Soliman v. Maersk Line, Limited

Filing 40

JUDGMENT in favor of Plaintiff Mohammed Soliman against Defendant Maersk Line, Ltd. For the reasons set forth herein, the Court finds Maersk liable for Jones Act Negligence and awards Mohammed Soliman damages in the amount of $638,603. Ordered by Magistrate Judge Ramon E. Reyes, Jr on 1/26/2017. (Naidich, Zachary)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No. 14-cv-5951 (RER)

_____________________

MOHAMMED SOLIMAN,
Plaintiff,
VERSE

MAERSK LINE LTD,
Defendants.
___________________
FINDINGS OF FACT & CONCLUSIONS OF LAW
January 26 2017
___________________

RAMON E. REYES, JR., U.S.M.J.

BACKGROUND

Mohammed Soliman (“Soliman”)
commenced this action against defendant
Maersk Line Limited (“Maersk”) for Jones
Act Negligence, 46 U.S.C. § 30104, and
general maritime unseaworthiness, after
suffering a debilitating shoulder injury during
the course of his duties as an Able Bodied
Seaman (“ABS”) aboard the Maersk Idaho
(the “Idaho”). (Dkt. No. 1). Based on
testimony received during the course of a
bench trial and additional depositions
submitted by both parties, I conclude that
Maersk is liable for negligence under the
Jones Act. I further conclude that Soliman,
through his own negligence, was fifty percent
at fault. As such, I award Soliman damages
in the amount of $638,603.

In October of 2011, Soliman was
employed as an ABS aboard the Idaho, a
United States flagged containership. On
October 22, while engaged in garbage
disposal in the port of Algeciras, Spain,
Soliman suffered a torn rotator cuff in his
right shoulder. Following his injury, Soliman
underwent three failed surgeries and has been
unable to return to the profession he had
practiced for 38 years.
A.

Soliman

Soliman was born in Alexandria
Egypt in 1950. (Testimony of Mohammed
Soliman (“Soliman”) 43:3-6). In 1973, he
began what would ultimately become a 38year career as a seaman. (Soliman 44:4-6).
While attending maritime school in Egypt,
(Soliman 157:20-25), he received instruction
1

B.

on maritime safety and proper lifting,
including the importance of keeping his arm
by his side, rather than extended, when
lifting.
(Soliman
158:13-25).
After
graduating, he spent 18 years sailing for the
Egyptian Navigation Company. (Soliman
44:10-18). In 1990, Soliman immigrated to
the United States, working for various
shipyards before joining the Seafarers
Maritime Union in 2000 and returning to
work as a seaman aboard United States
flagged vessels. (Soliman 46:24-47:1, 47:1022, 48:1-6). By 2009, Soliman was sailing for
Maersk, first aboard the Maersk Montana and
later as an ABS on the Idaho. (Joint Ex. 7).

The Accident

At the time of the instant injury,
Soliman was assisting with garbage disposal
in the port of Algeciras, Spain. (Soliman
50:25-51:2, 54:6-12). Aboard the Idaho, trash
is generally gathered from around the ship
and collected in the garbage room, located on
the port side of the main deck. (Willers
22:18-19). On longer voyages, where space
becomes limited, additional room is made by
compacting the garbage bags in a hydraulic
press located in the garbage room. (Soliman
77:1-5, Willers 25:4-10). Compacted garbage
is kept in heavy duty black bags. (Deposition
Testimony of Robert Neilson (“Neilson”)
37:5-8). Captain Willers testified that bags
were rarely compacted before arrival in
Algeciras, because it was such a short trip
from the preceding port. (Willers 172:5-10).
First Mate Robert Neilson, who assisted
Soliman with garbage disposal, testified that
the offending bag was green, not black,
(Neilson 38:11-12), suggesting it was not
compacted. Soliman offered no evidence that
the offending bag was overweight or
otherwise dangerous due to compacting.

Soliman was regarded as highly
skilled
and
competent.
(Deposition
Testimony of Paul August Willers
(“Willers”) 39:11-13). Captain Paul Willers,
Master of the Idaho, testified that he “would
evaluate [Soliman] very well. I would have
put him above average[.]” 1 Id. Soliman
himself testified that he did not need
instruction because he had been sailing for so
long. (Soliman 181:24-25) (“I know a lot – I
know a lot about safety. I don’t
need…somebody tells me that again.”). Prior
to the instant accident Soliman had only
suffered two injuries during his long career,
(Soliman 45:19-21; 97:20-98:12; 102:22103:3), including one aboard the Idaho just
prior to the injury that prompted this
litigation. (Willers 97:20-98:12). On that
occasion, Soliman strained his left shoulder
while pulling a mooring line. Id. Following
treatment, he promptly returned to work.
(Soliman 98:7-12; Df. Ex. A).

When
unloading
garbage
in
Algeciras, the Idaho usually follows the same
procedure. After reaching the relative calm of
break water, crewmembers carry garbage
bags from the garbage room, up a flight of
steps and across the breadth of the ship to
starboard side A-Deck. (Soliman 172:12-16;
179:2-6). Garbage is then staged for disposal
on the exterior portion of starboard A-Deck.
(Soliman 179:21-190:1; Joint Ex. 17-21).
The location is tight and cluttered. A ladder
runs along the bulkhead. (Soliman 55:10-14;
Joint Ex. 2). A narrow passage exists
between the ladder and the rail. Id. Below the

1

This testimony is admitted not “to prove that on
[this] occasion [Soliman] acted in accordance with a
character or trait[,]” as prohibited under F.R.E.
404(a)(1), but rather to demonstrate that Soliman

possessed the requisite skill and knowledge to
appreciate the risks associated with this particular
task.

2

After successfully pulling four to six
bags, Soliman reached for a bag located at
approximately shoulder height. (Soliman
72:11-17, 73:3-5). As he pulled, Soliman felt
a sudden sharp pain and tugging sensation in
his shoulder. (Soliman 73:12-14). The bag
did not move. (Soliman 73:16-18). Soliman
testified to experiencing “[a] lot of pain and
my arm hung, like I couldn’t lift it. And I was
screaming from pain[.]” (Soliman 73:19-21).
He was sedated by the Second Mate and slept
in his bunk until the following day, at which
point he was seen by a doctor. (Soliman 76:17, 91:5-10; Df. Ex. A). The doctor found
Soliman unfit for duty, at which point Maersk
provided transportation back to the United
States. (Soliman 95:1-3)

ladder is a door. (Soliman 55:5-56:18; Joint
Ex. 21). Between the door and ladder there is
a small window. (Soliman 55:5-7; Joint Ex.
17-21). Along the bulkhead are multiple
protrusions, most notably a portal for passing
a fire hose and a handhold roughly the
proportions of a towel rack, located at the
same height as the first and fourth steps of the
ladder. (Soliman 55:5-56:18; Joint Ex. 1721). The garbage bags are stored against the
bulkhead beneath the ladder. (Soliman 56:425; Joint Ex 11). A net is laid out on the
ground between the bags and the exterior rail,
leaving a very narrow strip of deck where a
seaman can stand. (Soliman 58:16-19; Joint
Ex. 2). According to Soliman, “[t]he net is
right next to me…It’s a small space and I
could step on the net and slip.” (Soliman
74:14-16; Joint Ex. 18). Crewmembers then
pull bags from the pile, placing them in the
net until it is full, at which point the Suez
Crane is used to lift the net and lower it onto
the dock for disposal. (Soliman 58:11-16).

C.

Safety Procedures
The Idaho

Aboard

The Idaho is required to comply with
the International Management Code for the
Safe Operation of Ships and for Pollution
Prevention (“ISM”), which mandates that
United States flagged vessels develop a
safety management system (“SMS”) that
provides safeguards against all identified
risks. 33 C.F.R. §96.230(b). Consistent with
this mandate, Maersk has a SMS, which was
audited and found compliant. (Testimony of
Mitchell Stoller (“Stoller”) 284:17-285:1;
Joint Ex. 13-14). According to Maersk’s
expert witness, risks are identified on the
basis of “common sense, and it’s probably
based on past experience.” (Testimony of
John Lawrence Bergin (“Bergin”) 302:6-7).
Under Maersk’s SMS, a risk assessment must
be conducted before any task that involves an
identified risk. (Willers 150:1-3).

On the day of Soliman’s injury,
garbage bags had been piled approximately
seven to eight feet high beneath the A-Deck
ladder. (Soliman 54:23-55:1, 56:23-25).
After stacking the bags, Soliman and another
crewmember began pulling bags from the
stack into the net. (Soliman 54:9-12, 64:2265:7). Soliman was closer to the base of the
ladder, facing stern and pulling with his right
arm. (Soliman 68:22-24, 69:20-25). As he
grabbed the bags, Soliman’s arm was bent at
the elbow, and his hand was at shoulder
height. (Soliman 72:22-25). His hand was
turned halfway between palm up and palm
down, similar to a handshake. (Soliman 81:813). After grasping each bag with his right
hand, Soliman would pull his arm down and
across his body in a 90 degree swing.
(Soliman 81:19-23). This was the method
used by all members of the Idaho crew.
(Soliman 74:1-21).

Maersk provides crewmembers with
training on proper lifting, including several
pages dedicated to the subject in its safety
handbook. (Joint Ex. 93 at 30-33). Prior to his
injury, Maersk invited Soliman and other
3

that except that’s the way people normally
pick up bags and move them.”). Following
the accident, but before learning the true
nature of Soliman’s injury, Captain Willers
suggested that additional training in
repetitive stress injuries was necessary.
(Willers 77:16-78:25). There is no indication
that any risk assessment was ever conducted
for this task.

crewmembers to attend a conference entitled
“Safety in Motion,” which addressed proper
lifting technique. (Soliman 116:19-117:2;
Stoller 307:14-308:3). Soliman did not to
attend. (Soliman 118:2-22). Soliman’s own
expert witness commended Maersk for
holding the conference, which he
characterized as above and beyond what most
companies offer. (Stoller 308:8-14).
While Maersk appears to have
provided extensive training and instruction
on proper lifting, the company failed to
provide any training on safe pulling.
(Deposition Testimony of Anderson
Warwick, (“Warwick”) 113:1-5; Willers
56:14-25). When asked if crewmembers were
trained in proper pulling, Captain Willers
testified that “[w]hen everybody comes on
board there’s a safety manual given out to
them that gives instruction on how people are
to proceed for lifting things…that’s the only
instruction[.]” (Willers 56:14-25). While
weekly safety meetings occurred, there is no
indication that garbage disposal or pulling
techniques were ever discussed. (Willers
148:12-149:18). The Maersk Safety
Handbook contains three pages, replete with
diagrams, on safe lifting, but makes no
mention of pulling. (Joint Ex. 93 at 30-33).
No training regarding the pulling of trash
bags was ever provided. (Soliman 83:17-25).

D.

As a result of the accident, Soliman
suffered a torn rotator cuff that left his right
arm largely useless. (Testimony of Alan
Dyan (“Dyan”) 469:13-14). In an effort to
regain the use of his arm, Soliman underwent
three separate surgeries. (Soliman 107:2-8).
Prior to undergoing his third surgery Dr.
Frances Cuomo, Soliman’s second treating
physician, “found him to have a very limited
ability to lift the right shoulder. His elevation
of the arm [was] 90 degrees on the right
side[,]” as opposed to 180 degrees on the left.
(Testimony of Frances Cuomo (“Cuomo”)
335:12-15). Dr. Cuomo further found that
Soliman “had limited internal rotation[,]”
was “extremely weak[,]” and “had some
decreased sensation in the area of the
deltoid[.]” (Cuomo 335:15-25). Based on a
review of an MRI, Dr. Cuomo described the
tear as “massive.” (Cuomo 345:8-9).

Chief Mate Anderson Warwick, who
was officially designated to supervise
garbage disposal, witnessed Soliman using a
one armed sideways pull to move the garbage
bags but did not comment on it, regarding it
as the correct approach to routine work.
(Warwick 27:6-19). Captain Willers admitted
that he had never even considered whether
the pulling technique was safe or appropriate.
(Willers 54:17-23) (“Q: Why is it that this
particular type of job…is a one hand job
rather than two hands? A: Interesting
question. I don’t really have an answer for

Dr. Edward Toriello, an orthopedic
surgeon who testified as an expert witness for
Maersk, argued that Soliman had an
asymptomatic tear prior to October 22, which
only manifested at the time of the accident.
(Testimony of Edward Toriello (“Toriello”)
438:24-439:14). Dr. Cuomo testified that a
sizable number of people suffer from
asymptomatic torn rotator cuffs. (Cuomo
379:11-382:11). However, Dr. Cuomo did
not believe Soliman was such a person.
(Cuomo
344:23-345:1,
384:5-389:25).
Rather, she testified that the injury appear to
4

Soliman’s Injuries

be acute and consistent with an individual
traumatic event. (Cuomo 390:8-9). Further,
Dr. Alan Dyan, Soliman’s first treating
physician who testified from firsthand
knowledge gained during the course of two
surgeries, stated that Soliman did not have a
pre-existing injury. (Dyan 491:1-495:1).
Rather, he opined that Soliman’s injury was
traumatic and recently onset. (Dyan 489:18490:17). Having weighed the testimony, I
credit the opinions of Soliman’s treating
physicians.

DISCUSSION
I.

Liability

When a seaman is injured during the
course of his employment, he may bring
claims under the Jones Act for negligence or
under
general
maritime
law
for
unseaworthiness. It is well-settled that
maritime employers are bound by a “dut[y] to
avoid unseaworthiness and negligence,” and
that “injuries caused by a breach of either
duty are compensable.” Norfolk Shipbuilding
& Drydock Corp. v. Garris, 532, U.S. 811,
813, 121 S.Ct. 1927, 150 L.Ed.2d 34 (2001).
While an injury may justify relief under both
causes of action, the applicable standards for
each are different.

Today, Soliman suffers from a
dramatically reduced range of motion in his
right arm, which causes him daily pain.
(Soliman 124:4-21; Cuomo 353:10-23,
367:5-10). Soliman testified that he cannot
move his right arm away from his body and
cannot lift anything other than the lightest of
objects. (Soliman 124:1-10). There is no
indication that this pain will reduce as time
passes or that his range of motion or physical
fitness will improve. (Cuomo 362:4-10).
Rather, the evidence suggests his condition
will only continue to deteriorate. (Cuomo
357:21-24) (“There’s also significant
changes in the cartilage, he’s starting to get
arthritis now. So, the whole process is
progressing, bigger tear, weaker tendon,
degenerative cartilage[.]”). He is currently
experiencing “at least 75 percent loss of use.”
(Cuomo 366:25). According to the testimony
of Soliman’s forensic economist, Soliman
has experienced a total economic loss of
$277,206. (Testimony of Michael Soundry
(“Soundry”) 412:1-2). This is based on the
expectation that Soliman would have
continued working until he was sixty-six and
a half years old, the end of his statistical work
life expectancy, an assumption I accept.
(Soundry 411:22-25).

A.

The Jones Act

Under the Jones Act, “[a] seaman
injured in the course of employment…may
elect to bring a civil action…against [his]
employer.” 46 U.S.C. § 30104. The Jones Act
incorporates laws “regulating recovery for
personal injury to…a railway employee[.]”
Id. This includes the Federal Employers’
Liability Act (“FELA”), which states in
relevant part that employers are liable for
“injury resulting in whole or in part from
[their] negligence[.]” 45 U.S.C. § 51; see also
Wills v. Amerada Hess Corp., 379 F.3d 32
(2d Cir. 2004) (relying on FELA cases to
interpret the Jones Act). The prima facie case
for Jones Act negligence requires the plaintiff
to prove “(1) that a dangerous condition
actually existed on the ship; (2) that the
defendant shipowner had notice of the
dangerous condition and should have
reasonably anticipated the plaintiff might be
injured by it; and (3) that if the shipowner
was negligent, such negligence proximately
caused the plaintiff’s injuries.” Deibold v.
Moore McCormack Bulk Transport Lines,
Inc., 805 F.2d 55, 58 (2d Cir. 1986) (internal
5

owners. See id; see also Williams v. Long
Island R.R., 196 F.3d 402, 406 (2d Cir. 1999)
(“[T]his Circuit has explicitly stated that it
construes the statute, in light of its broad
remedial nature, as creating a relaxed
standard for negligence as well as
causation.”) (internal quotations and citations
omitted). Under this reduced standard, “an
employer may be held liable…for risks that
would be too remote to support liability under
common law [negligence.]” Williams, 196
F.3d at 407.

quotations omitted); see also Seemann v.
Coastal Environmental Group, Inc., -F.Supp.3d --, 2016 WL 7015728, at *4
(E.D.N.Y. Nov. 29, 2016).
Where a maritime employer acts
negligently, the broad remedial nature of the
Jones Act demands that causation be judged
under a reduced standard. See Wills, 379 F.3d
at 47 n.8 (“Under both [the Jones Act and
FELA], the plaintiff bears a reduced burden
of proof with respect to causation.”). Under
this reduced standard, an employer is liable
to its employee if “employer negligence
played any part, even the slightest, in
producing the injury[.]” Rogers v. Mo. Pac.
R.R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 1
L.Ed.2d 493 (1957); see also Martinez v. City
of New York, No. 14 Civ. 632, 2016 WL
1276449, at *2 (S.D.N.Y. Mar. 30, 2016)
(“The standard for a Jones Act claim is a ‘low
and liberal’ one, requiring only that ‘the
proofs justify with reason the conclusion that
employer negligence played any part, even
the slightest in producing the injury[.]”)
(quoting Diebold, 805 F.2d at 57 (emphasis
in original); Nasser v. CSX Lines, LLC, 191
F.Supp.2d 307, 313 (E.D.N.Y. 2002)
(articulating the same principle). Evidence of
causation may be entirely circumstantial and
direct proof is not required. See Rogers, 353
U.S. at 507.

Maersk incorrectly argues that
Williams is no longer good law in light of the
Supreme Court’s 2001 ruling in CSX Transp.
Inc. v. McBride, 564 U.S. 685, 131 S.Ct.
2630, 180 L.Ed.2d 637 (2011). (Dkt. No. 36
(Defendant’s Post-Trial Brief (“Df. Br.”)) at
14). This interpretation is too broad. The
Supreme Court’s discussion of the reduced
standard in the context of causation does not,
by implication, provide this Court with
authority to reject the clear precedent of the
Second Circuit. Maersk further argues that
the Second Circuit has encouraged trial
courts to apply the CSX standard. (Df. Br. at
14-15) (citing Stowe v. National Railroad
Passenger Corp. (Amtrak), 481 Fed.Appx.
701 (2012) (summary order)). However, this
circuit has continued to apply Williams as
recently as 2015, three years after Stowe. See
Coale v. Metro-North Commuter R. Co., 621
Fed.Appx. 13, 14 (2d Cir. 2015) (summary
order) (“Courts apply a more relaxed
standard of both negligence and causation to
FELA negligence claims than those arising
under common law.”). In any event, even
under the common law negligence standard
Soliman has met his burden.

In the Second Circuit, this reduced
standard also applies to proving a breach of
the duty of care. The Jones Act “places
a….duty on the [ship-]owner to provide a
reasonably safe workplace.” Oxley v. City of
New York, 923 F.2d 22, 25 (2d Cir. 1991). To
satisfy this duty, the ship-owner must
“exercise reasonable care to protect its
employees from known hazards or potential
hazards of which it should have known[.]
Marasa v. Atlantic Sounding Co., Inc., 557
Fed.Appx. 14, 17 (2d Cir. 2014). This
imposes a heightened duty of care of ship-

B.

Unseaworthiness

Under general maritime law, “[t]he
doctrine of seaworthiness establishes that
every shipowner owes an absolute and non6

Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 4
L.Ed.2d 941 (1960); see also Morton v.
Berman Enterp., Inc., 669 F.2d 89, 91 (2d
Cir. 1982). Additionally, to maintain a claim
for unseaworthiness, an injured seaman must
also prove causation. Nasser, 191 F.Supp.2d
at 314. The Second Circuit has not articulated
a clear causation standard. Some district
courts have held that traditional standards of
causation apply. See Barlas v. United States,
279 F.Supp.2d 201, 208 (S.D.N.Y. 2003).
However, I join my fellow judges in this
district in finding that a heightened causation
standard applies, which requires the
unseaworthiness to be substantial cause of
the injury. See Lisowski v. Reinauer Transp.
Co., Inc., No. 03-CV-5396 (NGG), 2009 WL
763602, at *14 (E.D.N.Y. Mar. 23, 2009); see
also Nasser, 191 F.Supp.2d at 315
(“Causation is established when it is shown
that the unseaworthiness played a substantial
part in bringing about or actually causing the
injury[.]) (internal quotations omitted).

delegable duty to seamen properly aboard its
vessel to provide a seaworthy ship.”
Martinez, 2016 WL 126449, at *2 (internal
quotations omitted.). Under the principles of
seaworthiness, “an owner has an absolute
duty to furnish a ship, crew, and
appurtenances reasonably fit for their
intended services.” Oxley, 923 F.2d at 24; see
also GTS Indus. S.A. v. S/S Havtjeld, 68 F.3d
1531, 1531 (2d Cir. 1995) (“Seaworthiness is
defined as the ability of a vessel adequately
to perform the particular services required of
her on the voyage she undertakes.”). A ship
is deemed unseaworthy when it is
“insufficiently or defectively equipped.”
Waldron v. Moore-McCormack Lines, Inc.,
386 U.S. 724, 726, 87 S.Ct. 1410, 18 L.Ed.2d
482 (1967). Additionally, it is widely
acknowledged that “a vessel being operated
by an incompetent…crew is considered
unseaworthy.” In re Complaint of Messia,
574 F.3d 119, 127 (2d Cir. 2009). A crew is
incompetent, and thus the ship unseaworthy,
when the ship’s owner fails to provide
adequate training for the task to be
performed. See Fed. Ins. Co. v. PGG Realty,
LLC, 538 F.Supp.2d 680, 697 (S.D.N.Y.
2008). In Marasa v. Atlantic Sounding Co.,
Inc., an otherwise fit vessel was found
unseaworthy,
thus
entitled
injured
crewmembers to damages, because the “crew
was not trained for the specific task…at
issue” and the “defendants failed to train any
of the men as to how to perform it safely.”
557 Fed.Appx. 14, 18 (2d Cir. 2014)
(summary order).

C.

Breach of Duty

Maersk has breached its duty of care
under both the Jones Act and general
maritime law by failing to conduct a risk
assessment of its garbage disposal procedures
and failing train its crew in safe pulling
techniques.
Under both the ISM and Maersk’s
SMS, risk assessments should be conducted
before engaging in potentially hazardous
tasks. The goal of such assessments is to
ensure that the crew has adequate training
and that sufficient protective measures are
taken to prevent injury. At trial, witnesses for
both sides were unable to articulate a bright
line rule for when a risk assessment is
necessary. Maersk argued that a risk
assessment was not necessary here because
garbage disposal is a routine task. (Df. Br. at
6-7). I am inclined to agree that it would

Liability for unseaworthiness does
not depend on negligence or the owner’s
notice of the condition, see Martinez v.
United States, 705 F.2d 658, 660 (2d Cir.
1983), and has therefore been characterized
as “liability without fault[,]” Oxley, 923 F.3d
at 25; see also Martinez, 705 F.2d at 660.
Nevertheless, the “standard is not
perfection[.]” Mitchell v. Trawler Racer,
7

More significantly, Maersk has
breached its duty of care by failing to provide
training on safe pulling techniques. That
Maersk has consistently provided training on
proper lifting is commendable. However,
lifting is not the only task that may result in
injury. It is well established that pulling may
result in serious injuries. During a pull, an
individual places pressure on their arm,
shoulder, and back. Depending on the size,
weight, and shape of the object being pulled,
this can result in a host of injuries, including
a torn rotator cuff. The garbage disposal
process presented all these risks, which might
have been noted and accounted for following
a risk assessment.

impose too high a burden on the ship’s
officers if they were required to conduct a
risk assessment before every routine task.
However, the fact that no risk assessment was
ever conducted is troubling.
Like all complicated shipboard tasks,
the method of garbage disposal aboard the
Idaho is replete with risks. Garbage aboard
the Idaho must be carried from the garbage
room, up a ladder to A-Deck, and across the
breadth of the ship. It is then stacked several
feet high in a tight space that affords
crewmembers limited mobility. This work is
often done while the ship is in motion. The
location where the bags are staged is not only
cramped, but has multiple physical
protrusions that might interfere with the
work. Once docked, crewmembers must pull
bags in a space which does not allow for
much turning or movement without fear of
falling. This situation presents many
potential risks, such as falling crewmembers
or bags, which might have been identified by
a proper risk assessment. While Maersk may
regard these risks as reasonable, it cannot
deny that they exist. Captain Willers himself
suggested that additional training might be
warranted following Soliman’s injury. That
the training he recommended was not related
to Soliman’s injury does not change the
simple truth that risks did exist and were not
accounted for.

On the same trip that Soliman was
injured, he suffered a minor injury to his left
shoulder. This injury was occurred while
pulling a mooring line. Not only are pulling
injuries common, but Soliman had suffered
such an injury to his left shoulder, while
aboard the Idaho, just prior to this accident. If
Maersk was somehow unaware of the risks,
Soliman’s prior injury should have put them
on notice. Additionally, Captain Stoller
identified and referenced multiple authorities
that consider pulling to be a potentially
dangerous activity. Maersk argues that these
authorities do not represent maritime industry
standard (Df.’s Br. at 8). This alone is not
dispositive, and this Court may consider them
for the purpose of determining negligence.
See Jones v. Spentonbush-Red Star Co, 155
F.3d 587, 595 (2d Cir. 1998) (Finding nonmandatory authorities “evidence of the
standard of care, the violation of which may
be accepted or rejected as proof of negligence
by the trier of fact according to the sum total
of all the evidence.”

Despite this, there is no indication
that Maersk ever conducted a proper risk
assessment. Rather, they created a process
without consideration for the safety of the
crew and then avoided future risk
assessments by noting that the policy was
already in place and thus routine. In the
dangerous world of maritime labor, such
willful disregard for the safety of seamen is
simply unacceptable.

Ship owners
identified dangers.
requires its officers
against identified
8

must guard against
Maersk’s own SMS
and agents to guard
risks of injury to

crewmembers. Captain Bergin, testifying on
behalf of Maersk, stated that a danger is
identified through common sense. Common
sense states, in no uncertain terms, that
pulling heavy, awkward, or unwieldy objects
can result in injury. Common sense further
dictates that pulling with a single
outstretched arm, extending directly from the
shoulder, in conjunction with a twist of the
back, is dangerous. These dangers could have
been mitigated through proper training.
D.

Act. See Pope & Talbot, Inc. v. Hawn, 346
U.S. 424, 429 (1939); see also Ammar v.
American Export Lines, Inc., 326 F.2d 955,
959-60 (2d Cir. 1964), cert. denied, 379 U.S.
824 (1964). Where a seaman’s negligence is
a contributing factor in his injury, recovery
should be reduced proportionately. Id. The
relaxed standard of causation under the Jones
Act also applies to issues of comparative
negligence. See Norfolk S. Railway Co. v.
Sorrell, 549 U.S. 158, 160 (2007) (“We
conclude that the causation standard under
FELA should be the same for both [direct and
comparative] negligence[.]”).The doctrine of
assumption of the risk does not apply. See
Socony-Vacuum Oil, 305 U.S. 424, 428, 59
S.Ct. 262, 83 L.Ed. 265 (1939).

Causation

Soliman has offered sufficient
evidence to satisfy the causation standard
under the Jones Act, but not the heightened
standard under general maritime law for
unseaworthiness. The facts establish that
Soliman suffered his injury while pulling
garbage bags into the Suez Crane net on ADeck. Maersk’s breach of duty in failing to
afford any training or guidance on safe
pulling resulted in Soliman using a dangerous
pulling technique to move the garbage bags,
with his arm extended and his back twisting.
This exposed Soliman to risk of back and
shoulder injury. While pulling, Soliman did
in fact suffer a serious shoulder injury. Based
on the facts and medical evidence presented,
it is reasonable to infer that had Soliman not
pulled a bag, placing his arm in a vulnerable
position in the process, he would not have
suffered a torn rotator cuff. This is sufficient
to satisfy the reduced causation standard
under the Jones Act. However, this is
insufficient to meet the heightened causation
standard applicable to unseaworthiness
claims.
E.

Soliman was an experienced sailor
who had served on American and Egyptian
flagged vessels for many years. During this
time, he received training in lifting and
materials handling, and instruction that he
could refuse to lift or carry any item too
heavy to transport safely. During his own
testimony,
Soliman
stated
without
reservation that he required no instruction or
training because of his experience and
familiarity with his work. Based on his
experience and knowledge, he should have
been able to appreciate the risks involved in
one armed pulling.
This knowledge is hardly abstract,
and I do not conclude that Soliman was
negligent based solely on his experience.
Rather, I note that Soliman had performed
this precise task many times before and,
following his recent left shoulder injury, was
capable of appreciating the risk of improper
pulling. Significantly, while a student at an
Egyptian sailing school, Soliman was taught
never to lift with his arm extended. This was
one of a handful of lessons he was able to
recount during testimony when asked about
his education. Despite this, Soliman pulled

Comparative Negligence

The amount of Soliman’s damages
must be reduced by any comparative
negligence on his part. The doctrine of
comparative negligence applies to the Jones
9

garbage with his arm extended and in a
vulnerable possession.

negligence, Soliman is entitled to a damage
award of $638,603.

I also reject Soliman’s contention that
the one arm pull was the only way to
accomplish the task at hand. The testimony
and photographs admitted into evidence
clearly show that a safer two armed pull was
possible. While the one armed pull may have
been more expedient, it was clearly fraught
with greater risk. Rather than apply his
experience to ensure his own safety, Soliman
simply conformed to the behavior of his
fellow crewmembers. Failing to use his own
training to minimize the risk of injury. Under
the reduced standard that governs Jones Act
negligence, Soliman was comparatively
negligent. Having reviewed Soliman’s
qualifications and failures, I conclude that he
was fifty percent at fault.

CONCLUSION

II.

For the reasons set forth above, I find
Maersk liable under the Jones Act, but not for
general maritime unseaworthiness and award
Soliman damages in the amount of $638,603.
SO ORDERED

Dated: January 26, 2016
Brooklyn, New York

Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge

Damages

It is clear that Soliman has suffered
over five years of remarkable pain and
suffering. He has undergone three operations
- all of which have failed - daily pain, and
significant restrictions to his mobility. As
such, I conclude that he has suffered
$500,000 in past pain and suffering. It is also
clear that his pain will continue for the
duration of his life. Discounting this future
pain to its present value, see Oliveri v. Delta
S.S. Lines, Inc., 849 F.2d 742, 751 (2d Cir.
1988), I conclude that he is entitled to an
additional $500,000 in future pain and
suffering. Based on the evidence presented
by Soliman’s economic expert, I conclude
that Soliman has suffered lost earnings in the
amount of $277,206. However, Soliman is
not entitled to maintenance and cure because
he has reached the maximum medical
recovery. See Messier v. Bouchard Tansp.,
688 F.3d 78, 81 (2d Cir. 2012). This
represents total damages in the amount of
$1,277,206. Accounting for his comparative
10