Luke Bonura, Jr., Cross-Appellant v. Sea Land Service, Inc., Cross-Appellee, Atlantic & Gulfstevedores, Inc., Intervenor

505 F.2d 665
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 13, 1975
Docket74-1012
StatusPublished
Cited by83 cases

This text of 505 F.2d 665 (Luke Bonura, Jr., Cross-Appellant v. Sea Land Service, Inc., Cross-Appellee, Atlantic & Gulfstevedores, Inc., Intervenor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

Opinions

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 [667]*667vessel, followed. The trial court found as a matter of law that Maiden Creek was unseaworthy and that her unseaworthiness caused Bonura’s injuries. He therefore directed a verdict of liability against Sea Land and submitted only the issue of damages to the jury. The jury returned a verdict of $175,000 for Bonura. After receiving the verdict the trial court indicated that it intended to grant a new trial unless Bonura would remit $50,000 of the jury’s award. Bon-ura consented, and a final judgment of $125,000 was entered. From this judgment Sea Land has appealed, and Bon-ura has cross-appealed.

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 Bon-ura’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.1 Specifically, the trial court believed that there could be no doubt that subsections (b) and (c) of 29 C.F.R. § 1504.32 had been violated.

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 [668]*668protective safety net had been rigged.2 Since the failure to provide a safety net under such circumstances is a clear violation of subsection (b), the Maiden Creek was unseaworthy.

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 Bon-urs 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 [669]*669wages to the jury. The Sixth, Seventh and Eighth Circuits have all rejected this approach. They have not conceded that “the application of the present worth rule is beyond the understanding and capabilities of most lay persons serving on juries,” Ballantine, supra,

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Bluebook (online)
505 F.2d 665, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luke-bonura-jr-cross-appellant-v-sea-land-service-inc-ca5-1975.