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Sims v. Wood Towing2/16/2000
AFFIRMED IN PART; REVERSED IN PART.
Plaintiff, Derrick Sims, appeals a judgment in a maritime personal injury case which dismissed his suit against defendant, Wood Towing Co., Inc. We affirm in part and reverse in part.
On December 10, 1996, plaintiff was employed by defendant as one of two deck hands assigned to the M/V Perry Lobrano, a towboat captained by Melvin Williams. Plaintiff's job duties included untying and tying the wire cables connecting the grain barges to each other so that the barges could be moved up and down the river for cleaning and for return to the grain elevators for loading. The particular area in which plaintiff was working was the Kenner Fleet, divided into the upper and lower fleet, the wash dock or "condo" and the fleet building area. Loaded barges were in the upper fleet area.
After the barges are unloaded, they are moved to the lower fleet area. Both the upper and lower fleet are located above or north of the condo area. The lower fleet generally contains the dirty barges waiting to be moved down, or south, to the condo, although, occasionally, clean barges are docked there. After being cleaned, the barges are moved down to the fleet building area, where a group of barges are tied together for transport north to be loaded again. The barges are stored side by side in rows projecting into the river called tiers.
On the evening in question, the towboat and the two deck hands were engaged in these operations. The deck crew was equipped with headsets so that they were in constant communication with the towboat Captain. The workers were "stripping a condo", which means moving a barge from the wash dock and taking (or dropping) it down to the northbound tow in the fleet building area. Plaintiff's job was to loosen the head lines, also referred to as wires or cables, which faced upriver. His co-worker, David Christen (Christen), was handling the stern lines, which were on the down river side of the barge. The parties dispute whether plaintiff suffered two distinct accidents. However, plaintiff asserts that he hurt his back twice that night from pulling and straining to loosen two head lines that were stretched tight or had become "filed down" or pinched on a caval. A filed down line often must be cut with an ax to release it. Neither the Captain nor Christen remembered plaintiff complaining about hurting his back the first time. Christen witnessed the second incident in which plaintiff fell down in pain. Plaintiff notified the Captain about his injury and went to the towboat where he completed an accident report. He then left work and drove to the West Jefferson General Hospital emergency room, where he was treated for a lumbar strain/sprain. In conformity with maritime law, plaintiff was paid cure, his medical expenses, from the date of the accident until April of 1997, at which time the treating physician released plaintiff to work.
Plaintiff subsequently filed suit on November 11, 1997 under the Jones Act, which allows an injured seaman to bring a negligence suit against his employer, 46 U.S.C.App. ยง 688 (1994), for unseaworthiness and for maintenance and cure. Trial was held on February 9 and 10, 1999. Judgment was rendered in favor of defendant on April 19, 1999. Although the trial judge found that an injury occurred, he determined that plaintiff failed to prove the employer negligent or the vessel unseaworthy. The trial judge also found that plaintiff is not entitled to maintenance since he did not live on the vessel. He further determined that plaintiff reached maximum medical improvement in April of 1997, terminating his right to cure.
On appeal, plaintiff asserts that the trial judge erred in failing to
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