Rehearing and Rehearing En Banc Denied February 13, 1975. See 512 F.2d 671.
GEE, Circuit Judge:
Luke Bonura, a longshoreman, was injured aboard S/S Maiden Creek when he fell during cargo loading operations at New Orleans in December of 1969. This suit against Sea Land Service, Inc. (Sea Land), the owners of Maiden Creek, an action predicated upon both negligence and unseaworthiness of the
Sea Land contends that the trial court erred (1) in directing a verdict of "liability," (2) in failing to submit to the jury an instruction on the issue of Bonura's purported comparative negligence, and (3) in submitting to the jury an issue of loss of future wages. On his cross-appeal, Bonura maintains that the trial judge abused his discretion in ordering a remittitur. A majority of this Court concludes that the trial court committed no reversible error, and its judgment is, therefore, affirmed.
The district court held that the S/S Maiden Creek was unseaworthy as a matter of law. This holding was based upon its conclusion that reasonable men could not differ about whether working conditions aboard at the time of Bonura's accident violated two subsections of the then-current version of the Safety and Health Regulations for Longshoring.
While this Court has held that an inquiry into whether or not a ship is unseaworthy is usually a question to be decided by the trier of fact, Neveaux v. Central Gulf Steamship Corp., 503 F.2d 961 (5th Cir. 1974); Morales v. City of Galveston, 291 F.2d 97, 98 (5th Cir. 1961), aff'd, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962), it has also recognized that violations of the Safety and Health Regulations for Longshoring make a ship unseaworthy as a matter of law. Carey v. Lykes Bros. Steamship Co., 455 F.2d 1192, 1194 fn. 2 (5th Cir. 1972), and cases cited therein. It follows that a trial judge correctly directs a verdict of unseaworthiness when he finds in a particular case that all the facts and inferences point so strongly and overwhelmingly towards a violation of one or more of the sections of those regulations that reasonable men could not disagree that a violation existed. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).
We would hestitate to affirm the trial court solely on its determination that there was without question a violation of subsection (c), since there was some dispute in the evidence as to whether two crews were working at different levels in Maiden Creek's hatch. However, a detailed review of all the evidence presented compels the conclusion that Bonura was required to work at a spot—either at the edge of a hatch section or atop piled cargo—which was more than eight feet high and where no
See Land complains that it was entitled to a jury instruction on the issue of Bonura's purported comparative negligence. A majority of this Court, however, is in agreement with the district court that no evidence was presented which would, even construed most favorably to Sea Land, indicate comparative negligence on the part of Mr. Bonura would lose wages in the future. tive negligence it would have been confusing, as well as erroneous, for the trial court to have submitted an instruction on that subject to the jury. Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973).
Sea Land's final contention on appeal is that the trial court erred in submitting to the jury the issue of loss of future wages. The issue should not have been submitted, according to Sea Land, for two reasons. First, Sea Land argues, there was no evidence that Bonurs would lose wages in the future. Second, Sea Land continues more specifically, the jury was given no guidance by way of expert testimony which would enable it to estimate rationally the present value of Bonura's loss of future wages, if any. This is so, according to Sea Land, because there was no evidence concerning his work life expectancy, nor was there any actuarial evidence concerning the possible value of Bonura's loss or the accepted mathematical methods, including the use of realistic interest rates, of reducing gross loss to present value. Sea Land does not complain of the substance of the trial court's instruction itself.
As to Sea Land's first contention concerning loss of future wages, there is a simple answer. Although Bonura was working as a longshoreman at the time of trial, there was adequate evidence upon which to base the submission of an instruction on loss of wage earning capacity. There is no doubt that Bonura suffered a significant hearing loss in certain frequency ranges. There was also testimony that his fall affected his sense of balance. Both of these infirmities can reasonably be assumed to have the effect of making Luke Bonura a less desirable longshoreman. In addition, Mr. Bonura testified that since the accident there had been days on which a pain in his neck and back prevented him from reporting to work.
Sea Land's second contention on the future loss of wages issue presents more difficulty. The Third Circuit has held that, " . . . once evidence is presented and recovery is sought for future lost earnings, the jury is entitled to receive evidence and appropriate mathematical guidance on the method of reducing lost future earnings to present worth, if they are to act rationally and `not upon mere conjecture and guess.'" Ballantine v. Central Railroad of New Jersey, 460 F.2d 540, 544 (3rd Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 (1972). See also Russell v. City of Wildwood, 428 F.2d 1176 (3rd Cir. 1970) and Haddigan v. Harkins, 441 F.2d 844 (3rd Cir. 1970). However, the Third Circuit seems to stand alone in making either expert, actuarial evidence concerning the present value of future loss or mathematical guidance on the method of reducing gross loss to present value prerequisite to the submission of loss of future
Bonura on his cross-appeal complains of the $50,000 remittitur which he consented to under protest as the price for the trial court's denial of Sea Land's motion for a new trial. It has long been the rule, and there can scarcely be any doubt at this late date, that a federal district court has the power to condition the denial of a motion for a new trial upon consent to a remittitur. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This Court has held that the ordering of a remittitur under such circumstances is subject to appellate review in spite of the fact that it has been consented to, provided that the consent was given under protest. United States v. 1160.96 Acres of Land, 432 F.2d 910, 912 (5th Cir. 1970); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266, 268 (5th Cir. 1966).
In the case before us for decision we have determined, after a review of the evidence, that under these standards the trial court did not abuse its discretion in requiring a remittitur. Nor have we found credible evidence which would support an award of more than $125,000.
GEE, Circuit Judge (dissenting):
I respectfully dissent from that portion of the majority opinion which holds Sea Land was correctly denied an instruction on Bonura's comparative negligence. While I agree wholeheartedly with the holding of Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973) that a comparative negligence issue should not be submitted when there is a complete absence of evidence of negligence on the part of an injured party, I do not feel that that case governs the case under consideration. Urti is a classic "no-evidence" case;
According to his own testimony, Mr. Bonura was aware before he fell of the fact that he was working in an area where safety nets should have been rigged. He was also aware of the fact that they had not been rigged. Since he was an experienced longshoreman, a jury could reasonably have concluded that he must have known or, at least, should have known that the absence of the safety nets made his working conditions much more hazardous than they would have been had a net been properly rigged. Yet it is undisputed that Bonura neither ceased working nor demanded or even requested that a net be rigged to protect him from falling.
This Court has held that the fact that there has been a violation of the Safety and Health Regulations for Longshoring even a flagrant one, does not preclude a shipowner from benefiting from the doctrine of comparative negligence. Denenea v. Shipping Enterprise Corp., 486 F.2d 549 (5th Cir. 1973); Denny v. Jugoslavenska Oceanska Plov., Kotor Yugoslavia, 455 F.2d 1277 (5th Cir. 1972); Phipps v. S/S Santa Maria, 418 F.2d 615 (5th Cir. 1969); Manning v. M/V Sea Road, 417 F.2d 603 (5th Cir. 1969). We have held further that working in an area made unsafe by a violation of the regulations can itself be negligence, if the worker has knowledge of the violation and of the dangerous condition which it has created. See, e. g., Phipps v. Santa Maria, supra, 418 F.2d at 616; Denenea v. Shipping Enterprise Corp., supra, 486 F.2d at 550. Moreover, it is generally accepted that the failure to inform superiors of unseaworthy conditions so that these conditions might be corrected can, also, under certain circumstances, be considered negligence. Mroz v. Dravo Corp., 429 F.2d 1156, 1164 (3rd Cir. 1970); DuBose v. Matson Navigation Co., 403 F.2d 875 (9th Cir. 1968); see also Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 124, 34 L.Ed.2d 128 (1972). But see Rivera v. Farrell Lines, Inc., 474 F.2d 255 (2nd Cir.), cert. denied, 414 U.S. 822, 94 S.Ct. 122, 38 L.Ed.2d 55 (1973) which would restrict this doctrine to unsafe conditions which are not open and obvious.
Given the state of the law as outlined above, I believe that there was a plain jury question as to Bonura's comparative negligence. Specifically, I believe that the jury should have been allowed to decide whether, considering all the facts of this case, a reasonable man with Bonura's experience in longshoring would have continued to work without a safety net having been rigged or would have failed to inform his superiors of the known hazard and demanded, or at least requested, that it be eliminated. It is ironic that the same want of a net, a want equally apparent to both sides, should be held at once to inculpate the defendant and exculpate the plaintiff—both beyond the possibility of reasonable disagreement. Bonura admits that he knew the net should have been there but was not. The condition obviously was dangerous. Our holding, and that below, requires a determination that reasonable men could not differ whether his continuing to work under these conditions, without so much as a request that mandated precautions for his own safety known to him be observed, was prudent. I cannot do so.
29 C.F.R. (Labor) has been modified since 1969, but this section has remained unchanged. It is, however, now 29 C.F.R. § 1918.32.
Mr. Urti had not selected, provided or rigged any of the equipment used. Neither he nor the bosun had noticed any visible defects in the manila line. Although the job which he was assigned to perform was usually done by two men, there was no reason to assume that Urti knew or had reason to know that his working alone created any undue hazard. There was no evidence that Mr. Urti gave improper instructions to the bosun which might have caused excessive strain on the breasting line. In short, although it turned out that Urti was working under what proved to be unsafe conditions, there was no evidence that he helped to create the conditions or that he was aware of the potential hazards and ignored them. He was simply doing a job which he was ordered to do. He had no reason to question the appropriateness of his orders.