dr. Weir diagnosed Rottinghaus with radiculopathy at the C6 region, postconcussion syndrome, frequent headaches, and cervicalgia in November 2013.
He placed Mr. Rottinghaus on headache medications (one preventative
(Zonegran) and one abortive (Maxalt)), which have provided partial relief
from the frequent and severe migraine headaches he was having as a result of
the accident and head trauma.

53.

The May 30, 2013, MRI films were reviewed at trial by Dr. Williams, who
testified that the films showed annual tears with leakage of disc material into
the midline of Rottinghaus’ axial spine and into the right neural foramen area
at the exiting nerve root, producing a chemical irritation or chemical
radiculopathy.

10

54.

On January 14, 2014, Mr. Rottinghaus underwent an EMG/Nerve Conduction
study with Dr. Weir. According Dr. Weir, the results were positive for right
C6 radiculopathy, which was consistent with Mr. Rottinghaus’ complaints of
right arm and hand numbness and tingling.

55.

Both Dr. Williams and Dr. Weir observed annular bulging and fissures (or
tears) at C5-6 and C6-7 on the MRI. Dr. Weir and Dr. Williams testified that
fissures at those levels were consistent with, and explained, Rottinghaus’
complaints of right arm and hand numbness as well as neck pain.

56.

Based on Dr. Weir’s test results and Rottinghaus’ history, Dr. Williams
diagnosed Mr. Rottinghaus with cervical radiculopathy, annular fissures,
spondylosis, and herniated discs at C5-6 and C6-7, all of which he believed to
a reasonable degree of medical certainty were caused by the May 21, 2013
incident. He recommended surgery at C5-6 and C6-7.

`

57.

On March 28, 2014, Dr. Williams performed a two-level anterior cervical
decompression, fusion and interbody spacer graft with instrumentation on
Rottinghaus’ cervical spine at C5-C6 and C6-C7.

58.

Post-surgery, Rottinghaus’ radiculopathy completely resolved and his neck
range of motion improved. Dr. Williams testified that Rottinghaus reached
maximum medical improvement on April 21, 2015.

11

59.

Dr. Williams testified that Rottinghaus was limited to light duty work. Dr.
Williams testified that Rottinghaus’ unpredictable, recurrent migraine
headaches, as well as his physical restrictions, preclude him from being able
to work as a deckhand or mate on a vessel.

60.

Dr. Williams testified that Rottinghaus’ future medical costs would include
occasional anti-inflammatory medication for his cervical condition.

61.

Prior to the accident, Rottinghaus had no neck pain, no radiculopathy and no
headaches.

62.

After the two-level fusion, Rottinghaus was neck pain-free and had no
radiculopathy.

The Court therefore concludes, and finds as fact, that

Rottinghaus’ neck pain and radiculopathy were caused by this accident and
that the surgery was made necessary by the injuries sustained by Rottinghaus
at the time of the accident.
63.

The post-accident headaches, while less frequent, have persisted for over two
years. The evidence shows that the headaches are therefore likely to be
permanent. Initially, these headaches were almost daily lasting as long as
approximately five hours. Rottinghaus is now on Zonegran and Maxalt to
control his headaches. These headaches now occur episodically,
approximately twice per month. The evidence was uncontradicted that these
medications will be required permanently to control the headaches.

12

64.

Rottinghaus has sustained short-term memory loss and frequent confusion,
particularly during conversations. This was caused by cognitive impairment
as a result of Rottinghaus sustaining post-concussion syndrome because of
this accident.

Since the accident, he has progressed to a level of

approximately 90% of his pre-accident mental capacity. Additional progress
is unlikely.
65.

Rottinghaus continues to suffer unannounced episodes of photophobia and
phonophobia, as well as the headaches.

66.

Rottinghaus can be trained to partially compensate for his loss and how to
keep up with the activities of daily living. This will increase his post-accident
wage earning capacity.

67.

Rottinghaus roomed in a house with Jessica Lang (“Lang”), her husband (a
friend of his from the military) and their children, both before and after the
accident. Lang saw Rottinghaus right after the accident; he was groggy and
wanted to go lie down. Prior to the accident, Rottinghaus never complained
about anything. After the accident, he would often go to his room and lie
down for hours. After the accident, Rottinghaus talked a lot slower than he
had before the accident.

68.

The migraine headaches that Rottinghaus has are now less frequent than they
were right after the accident, but they still occur. Lang drove Rottinghaus to

13

his physical therapy visits several times, because it was difficult for
Rottinghaus to drive after the accident – he would get groggy and have to lie
down when he got home.
69.

Many of the things that Rottinghaus and Lang’s husband did together prior to
the accident, he can no longer do. He is more forgetful, and he has to stop and
occasionally think for a second while speaking, something he did not have to
do before the accident. In the middle of a sentence, he will pause or stop for
a second, to recollect his thoughts, or sometimes completely forget what he
was saying. This did not happen before the accident.

70.

Rottinghaus no longer lived with the Langs as of the date of trial.

71.

The Court carefully observed Lang’s testimony at trial. The Court found her
to be a credible witness as she answered all questions directly and, quite
clearly, did not recognize the significance of some of her answers, nor the
significance of some of the questions which she was asked.

72.

Rottinghaus would benefit from cognitive retraining which would help him in
his daily living and would maximize his ability to return to work. Rottinghaus
will also need psychological counseling for the next two to three years.

73.

Prior to the accident, Naccio characterized Rottinghaus as a “good hand”,
energetic, and hungry to learn with a good work ethic.

14

74.

The Court found Rottinghaus to be a highly credible witness. This conclusion
results from the Court’s careful consideration of Rottinghaus’ demeanor on
the witness stand, and the way in which he answered questions both on direct
and cross-examination. As Long testified, Rottinghaus spoke slowly and often
paused when answering questions, not only on cross examination but also on
direct. Lang’s testimony was that Rottinghaus did not do this before the
accident. This verbal behavior confirms the neuropsychological deficits
revealed on the neuropsychological testing.

Additionally, the fact that

Rottinghaus told the physicians, and testified in court, that he was pain-free
after his surgery adds to his credibility.2 Finally, all of the physicians and
experts, including those retained by the defendants, testified that Rottinghaus
completely cooperated with them, exerted the maximum effort on the FCE
which was obtained by the defendants, was honest in answering their
questions and exhibited no signs of malingering. Additionally, Rottinghaus’
co-employees, as well as his supervisors, were unanimous in testifying as to
his good character and work ethic.
75.

Rottinghaus began working for Crosby at age 23. While working for Crosby,
he obtained his steersman apprentice license from the U.S. Coast Guard. He
was working towards his mate’s license. At the time of the collision, he was

2

In the Court’s experience, it is rare for a claimant to acknowledge that he is “pain-free” with a
full range of motion at trial. That was the testimony of Rottinghaus.

15

28.6 years old.
76.

At the time of the collision, Rottinghaus was earning $285 per day as an
apprentice steersman and deckhand. His annual earnings in 2012 totaled
$86,435.

His earnings in 2013 up through the date of the accident, if

annualized, total $101,000.
77.

Crosby has posted security in the amount of $3,299,063.30 with interest at 6%
annum from the date it filed its complaint.

78.

Crosby Marine and its employees were at fault in causing this accident for the
following reasons:
1.

Naccio failed to adequately describe the size of the tow and the
configuration of the tow that he was pulling when suggesting the
passing rule to Hempfling;

2.

Naccio failed to consider the narrowness of the passing area
considering the bend in the channel, the following current and the
presence of the Cashman Fleet;

3.

Naccio failed to stay as close as possible to the starboard bank while
passing the Triton vessel;

4.

Naccio failed to maintain a safe speed in the bend to starboard
considering the presence of the Cashman Fleet, the width of the
channel, the following current and the oncoming Triton vessel;

16

5.

Naccio failed to suggest safe passing rules considering the bends in the
channel, the presence of the Cashman Fleet and the following current.

79.

Triton Marine and its employees were at fault in causing this accident for the
following reasons:
1.

Hempfling failed to adequately determine the size of the oncoming
tow;

2.

Hempfling failed to identify both of the tugboats and their functions on
the oncoming tow when he first saw them on his radar and when he
talked to Naccio;

3.

Hempfling failed to stop and allow the Crosby tow to pass, particularly
once he realized the size of the Crosby tow, the bends in the channel,
the presence of the Cashman Fleet and the fact that the Crosby tow was
proceeding with the current.
Conclusions of Law

Pursuant to Federal Rule of Civil Procedure 52(a), the Court makes the following
conclusions of law:
JURISDICTION AND VENUE
1.

Rottinghaus is a resident of Baton Rouge, Louisiana.

2.

Crosby is a Louisiana limited liability corporation with its principal office
located in Galliano, Louisiana. Crosby is authorized to do, and does,

17

business within the Western District of Louisiana.
3.

Triton is a Louisiana limited liability corporation with its principal place of
business in Metairie, Louisiana. Triton is authorized to do, and does,
business within the Western District of Louisiana.

4.

Rottinghaus filed this action under pursuant to Rule 9(h) of the Federal
Rules of Civil Procedure, Rule F of the Supplemental Rules for Certain
Admiralty and Maritime Claims, and 28 U.S.C. § 1333.

5.

Thus, this action falls within the admiralty and maritime jurisdiction of this
Court under 28 U.S.C. §1333.

6.

Venue is proper in this district court as the accident involved in this
litigation took place in the Western District of Louisiana. 28 U.S.C. §1391.
JONES ACT

7.

Rottinghaus was a Jones Act seaman on the date of the collision.

8.

The Jones Act provides that “[a]ny seaman who shall suffer personal injury
in the course of his employment may, at his election, maintain an action for
damages at law . . . .” 46 U.S.C. § 688; Broussard v. Stolt Offshore, Inc.,
467 F.Supp.2d 668, 669 (E.D. La. 2006).

9.

Under the Jones Act, a seaman has a cause of action against his employer
for negligence. Becker v. Tidewater, 335 F.3d 376, 386 (5th Cir. 2003).

18

10.

The fundamental duty of a Jones Act employer is to provide his seaman
employees with a reasonably safe place to work. Colburn v. Bunge Towing,
Inc., 883 F.2d 372, 374 (5th Cir.1989); see Thomas J. Schoenbaum,
ADMIRALTY AND MARITIME LAW § 6-21 (5th ed. 2014). A Jones
Act employer's duty to provide a reasonably safe place to work is "absolute
and non-delegable." Schoenbaum, § 6-21.

11.

The Jones Act employer's potential liability extends to all personal injuries
arising during the course of the seaman's employment, but proof of
negligence is essential to recovery. Blaauw v. Superior Offshore
International, LLC, 2008 WL 4224808, at *10 (W.D. La. Sept. 10, 2008).
Such negligence may arise in many ways including the failure to use
reasonable care to provide a seaman with a safe place to work, the existence
of a dangerous condition on or about the vessel, failure to inspect the vessel
for hazards, failure to take precautions to protect a seaman or any other
breach of the duty of care. Id. (citing Davis v. Hill Engineering, Inc., 549
F.2d 314, 329 (5th Cir.1977), overruled on other grounds by Gautreaux v.
Scurlock Marine, Inc., 107 F.3d 331, 339 (5th Cir. 1997)); Schoenbaum, §
6-21.

12.

The duty of care owed by an employer under the Jones Act is that of
ordinary prudence, namely, the duty to take reasonable care under the

19

circumstances. Blaauw, at *10 (citing Gautreaux, 107 F.3d at 338-339).
13.

“The standard of care is not ‘what the employer subjectively knew, but
rather what it objectively knew or should have known.’” Id. (quoting Turner
v. Inland Tugs Co., 689 F.Supp. 612, 619 (E.D. La.1988)); see also
Pechawer v. Art Catering, Inc., 2007 WL 2127824, *3 (E.D. La. June 25,
2007).

14.

The seaman bears the evidentiary burden of proving that a breach of a duty
owed by the employer was a cause of his injuries. Blaauw, at *10 (citing
Davis, 549 F.2d at 331).

15.

A cause of action under the Jones Act arises when this duty is breached.
Blaau, at *10.

16.

The standard for causation in a Jones Act case is clear: "a defendant must
bear responsibility for his negligence if such negligence played any part,
even the slightest, in producing the injury" for which damages are sought.
Blaaw, at *10 (citing Landry v. Oceanic Contractors, Inc., 731 F.2d 299,
302 (5th Cir. 1984)).
UNSEAWORTHINESS

17.

A Jones Act seaman “may also sue the owner of any vessel on which he is
working for a breach of the warranty of seaworthiness.” Broussard, 467
F.Supp.2d at 670 (quoting Becker, 335 F.3d at 387).

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18.

In order to recover for the alleged unseaworthiness of the M/V CROSBY
MARINER, Rottinghaus must show that Crosby “provided a vessel
(including its appurtenances, gear and equipment) that was not reasonably
fit for its intended purposes.” Broussard, 467 F.Supp.2d at 670 (quoting
Phillips v. Western Co. of North America, 953 F.2d 923, 928 (5th Cir.
1992)).

19.

“[A]n unsafe method of work may . . . render a vessel unseaworthy.”
Broussard, 467 F.Supp.2d at 670; see also Usner v. Luckenbach Overseas
Corp., 400 U.S. 494, 91 S.Ct. 514, 518, 27 L.Ed.2d 562 (1971).

20.

An unseaworthiness remedy under general maritime law requires proof of
legal cause in the traditional tort sense, as opposed to the lessened burden of
proof required in Jones Act claims. Broussard, 467 F.Supp.2d at 670
(citing Frank L. Maraist & Thomas C. Galligan, Jr., Personal Injury in
Admiralty § 6-3(e), at 101-02 (2000)).

21.

An unseaworthy condition is the legal cause of an injury if it “played a
substantial part in bringing about or actually causing the injury and that the
injury was either a direct result or a reasonably probable consequence of the
unseaworthiness.” Phillips, 953 F.2d at 928; Brister v. A.W.I., Inc., 946
F.2d 350, 355 (5th Cir.1991).

21

MARITIME NEGLIGENCE
22.

A Jones Act seaman may also sue third parties for general maritime law
negligence. Becker, 335 F.3d at 387 (citing Usner, 400 U.S. at 498).

23.

The standard for negligence under the general maritime law is essentially
the same as that under general negligence law; accordingly, in analyzing
maritime tort cases, courts rely on the general principles of negligence law.
Blaauw, at *13 (citing Daigle v. Point Landing, Inc., 616 F.2d 825, 827 (5th
Cir.1980)).

24.

To establish maritime negligence, a plaintiff must “demonstrate that there
was a duty owed by the defendant to the plaintiff, breach of that duty, injury
sustained by [the] plaintiff, and a causal connection between the defendant's
conduct and the plaintiffs injury.” Delta Towing LLC v. Basic Energy
Services, 2011 WL 102717, at *3 (W.D. La. Jan. 12, 2011) (Doherty, J.)
(citing Canal Barge Co., Inc. v. Torco Oil Co., 220 F.3d 370, 376 (5th Cir.
2000) (alterations in original) (quoting In re Cooper/T. Smith, 929 F.2d
1073, 1077 (5th Cir. 1991)).

25.

Whether a defendant owes a plaintiff a legal duty is a question of law.
Delta Towing, at *3.

26.

The applicable standards of care in a collision case stem from the traditional
concepts of prudent seamanship and reasonable care, statutory and

22

regulatory rules and recognized customs and uses. Stolt Achievement, Ltd.
v. Dredge B.E. LINDHOLM, 447 F.3d 360, 364 (5th Cir. 2006).
27.

In maritime collision cases, fault which produces liability must be a
contributory and proximate cause of the collision, and not merely fault in
the abstract. Delta Towing, at *3 (citing Inter-Cities Nav. Corp. v. U.S.,
608 F.2d 1079, 1081 (5th Cir. 1979)). “To give rise to liability, a culpable
act or omission must have been ‘a substantial and material factor in causing
the collision.’” American River Transp. Co. v. Kavo Kaliakra SS, 148 F.3d
446, 450 (5th Cir.1998) (quoting Inter Cities at 1081)). “But-for” causation
is insufficient, in and of itself, to give rise to liability. Id.

28.

Establishing liability in a collision case is eased by the Pennsylvania Rule,
which provides that when a vessel is in violation of a statutory duty, the
burden is on the offending vessel to prove that its conduct did not and could
not have caused the collision. Stolt, 447 F.3d at 364. The Rule states:
[W]hen . . . a ship at the time of a collision is in actual violation of a
statutory rule intended to prevent collisions, it is no more than a reasonable
presumption that the fault, if not the sole cause, was at least a contributory
cause of the disaster. In such a case the burden rests upon the ship of
showing not merely that her fault might not have been one of the causes, or
that it probably was not, but that it could not have been.
Delta Towing, at *3 (citing American River, 148 F.3d at 449 (citing The
Steamship Pennsylvania v. Troop, 86 U.S. 125 (1873)).

23

29.

The Rule addresses burden of proof; it is not a rule of ultimate liability.
Delta Towing, at *3 (citing American River, 148 F.3d at 449; Pennzoil
Producing Co. v. Offshore Exp., Inc., 943 F.2d 1465, 1472 (5th Cir.1991)).

30.

Where both parties to a collision are in violation of statutes designed to
prevent collisions, the court may apportion fault between the parties, unless
either party proves that its statutory violation was not a substantial
contributing cause of the collision. Stolt, 447 F.3d at 34.

31.

Even without a statutory violation, liability may be imposed simply where
there is negligence. Stolt, 447 F.3d at 364 (citing Folkstone Maritime, Ltd.
v. CSX Corp., 64 F.3d 1037, 1046 (7th Cir. 1995)).

32.

The Inland Navigation Rules, also known as the “Rules of the Road,” apply
to all vessels upon the inland waters of the United States, including Bayou
Chene, Louisiana. See 33 C.F.R. § 83.01 et seq.

33.

Rule 6 of the Inland Navigation Rules governs safe speed of vessels, and
provides as follows:
Every vessel shall at all times proceed at a safe speed so that she can take
proper and effective action to avoid collision and be stopped within a
distance appropriate to the prevailing circumstances and conditions. In
determining a safe speed the following factors shall be among those taken
into account:
(a) By all vessels:
(1) The state of visibility;

24

(2) The traffic density including concentration of fishing vessels or any
other vessels;
(3) The maneuverability of the vessel with special reference to stopping
distance and turning ability in the prevailing conditions;
***
(6) The draft in relation to the available depth of water.
33 C.F.R. § 83.06 (2013).
34.

Rule 7 of the Inland Navigation Rules, governing risk of collision, provides,
pertinent part, as follows:
(a) Every vessel shall use all available means appropriate to the prevailing
circumstances and conditions to determine if risk of collision exists. If there
is any doubt such risk shall be deemed to exist.
(b) Proper use shall be made of radar equipment if fitted and operational,
including long-range scanning to obtain early warning of risk of collision
and radar plotting or equivalent systematic observation of detected objects.
***
(d) In determining if risk of collision exists the following considerations
shall be among those taken into account:
***
(ii) Such risk may sometimes exist even when an appreciable bearing
change is evident, particularly when approaching a very large vessel or a
tow or when approaching a vessel at close range.
33 C.F.R. § 83.07 (2013).

35.

Rule 8 of the Inland Navigation Rules, governing actions to avoid collision,
provides as follows:

25

(a) Any action taken to avoid collision shall, if the circumstances of the case
admit, be positive, made in ample time and with due regard to the
observance of good seamanship.
(b) Any alteration of course and/or speed to avoid collision shall, if the
circumstances of the case admit, be large enough to be readily apparent to
another vessel observing visually or by radar; a succession of small
alterations of course or speed should be avoided.
(c) If there is sufficient sea room, alteration of course alone may be the
most effective action to avoid a close-quarters situation provided that it is
made in good time, is substantial and does not result in another
close-quarters situation.
(d) Action taken to avoid collision with another vessel shall be such as to
result in passing at a safe distance. The effectiveness of the action shall be
carefully checked until the other vessel is finally past and clear.
(e) If necessary to avoid collision or allow more time to assess the situation,
a vessel shall slacken her speed or take all way off by stopping or reversing
her means of propulsion.
(f) Early action to allow room for safe passage:
(1) A vessel which, by any of these Rules, is required not to impede the
passage or safe passage of another vessel shall, when required by the
circumstances of the case, take early action to allow sufficient sea room for
the safe passage of the other vessel.
(2) A vessel required not to impede the passage or safe passage of another
vessel is not relieved of this obligation if approaching the other vessel so as
to involve risk of collision and shall, when taking action, have full regard to
the action which may be required by the Rules of this part.
(3) A vessel the passage of which is not to be impeded remains fully
obliged to comply with the Rules of this part when the two vessels are
approaching one another so as to involve risk of collision.
33 C.F.R. § 83.08 (2013).

26

36.

Vessels navigating Bayou Chene must adhere to the Narrow Channel Rules
(Rules 9 and 14) unless otherwise agreed. Burma Navigation Corp. v.
Reliant Seahorse MV, 99 F.3d 652, 658 (5 th Cir. 1996) (citing Marine
Transport Lines, Inc. v. M/V Tako Invader, 37 F.3d 1138, 1144 (5 th Cir.
1994)).

37.

Rule 9, governing narrow channels, provides:
(a) Keeping near to outer limit of channel or fairway which lies on vessel’s
starboard side; exception.
(1) A vessel proceeding along the course of a narrow channel or fairway
shall keep as near to the outer limit of the channel or fairway which lies on
her starboard side as is safe and practicable.
33 C.F.R. § 83.09 (2013).

38.

It has been held that “vessels crossing the centerline at the last moment in
the narrow channel are at fault and are responsible for the damages
resulting therefrom.” Burma, at 658.

39.

However, a vessel's position on one side or the other of the center of the
channel does not conclusively establish that a rule was violated. Burma, at
658. The downbound vessel's right-of-way under Rule 9(a)(ii) is
conditional – it depends on the downbound vessel's having proposed a
manner and place of passage and initiated the maneuvering signals
prescribed by Rule 34(a)(i), as appropriate. Id. (citing Marine Transport,
37 F.3d at 1143-44).
27

40.

When the downbound vessel exercises its authority under Rule 9(a)(ii),3 the
upbound vessel must give way, even “hold as necessary to permit safe
passing. Marine Transport, 37 F.3d at 1144 (citing 33 U.S.C. 2009(a)(ii)).

41.

Rule 14 of the Inland Navigation Rules governs “head-on” meeting
situations. Rule 14(d) provides as follows:
(d) Notwithstanding paragraph (a) of this Rule, a power-driven
vessel operating on the Great Lakes, Western Rivers, or waters
specified by the Secretary, and proceeding downbound with a
following current shall have the right-of-way over an upbound
vessel, shall propose the manner of passage, and shall initiate the
maneuvering signals prescribed by Rule 34(a)(i) (§83.34(a)(i)), as
appropriate.
33 U.S.C. § 83.14 (2013).

42.

Inland Rules 9(a)(ii), 14(d), and 15(b) apply on the Great Lakes, the Western
Rivers, and the following specified waters: (a) Tennessee-Tombigbee
Waterway; (b) Tombigbee River; (c) Black Warrior River; (d) Alabama
River; (e) Coosa River; (f) Mobile River above the Cochrane Bridge at St.
Louis Point; (g) Flint River; (h) Chattahoochee River; (i) The Apalachicola
River above its confluence with the Jackson River. 33 C.F.R. § 89.25

3

Rule 9(a)(2) provides: Notwithstanding paragraph (a)(1) of this Rule and Rule 14(a), a
power-driven vessel operating in narrow channels or fairways on the Great Lakes, Western Rivers, or
waters specified by the Secretary, and proceeding downbound with a following current shall have the
right-of-way over an upbound vessel, shall propose the manner and place of passage, and shall initiate the
maneuvering signals prescribed by Rule 34(a)(1), as appropriate. The vessel proceeding upbound against
the current shall hold as necessary to permit safe passing.
33 C.F.R. § 83.09 (2013).

28

(2013). Accordingly, these Rules does not apply to Bayou Chene.
LIMITATION OF LIABILITY
43.

Crosby's alternative claim is that it entitled to limit its liability. The claim
for limitation of liability is based on 46 U.S.C. § 30505. As a general
matter, the liability of a vessel owner for a property damage claim arising
out of an allision shall not exceed the value of the vessel and pending
freight, if the negligent act causing the allision occurred without the vessel
owner's privity or knowledge. 46 U.S.C. § 30505; Delta Towing, *2.

44.

Privity or knowledge, sometimes described as “complicity in the fault,”
extends beyond actual knowledge to knowledge that the ship owner would
have obtained by reasonable investigation. Delta Towing, at *2 (citing In re
Signal Intern., LLC, 579 F.3d 478, 496 (5th Cir. 2009)). “If the owner is
chargeable with privity or knowledge, he may not limit.” Id. (citing
Coleman v. Jahncke Service, Inc., 341 F.2d 956, 957 (5th Cir. 1965)).

45.

Once a claimant proves that negligence . . . caused an accident, an owner
seeking limitation must show it lacked privity or knowledge of the
condition. Delta Towing, at *2 (citing Petition of Kristie Leigh Enterprises,
Inc., 72 F.3d 479, 481 (5th Cir. 1996)); see also Coleman, at 958 (Petitioner
in limitation bears burden of proving lack of privity or knowledge; the
burden of proving negligence lies with the claimants).

29

46.

Stated otherwise, the determination of whether a shipowner is entitled to
limitation employs a two-step process: first, the court must determine what
acts of negligence (or conditions of unseaworthiness) caused the accident;
second, the court must determine whether the shipowner had knowledge or
privity of those same acts of negligence or conditions of unseaworthiness.
Delta Towing, at *2 (citing Farrell Lines Inc. v. Jones, 530 F.2d 7, 10 (5th
Cir. 1976)); Kristie Leigh, 72 F.3d at 481 (footnote omitted).

47.

A vessel owner's “burden to prove lack of privity or knowledge only arises
when . . . [the claimant] has shown unseaworthiness [or negligence] was
the proximate cause of the loss. Delta Towing, at *2 (citing In re Signal
Intern., LLC, 579 F.3d 478, 496 (5th Cir. 2009)). Thus, whether or not the
vessel owner had knowledge of other acts of negligence is immaterial. Id. at
500; see also Farrell, 530 F.2d at 10 (“Knowledge or privity of any fact or
act causing the accident is not enough for denial of limitation; it is only
knowledge or privity of negligent acts or unseaworthy conditions which
trigger a denial of limitation.”).

48.

To preclude limitation, a shipowner's knowledge need not be actual; rather,
he is charged with knowledge of acts or events that could have been
discovered through reasonable diligence. Delta Towing, at *2 (citing
Empresa Lineas Maritimas Argentinas S.A. v. U.S., 730 F.2d 153, 155 (5th

30

Cir. 1984)).
49.

A corporate owner is charged with the knowledge of its managing agents
who have authority over the sphere of activities in question. Kristie Leigh,
72 F.3d at 481.

50.

A denial of exoneration does not necessarily preclude a grant of limitation of
liability. Tittle v. Aldacosta, 544 F.2d 752, 756 (5th Cir. 1977). Exoneration
is contingent upon a finding of no contributory fault. Id.
DAMAGES

51.

Under the Jones Act and general maritime law, an injured seaman is entitled
to monetary recovery for past, present and future loss of earning capacity
and wages, medical expenses, and pain and suffering resulting from an
injury caused by negligence and/or unseaworthiness. Blaauw, at *14
(citing Schoenbaum, §§ 5-15 and 6-18; Nichols v. Weeks Marine, Inc., 513
F. Supp. 2d 627, 637 (E.D. La. 2007)).

52.

With the exception of awards for future pain and suffering, future losses
(income and medical expenses) must be discounted to present value.
Blaauw, *14 (citing Culver v. Slater Boat Co. (Culver II), 722 F.2d 114,
117 (5th Cir. 1983); Schoenbaum, §§ 5-15 and 6-18; O’Byrne v. St. Louis
Southwestern Ry. Co., 632 F.2d 1285, 1286 (5th Cir. 1980)).

31

53.

Future lost income must also reflect a judgment to net, after-tax value.
Blaauw, at *14.

54.

Lost earning capacity in the past is usually measured by the actual wage
losses incurred by the plaintiff from the date of the accident to the date of
trial. Blaauw, at *14 (citing Schoenbaum, § 5-16; Johnson v. Cenac Towing
Inc., 468 F.Supp.2d 815, 834 (E.D. La. 2006) aff'd in part, vacated in part,
remanded, 544 F.3d 296 (5th Cir. 2008)).

55.

The Fifth Circuit has established a four-step method for calculating future
loss of earning capacity in maritime cases in Culver II. To determine future
lost wages, the Court must: (1) estimate the expected remaining work-life of
the claimant; (2) calculate the lost income stream; (3) compute the total lost
income stream; and (4) discount that total to present value. Blaauw, at *15
(citing Culver II, 722 F.2d at 117; Schoenbaum, § 5-16.2).

56.

There is a difference between future loss of earnings and loss of earning
capacity. Lambert v. Teco Barge Line, 2007 WL 2461681, at *1 (E.D. La.
Aug. 23, 2007) (citing Culver II, 722 F.2d at 117). A calculation of the lost
income stream begins with the gross earnings of the injured party at the
time of the injury. Id. While the determination of Plaintiff's future loss of
earnings is tied to what Plaintiff was earning at the time of his alleged
accident, the determination of Plaintiff's loss of earning capacity is not so

32

limited because the jury may consider evidence of the enhanced earnings of
tug boat captains, post-Katrina. Id.
57.

An award for pain and suffering may include a sum for mental anguish and
physical discomfort, and for the mental and physical effects of the injury on
the plaintiff's ability to engage in those activities which normally contribute
to the enjoyment of life. Blaauw, at *15 (citing Schoenbaum, §§ 5-16.3 and
6-18.4).

58.

These damages are not subject to precise measurement. Blaauw, at *15.
Any amount to be awarded for pain and suffering depends to a great extent
on the trial court's observation of the plaintiff and its subjective
determination of a reasonable amount needed to achieve full compensation.
Id. (citing Hyde v. Chevron U.S.A ., Inc., 697 F.2d 614, 632 (5th Cir.
1983)). An award for pain and suffering also depends on the facts of the
particular case. Id. (citing Allen v. Seacoast Products, Inc., 623 F.2d 355,
364-365 (5th Cir. 1980), overruled by Gautreaux v. Scurlock Marine, Inc.,
107 F.3d 331 (5th Cir. 1997)).
MAINTENANCE AND CURE

59.

A seaman is also entitled to receive maintenance and cure from his
employer if he becomes ill or injured during his service to the ship.
Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). A vessel

33

owner must pay maintenance and cure to any seaman who becomes ill or
injured during his service to the ship, regardless of whether the vessel
owner was negligent. Bertram v. Freeport McMoran, Inc., 35 F.3d 1008,
1011 (5th Cir. 1994). Thus, to establish a claim for maintenance and cure, a
seaman need only show that his injuries occurred while in service to the
vessel. Boudreaux, 280 F.3d at 468.
60.

The doctrine of maintenance entitles an injured seaman to the reasonable
cost of food and lodging actually expended. Hall v. Noble Drilling Inc.,
242 F.3d 582, 587-88 (5th Cir. 2001). The doctrine of cure obligates the
vessel owner to reimburse the seaman for his medical expenses actually
incurred and to ensure that the seaman receives the proper treatment and
care. Boudreaux, 280 F.3d at 468. The maintenance and cure obligation
ceases only when the seaman has reached maximum cure. Id. Maximum
cure is reached when it is probable that further treatment will result in no
betterment of the seaman's condition. Springborn v. American Commercial
Barge Lines, Inc., 767 F.2d 89, 95 (5th Cir. 1985).
APPORTIONMENT OF FAULT

61.

Under the Jones Act and general maritime law, defendants are liable jointly
and severally to the Plaintiff. Daigle v. L & L Marine Trans. Co., 322
F.Supp.2d 717, 732 (E.D. La. 2004) (citing Hardy v. Gulf Oil Corp., 949

34

F.2d 826, 829 (5th Cir. 1992)). However, in maritime tort cases where
more than one party is responsible, courts apportion liability on the basis of
fault according to the rules of comparative negligence. Id. (citing U.S. v.
Reliable Transfer Co., 421 U.S. 397, 411, 95 S.Ct. 1708, 44 L.Ed.2d 251
(1975); Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1130 (5th Cir.
1995)).
62.

In this case, the Court finds that Crosby and Triton are liable for the
following percentages of fault:
Crosby:
Triton

63.

50%
50%

The court finds no fault on the part of the plaintiff, Rottinghaus.
DAMAGES

64.

Past medical expenses: the parties stipulated that all past medical expenses
have been paid, so no award will be made.

65.

Future medical expenses: the evidence was uncontradicted that
Rottinghaus will need the medications which he is currently taking to
control his headaches for life. The cost of those medications, discounted to
present value, is $130,406, which is awarded. Additionally, the Court finds
that cognitive retraining will benefit Rottinghaus and increase substantially
his post-accident earning capacity. The cost of this cognitive retraining in

35

the amount of $36,000 is awarded. The Court further finds that
psychological counseling will benefit Rottinghaus, and will award the
amount necessary to provide 36 sessions over the next three years at the rate
of $150 an hour, for an award of $5,400. Thus, the future medical expenses
awarded are $171,806.
66.

Past wage loss: At the time of the accident, Rottinghaus was employed by
Crosby Marine. In his last full work year, 2012, he earned $86,435. The
economist retained to testify on behalf of the plaintiff used this amount to
calculate past lost wage. The Court will use $7,200 per month ($86,400 per
year) to calculate past wage loss. Because of a downturn in the oil and gas
production industry, all Crosby personnel took a 25% pay cut in January
2015. The evidence showed that such increases and decreases in salary for
persons employed in the oil and gas production industry, as well as those
persons employed, like Rottinghaus, in industry support services, go up and
down over time. To compute past wage loss, the Court will use the 2012
wage base, and will reduce wages for 25% from January 1, 2015 to August
1, 2015. Accordingly, the following past wage loss award is made:
May 22 – May 31, 2013:
June 1 – December 31, 2013:
January 1, 2014 – December 31, 2014:
January 1, 2015 – August 1, 2015:
TOTAL:
36

$ 2,760
$50,400
$86,000
$43,200
$182,360

67.

Future wage loss: The economic expert retained by the plaintiff used
wages which he opined Rottinghaus would make as a mate, not a boat
captain, to make his computation. The Court will do the same. According
to Department of Labor figures furnished by the vocational rehabilitation
expert retained by the plaintiff, the median wage for mates on boats in
Louisiana is $87,000 per year.

68.

The Court finds that, after suitable cognitive retraining, Rottinghaus can
return to work as a maritime dispatcher. This will utilize his prior
experience and allow him to transfer skills that he has acquired as a crew
member. Based on the testimony of the rehabilitation expert retained by the
defendant, such jobs are available in the industry.

69.

According to the Department of Labor statistics furnished by the
rehabilitation expert retained by the plaintiff, median wage for maritime
dispatchers in Louisiana is $34,000 per year. Thus, plaintiff has sustained a
loss in wage earning capacity of $53,000 per year. The Court finds that
Rottinghaus has a retirement age of 59.4 years.

70.

Crosby Marine proffered testimony that it pays its dispatchers as much as
$60,000 per year and that Rottinghaus was suitable for appointment with
Crosby at that rate. It would be unreasonable to expect Rottinghaus to
return to work for Crosby given this lawsuit. Furthermore, the Court finds

37

that if the Court is going to use median wage as a mate that it is only fair to
use median wage as a dispatcher to compute loss of wage earning capacity
in this case.
71.

The defendants' expert economist, Dr. Boudreaux, opined that future wage
loss in this case can be reasonably computed by multiplying the annual
earning capacity loss by 18. The Court agrees with this methodology, and
will compute the future wage loss in that matter. After multiplying the
annual capacity loss of $53,000 by 18, the Court awards the plaintiff
$954,000 in future wage loss.

72.

General damages – neck: the plaintiff was severely injured in this
accident, sustaining trauma to his neck, head and upper back. Plaintiff went
through a long period of conservative treatment including physical therapy
over an extended period of time. Ultimately, after a long period of
conservative treatment, plaintiff successfully underwent a two-level cervical
fusion with instrumentation. Fortunately, the plaintiff got a good result.
The Court awards $250,000 in general damages for the plaintiff's neck
injury and resultant radiculopathy.

73.

General damages – head and brain injury: Rottinghaus sustained a
serious closed head injury from which he has made a generally good,
though only partial, recovery. Rottinghaus has had memory loss and has

38

particular difficulty in verbal communication, which the Court noted during
Rottinghaus's testimony. While he has trouble with verbal communication,
Rottinghaus has made accommodation and is able to reasonably
communicate verbally. The Court believes that the cognitive retraining
suggested during trial will assist Rottinghaus in his day-to-day work
activities and social activities. For several years after the accident,
Rottinghaus had debilitating headaches and remains sensitive to light and
sound on an episodic basis. Rottinghaus is no longer able to do many of the
things which he was able to do prior to the accident. Importantly,
Rottinghaus' ambition to become a boat captain is no longer available to
him. Given Rottinghaus' continuing headaches and his other losses as a
result of his head injury, the Court awards $450,000 for general damages
for the head and brain injury sustained by Rottinghaus.
74.

Found and fringe benefits: While these items of damages are recoverable,
insufficient proof was adduced at trial so as to allow an award for these
items.
RECAPITULATION OF DAMAGES TO PLAINTIFF

Past medical expenses:
Future medical expenses:
Found:
Fringe benefits:
Past wage loss:

$0
$171,806
$0
$0
$182,360 (net of wage
advances made to date)
39

Future wage loss:
General damages -- neck:
General. damages-- brain injury:

$954,000
$250,000
$450,000
$2,008,166

TOTAL AWARD:
74.

The parties stipulated that the following amounts for damages to the vessels
have been incurred, which the Court rewards to each party, subject to
reduction for their own fault:

CROSBY MARINER
MARINER hull repairs
MARMAC 22 repairs
Replacement barge
Crew drug screen costs
Survey costs

$32,082.45
$17,500.00
$18,000.00
$ 1,508.35
$ 3,018.93

TRITON ACHIEVER
Hull repairs
Post-incident drug screens
Compliance fees to ABS
Damage
Delivery and return of tapping tool
to be used in riser installation job
75.

$49,868.68
$ 844.70
$ 1,000.70
$ 3,034.25
$ 1,511.66

As set out above, Rottinghaus has received salary advances from Crosby.
The past wage loss award shall be reduced (net of) all such amounts paid to
Rottinghaus. Additionally, since Triton will benefit from these payments,
judgment will be awarded in favor of Crosby against Triton for one-half of
all such salary advances made to Rottinghaus.

40

76.

Since the damages awarded Rottinghaus against Crosby are less than the
amount deposited into the registry of the Court pursuant to the limitation
proceeding, the Court need not make a finding on the limitation action.
PREJUDGMENT INTEREST

77.

Because this is an admiralty case, the Court has the discretion to award
prejudgment interest, and exercises its discretion to award interest from the
date of Crosby’s filing of this action (August 1, 2013) at the rate of .33%,
which is the most recently quoted rate for one-year constant maturity
treasury bills, on plaintiff’s past damages described above (past lost wages
and past pain and suffering). See Blaauw, at *21.

78.

In this Circuit, there is a strong presumption in favor of awarding
pre-judgment interest, and it will usually only be denied in cases where the
plaintiff exercised undue delay in bringing his action. Daigle v. L & L
Marine Trans. Co., 322 F.Supp.2d 717, 732 (E.D. La. 2004) (citing U.S. v.
Ocean Bulk Ships, Inc., 248 F.3d 331, 344 (5th Cir. 2001)).

79.

The Court finds no such delay present in this case at bar and finds that
Rottinghaus is entitled to pre-judgment interest on past damages from the
date of judicial demand until the date paid, calculated at the rate of .33 %.
Further, claimant is entitled to post-judgment interest at the legal rate on all

41

remaining damages from the date of judicial demand until the date paid, as
well as all taxable costs of court.
The parties shall submit a Judgment to the Court, approved as to form by all
parties, in accordance with the above findings and conclusions within seven (7) days.
August 7, 2015, at Lafayette, Louisiana.

42