Opinion
No. 98-1747 c/w, 98-2196.
February 12, 2001.
This cause came for bench trial on a previous date. The Plaintiff, Daryl Henry, sued the Defendants, Candy Fleet Corporation ("Candy Fleet"), Security Insurance Company of Hartford ("Security Insurance"), and Chevron USA Inc. ("Chevron"), claiming: (1) that he sustained injuries due to Candy Fleet's negligence, fault, and violation of governmental regulations; (2) that the unseaworthiness of the CANDY LADY, a vessel owned by Candy Fleet under time charter to Chevron, and the vessel's equipment, gear, crew, and work method also were responsible for his injuries; (3) that Chevron's vessel-related negligence in connection with the operation of its crane in unloading from and/or loading onto the CANDY LADY caused injury to him, either singularly or in combination with the previously alleged negligence of Candy Fleet; and (4) that he is entitled to recover admiralty maintenance and cure, actual damages, and attorney's fees incident upon the collection of said maintenance and cure, because of the wrongful conduct of Candy Fleet and Security Insurance in terminating maintenance and cure payments before he reached maximum medical improvement.
The Court, having heard the testimony at trial, and having considered the record, the evidence, the applicable law, and the memoranda submitted by the parties, now makes the following findings of fact and conclusions of law as required by Rule 52 of the Federal Rules of Civil Procedure. To the extent that any conclusion of law is deemed to be a finding of fact, it is adopted as such; likewise, any finding of fact that is deemed to be a conclusion of law is so adopted.
FINDINGS OF FACT
With regard to the Court's factual findings, if no exhibit is specifically referenced, that particular finding is based upon the testimony given by various witnesses at trial. In addition, the Plaintiff's exhibits were admitted into evidence as those "to which there is no objection" and as those "to which there is objection." For the sake of simplicity, the Court will refer to these exhibits as "PNO" and "PO," respectively.
1. The Plaintiff was employed as a deckhand aboard the CANDY LADY during June 1997. The vessel was owned by the Plaintiff's employer, Candy Fleet, and was under time charter to Chevron. [Pre-Trial Order, pp. 30-31].
2. The blanket time charter from Candy Fleet to Chevron requires that Candy Fleet obtain protection and indemnity (P § I) insurance, making Chevron an additional insured, and that the policy delete any provision for contractual limitation of liability of the insurer. [Exhibit PNO-18, p. 404].
3. The P § I insurance policy contains no provision for limitation of liability of Security Insurance as the insurer of Candy Fleet. [Exhibit PNO-17, pp. 398-401].
4. The Plaintiff was involved in two accidents which took place aboard the CANDY LADY. The first occurred on June 5, 1997, and the second on June 10, 1997.
5. The June 5, 1997 accident ("the first accident") occurred when the Captain of the CANDY LADY, Christopher E. Weiss, ran the vessel aground at 10:45 P.M. in the Baptiste Collette Pass, a channel connecting the Mississippi River with the Gulf of Mexico near Venice, Louisiana.
6. Captain Weiss admitted that "it was my fault . . . I missed the deep water and got in the shallow water" in entering the Baptiste Collette Pass and passing a shrimp boat.
7. The Mate aboard the CANDY LADY, Gary Murroughs, testified at trial that the vessel lacked a depth finder.
8. Weiss admitted that the grounding was "a pretty violent impact, a pretty good lick." He stated that the CANDY LADY bounced once and then came to a stop. Murroughs described the grounding as a "bunny hop."
9. Murroughs further stated that the CANDY LADY was unable to get itself off by its own power and had to be pulled off by another boat. Although the CANDY LADY continued its run into the Gulf of Mexico and back to its base in Venice, Louisiana, it did so having "BENT 3 WHEELS." [Exhibit, D-18].
10. Murroughs explained that he and the other two hands aboard (the Captain and the Engineer) were not injured because they were in the wheelhouse where they saw from the proximity of the bank that a grounding was imminent. That vantage gave the Captain and the Engineer time to brace themselves for the impact. However, the Plaintiff was below, not in a position to see what the others saw, and as a consequence, he was unprepared for the impact.
11. The Plaintiff was injured in the first accident ("the initial injury") when he was thrown by the grounding a distance of approximately twenty (20) feet into a steel bulkhead. The Plaintiff's right knee struck the bulkhead, causing immediate pain and swelling in his knee.
12. The Plaintiff had no pre-existing injury to his right knee.
13. The Court hereby determines that no negligence on the part of the Plaintiff caused the first accident.
14. Soon after the vessel ran aground, Murroughs went below and saw the Plaintiff on the floor at the bow bulkhead. Murroughs helped the Plaintiff up the stairs to the wheelhouse at which time Weiss acknowledged his complaint of injury by offering to put him ashore for medical attention.
15. The Plaintiff hoped the initial injury was not serious and that the pain and swelling would subside. He asked Weiss to allow him to continue working to see if this would be so, and the Captain agreed and did not write an accident report at that time.
16. The next morning, June 6, 1997, Weiss telephoned Candy Fleet's office and told personnel there of both the grounding and of the Plaintiff's complaint of injury and his wish to continue working.
17. For the next three days, the Plaintiff continued to work, but he was in increasing pain.
18. At approximately 11:30 AM. on June 10, 1997, the Plaintiff was involved in another accident ("the second accident") aboard the vessel.
19. That day, the CANDY LADY was due for a crew change at the Venice, Louisiana dock, but Chevron, by virtue of its authority of the blanket time charter directed the vessel to proceed to a platform to receive a large generator pump.
20. When the CANDY LADY arrived at the platform it was raining, and the seas were between six and ten feet.
21. Both Weiss and Steve Marcrum, a port captain with Candy Fleet since May 1989, testified that operations in six to ten-foot seas are not only common but safe.
22. Upon the vessel's arriving at the platform, Chevron sent no card-certified, or any other riggers onto the vessel to handle the cargo transfer. Therefore, Weiss assigned the Plaintiff to do the rigging on the vessel's deck alone.
23. Although he was working alone, the task assigned to the Plaintiff, unhooking cargo to be loaded aboard the vessel, constitutes an integral part of a deckhand's job and is not inordinately difficult or unsafe.
24. The large pump, measuring approximately eight feet high, four feet wide, six feet long and weighing approximately 20,000 pounds, was lowered to the vessel's deck without incident. However, after removing the crane's shackles, cables, and stinger hook from the crane's speedball, the Plaintiff began straightening the shackles and cables. Although he had a valid purpose for doing so — in order that the shackles and cables would not get tangled up with or wrap around anything or anyone when lifted — the Plaintiff's preoccupation caused him not to notice the rapidly approaching speedball.
25. Captain Weiss did not specifically order the Plaintiff to straighten the shackles and cables.
26. When the Plaintiff realized he was standing in the path of the approaching speedball, as a reflex he immediately signaled for the Chevron crane operator to lift the ball. At the last instant, the Plaintiff reached out with his right hand to grab the cable and keep the speedball from hitting him. The cable, which was stiff with the weight of the speedball, put a small cut on one of the Plaintiff's right fingers, and the speedball hit the outside of the Plaintiff's right knee.
27. When the speedball hit the side of the Plaintiff's right knee it gave way, minimizing the force of the impact, unlike the first accident in which that same knee had absorbed the full force of the blow against the steel bulkhead.
28. Captain Weiss had the Plaintiff lie down in the cabin after the second accident until the CANDY LADY reached shore. Weiss awakened Murroughs and told him to take the stem controls while Weiss took the Plaintiff's place and finished the task of sending the shackles, cables, and hook back to the crane operator.
29. The crane operator failed to dip the crane's speedball into the water to minimize its swinging, however, each of the three parties involved must bear responsibility for the second accident. The Court hereby finds that forty-five (45%) percent of the fault for the second accident rests with the Plaintiff, thirty-five (35%) percent rests with Chevron, and the remaining twenty (20%) percent rests with Candy Fleet.
30. When the CANDY LADY returned to Venice, Louisiana, the Plaintiff was transported by truck to Morgan City, Louisiana, and on the next day, June 11, 1997, was examined by Dr. Walter H. Daniels. Dr. Daniels diagnosed the Plaintiff as having a "sprained knee" and released the Plaintiff to return to light work. [Exhibit PNO-3, p. 93].
31. The Plaintiff then drove himself from Morgan City to his home in Florida, a trip of approximately five hours.
32. The Plaintiff drove back to Morgan City a few days later, and he was able to work for Candy Fleet driving a truck during the following week.
33. On June 24, 1997. the Plaintiff again was examined by Dr. Daniels. At that time, the doctor's diagnosis was a "sprained knee — possible internal knee injury." [Exhibit PNO-3, p. 93].
34. To date, the Plaintiff has been examined by numerous doctors and orthopedic specialists. Because those physicians have reached varied (and in some instances diametrically opposed) conclusions regarding the Plaintiff's injured knee, the Court must make credibility determinations. The Court affords the opinions of Dr. Charles A. Roth great weight. Dr. Roth is an orthopedic surgeon in Pensacola, Florida, who has examined the Plaintiff on many occasions. Since the Plaintiff has visited Dr. Roth most often since sustaining the two above-mentioned accidents, and since the Plaintiff remains under his primary care and treatment, the Court considers Dr. Roth to be the "treating physician."
35. After again making the five-hour drive to Pensacola, the Plaintiff consulted Dr. Roth, who found no swelling and no pain in the area of the Plaintiff's patella. However, noting that the Plaintiff walked with a "severe limp" and suspecting a medial meniscus tear, Roth performed arthroscopic surgery on the Plaintiff on August 4, 1997. [Exhibit PNO-4, p. 99-103].
36. The above-mentioned surgery was authorized and paid for by Candy Fleet and its insurer.
37. Candy Fleet loaned the Plaintiff a total of $2,500 in three separate installments on August 30, September 24, and October 17, 1997. [Exhibit PNO-25, pp. 492-94]. Each of the three promissory notes the Plaintiff signed in exchange for said loans states that the principal amount is payable "with interest at a rate of 5% per annum on the unpaid balance from date until paid." Id. According to the Court's calculations, using a simple interest formula, at the present time the Plaintiff owes Candy Fleet a total of approximately $419 in interest on the loans. That interest amount is comprised of approximately $171 in interest on the $1,000 loan made on August 30, 1997; $167 in interest on the $1,000 loan made on September 24, 1997; and $81 in interest on the $500 loan made on October 17, 1997.
38. The outpatient arthroscopic surgery performed by Dr. Roth revealed that the Plaintiff had nothing more than "mild synovitis in the right knee." [Exhibit PNO-4, p. 103]. Roth's notes indicate that "[o]therwise, the [Plaintiff's] knee had a relatively normal appearing exam. The meniscal tissues were normal. The anterior cruciate was also normal." Id.
39. On the Plaintiff's fifth successive visit to Dr. Roth after the surgery, he was diagnosed as having "reached maximum medical improvement." [Exhibit PNO-4, p. 104]. That diagnosis was made on November 11, 1997. Id.
40. On January 6, 1998, Dr. Roth indicated in his notes that he felt the Plaintiff "does have a permanent impairment rating even though we had previously not anticipated such." [Exhibit PNO-4, p. 108]. However, Roth again indicated that he thought the Plaintiff "ha[d] reached maximum medical improvement." Id.
41. On March 4, 1998, Dr. Roth first indicated that the Plaintiff may have reflex sympathetic dystrophy ("RSD"), a disease which affects the sympathetic nerve chain. [Exhibit PNO-4, p. 110]. However, Dr. Roth was uncertain of his diagnosis and specifically requested that a second opinion be authorized. Roth stated that he "would like [the Plaintiff] to be evaluated by a Pain Management doctor for the possibility of" confirming his diagnosis. Id.
42. Candy Fleet and Security Insurance paid the Plaintiff $5,025 in maintenance and $10,242 in cure. The last payment of maintenance was on March 16, 1998, and the last payment of cure was on May 15, 1998. [Exhibit PO-14, pp. 196-97].
43. With regard to the second accident, Dr. Roth has opined that it " certainly aggravated [the Plaintiff's] initial injury but I cannot apply any significant percentage that contributes to his current problem." [Exhibit PNO-4, p. 129] (emphasis added).
44. Because an apportionment of injury is critical to the disposition of the above-captioned consolidated matters, the Court must make such a determination and hereby finds that the second accident is responsible for twenty (20%) percent of the Plaintiff's current problems with his right knee.
45. On January 26, 1999, Dr. Roth opined that he "[does] not believe [the Plaintiff] has reached maximum medical improvement if one considers that pain management is still a viable option." [Exhibit PNO-4, p. 129]. Roth thinks "it is certainly possible that a sympathectomy may improve [the Plaintiff's] function." Id. (emphasis added).
46. Dr. Roth has opined that a sympathectomy would not cure the alleged RSD because "the history of Reflex Sympathetic Distrophy's being cured at this late point in the disease process is not good."
47. The Plaintiff became eligible for Florida Medicaid/Medipass benefits by virtue of the birth of his son on December 8, 1998, and thereby, from February 24 to April 1, 1999, he underwent six epidural steroid nerve-block injections, one per week, with concomitant physical therapy leg-straightening sessions.
48. By the Plaintiff's own admission, these procedures did not alleviate his pain or cure his ailment.
49. Dr. Bernard L. Manale mentioned the possibility of RSD after his initial examination of the Plaintiff. At that time however, Dr. Manale indicated that it was unlikely that the Plaintiff had this disease due to the absence of findings upon examination. Dr. Manale later indicated that he felt it was probable that the Plaintiff had RSD, but did so without any additional examination of the Plaintiff. Rather, he indicated that this finding was based solely upon the fact that the bone scan and thermogram were positive, although he admitted that there are various other causes for those diagnostic tests to be positive. Dr. Manale admitted that the Plaintiff does not have the normal symptomatology of RSD.
50. The testimony of Dr. David G. Kline, the head of the Department of Neurosurgery at LSU Medical Center and the only neurosurgeon testifying in this case, also must be given great weight since RSD is described by the various medical testimony as a disease which affects the sympathetic nerve chain. Dr. Kline went into great detail regarding the normal symptoms of RSD and persuasively testified that the Plaintiff does not have the disease or the symptomatology which can be used for such a diagnosis.
51. Dr. Kline indicated that a bone scan may or may not be diagnostic depending on which phase of RSD a patient is in. Additionally, Dr. Kline pointed out that a bone scan, which simply measures blood supply to a particular area can be positive due to an injury or body changes from an injury as opposed to any changes in the sympathetic system. Furthermore, Dr. Kline opined that nerve blocks are diagnostic of RSD if the relief of pain is the result of a block of only the sympathetic chain.
52. Dr. Chad W. Millet opined that blocks of several areas, all of which temporarily relieve the Plaintiff's pain, would actually be evidence that RSD is not the Plaintiff's problem.
53. The testimony of the various physicians lead this Court to reject the contention that the Plaintiff suffers from RSD. Although many of the factors which the Court relies upon in reaching this finding are set out above, the three most important of these are the facts that: one, the Plaintiff was not diagnosed with the disease by either Dr. Roth or Dr. Manale until approximately nine months after the accidents; two, that the Plaintiff does not have the typical characteristic symptoms of the disease, as admitted by all of the physicians testifying in this case; and three, that the single most qualified physician to provide an opinion regarding this disease, Dr. David Kline, has given an unconditional, forthright opinion that the Plaintiff does not suffer from RSD.
54. On the other hand, Dr. Roth has reported that "[i]t is a reasonable medical probability that Daryl is functionally totally and permanently disabled from performing the duties of his heavy laboring as a deckhand on an offshore oilfield supply vessel." [Exhibit PNO-4, p. 130].
55. The Court hereby finds that as a result of the injuries-in-suit, the Plaintiff is totally and permanently disabled from performing the duties of a seaman or construction laborer. However, consistent with Dr. Roth's additional conclusions, the Plaintiff is not incapable of performing sedentary work.
56. At the time of the Plaintiff's injuries he was earning $64 per day at sea, and fringe benefits of $7.14 per day for shipboard meals, $65.72 per month for hospitalization insurance, and a year-end bonus of $7 per day for each day worked during the year. In addition, the Plaintiff's work schedule alternated between 28 days "on"/7 days "off," and 28 days "on"/14 days "off."
57. Dr. George R. Rice testified that according to the Bureau of Labor Statistics, the Plaintiff's work life expectancy as of the trial date was 32.94 years.
58. At trial, Dr. Rice testified that taking an average of the Plaintiff's work schedule at the time of the injuries-in-suit, the present value of the Plaintiff's after-tax future earning capacity as a seaman is $370,867. Dr. Rice calculated said amount by assuming that the Plaintiff would earn $64 per day at sea plus the above-mentioned $7 per day year-end bonus over his work life expectancy of 32.94 years, and then by discounting the resulting future value by a discount rate of three (3%) percent.
59. Using the same calculation formula, Dr. Rice testified that the present value of the per diem payment of $7.14 per day which the Plaintiff received for meals is $46,133. [Exhibit PNO-13, p. 279].
60. Also using that formula, Dr. Rice testified that the present value of hospitalization insurance payments of $131.45 per month is $34,166. Id. As indicated in Finding of Fact 56 above, the employer-paid portion of the hospitalization insurance amounted to $65.72 per month, half of the amount used by Dr. Rice in his calculation. Accordingly, using simple mathematics, the Court determines that the present value of the employer-paid portion of the hospitalization insurance is $17,083.
61. The Court hereby takes judicial notice of the fact that a person earning the minimum wage of $5.15 per hour would earn gross wages of approximately $10,700 over the course of one year if he or she worked a standard 40-hour work week. For a married individual filing a joint tax return, such as the Plaintiff is and does, there would be no income tax due on such an amount.
62. Dr. Rice also testified that the factor for discounting every dollar of future annual earnings over a work life expectancy of 32.94 years is 20.75. Accordingly, the present value of annual earnings of $10,700 per year over the Plaintiff's work life expectancy is $222,025.
63. The Court now turns to the issue of the Plaintiff's lost wages from the time of injury to the time of trial. The Plaintiff worked as a store clerk for Conoco Stores in April and May, 1998. During that time he earned $769 in wages. By the Plaintiff's own admission, he was able to perform the duties of that position, and upon questioning by defense counsel, the Plaintiff specifically denied that his employment was terminated due to his physical condition or inability to perform his job. Rather, the Plaintiff indicated that he was fired from that job for telling a racist joke.
64. Assuming the deckhand income levels as indicated above, Dr. Rice calculated the past after-tax earning capacity of the Plaintiff to be $42,864.
65. Again, the Court takes judicial notice of the fact that a person earning the minimum wage of $5.15 per hour would have earned gross wages of approximately $21,400 during the two year period between November, 1997 and the date of trial.
CONCLUSIONS OF LAW
1. It is undisputed that the Plaintiff was a Jones Act seaman at the time of the above-mentioned accidents. [Pre-Trial Order, pp. 30-31].
2. It is also undisputed that the Plaintiff was injured in the course and scope of his employment with Candy Fleet and his work upon the CANDY LADY. [Pre-Trial Order, pp. 30-31; and Exhibits D-16, D-17, and D-18].
3. The United States Code provides that "[i]n respect of . . . injury the privity or knowledge of the master of a . . . vessel . . ., at or prior to the commencement of each voyage, shall be deemed conclusively the privity or knowledge of the owner of such vessel." 46 U.S.C. app. § 183(e). Therefore, the matters known by Captain Weiss prior to the commencement of the voyages on which the Plaintiff suffered injury are within the privity and knowledge of Candy Fleet as to any unseaworthiness and negligence which caused the Plaintiff's damages.
4. Liability for unseaworthiness arises from lack of seaworthy equipment. Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 499 (1971); Waldron v. Moore-McCormack Lines. Inc., 386 U.S. 724, 728 (1967); The Osceola, 189 U.S. 158, 175 (1903).
5. General maritime law unseaworthiness of the CANDY LADY, Jones Act negligence of Candy Fleet, and Candy Fleet's failure to provide a safe workplace caused the first accident and the Plaintiff's initial injury.
6. The Louisiana Supreme Court recently held that
since the duty to provide a safe place to work allocates substantial risks of maritime employment to the employer, identical conduct is not demanded of the employer and the employee. . . . The law allocates different risks to different parties, and that allocation forms parts of the reasonableness equation in the negligence determination. A defendant's standard of care, like that of the plaintiff, varies according to the conduct in which the party is engaged. . . . The determination of who had the duty to eliminate or minimize the risks of an injury-causing hazard is central to the negligence inquiry. The duty on the employer to make the work place safe may, in a sense, impose a greater duty on the employer than the duty on the seaman to use reasonable care for his own safety . . . . But irrespective of the duty imposed, the standard of care on both an employer and a seaman is that of a reasonable person in the same position under like circumstances.Vendetto v. Sonat Offshore Drilling Co., 725 So.2d 474, 479 (La. 1999) (emphasis added).
7. A time charterer such as Chevron, which does not man, victual, or navigate a vessel, is not entitled to limit its liability.Cullen Fuel Co. v. W.E. Hedger. Inc., 290 U.S. 82, 88-89 (1993).
8. Without regard to the fault attributed to the Plaintiff (see Finding of Fact 29, supra p. 7), the second accident was caused by the Jones Act negligence of both Candy Fleet and Chevron.
9. Maintenance and cure are owed to a seaman automatically without regard to fault for injuries and/or illnesses arising during the course of his service aboard the vessel, unless the injury or illness resulted from his engagement in gross misconduct. Aguilar v. Standard Oil Co. of N.J., 318 U.S. 724, 730-33 (1943); Calmar Steamship Corp. v. Taylor, 303 U.S. 525, 527-29 (1938).
10. Maintenance and cure continues until such time as the seaman's incapacity is actually diagnosed to be permanent. See Farrell v. United States, 336 U.S. 511 (1949); and Vella v. Ford Motor Co., 421 U.S. 1 (1974).
11. Maximum medical improvement ("MMI"), as defined by the United States Supreme Court and the Fifth Circuit Court of Appeals, is the point beyond which it is not reasonably possible that medical treatment will "reduce [the amount of the seaman's] disability," be "curative," "better the seaman's condition," or "improve [his] health;" until that time, he has not reached MMI. Vella v. Ford Motor Co., 421 U.S. 1, 5 (1974); Gaspard v. Taylor Diving § Salvage Co., 649 F.2d 372, 374 n. 3 (5th Cir. 1981); and Pelotto v. L § N Towing Co., 604 F.2d 396, 400 (5th Cir. 1970).
12. However, a vessel owner need not pay for medical treatment which will be "only palliative" or "only reduce his pain."Stanovich v. Jurlin, 227 F.2d 245, 246 (9th Cir. 1955).
13. When there are ambiguities or doubts as to a seaman's right to receive maintenance and cure, they are to be resolved in favor of the seaman. Vaughan v. Atkinson, 369 U.S. 527, 532 (1962).
14. However, the "weight to be accorded true opinion evidence is always for the jury or other trier of the facts." Elliott v. Massachusetts Mut. Life Ins. Co., 388 F.2d 365-66 (5th Cir. 1968) (citing Mound Co. v. Texas Co., 298 F.2d 905, 910 (5th Cir. 1962), and New York Life Ins. Co. v. Johnston, 256 F.2d 115, 118 (5th Cir. 1958)).
15. Conflicting diagnoses and prognoses of various physicians present a question to be determined by the trier of fact in connection with the entitlement to maintenance and cure benefits and whether an employer's termination of maintenance and cure benefits was arbitrary or capricious. Tullos v. Resource Drilling. Inc., 750 F.2d 380 (5th Cir. 1985).
16. Payments of maintenance and cure maybe terminated when it is determined that the seaman has reached MMI. Considering the findings of fact made above, this Court concludes that the Plaintiff reached MMI on November 11, 1997. The decision to terminate the maintenance and cure payments to the Plaintiff was not arbitrary or capricious; Candy Fleet and its insurer were justified in accepting the medical opinions of Dr. David Kline and Dr. Chad Millet. Therefore, the Plaintiff's claim for maintenance and cure and for damages for failure to pay the same must be denied.
17. Comparative negligence applies to reduce a seaman's recovery on a Jones Act claim and an unseaworthiness claim. Miles v. Melrose, 882 F.2d 976 (5th Cir. 1989), aff'd 498 U.S. 19 (1990).
18. The effect of finding negligence on the part of a seaman seeking recovery in a seaworthiness action or a Jones Act claim is only to reduce damages proportionately, but not to bar recovery. A seaman's negligence will not defeat his claim under the Jones Act or general maritime law but may be considered as comparative negligence to mitigate damages in proportion to the degree of his negligence. Contributory negligence, however gross, does not bar recovery but only mitigates damages. Id.
19. A seaman is obligated under the Jones Act to act with ordinary prudence under the circumstances. The circumstances of a seaman's employment include not only his reliance on his employer to provide a safe work environment, but also his own experience, training, or education. The reasonable person standard, therefore, and a Jones Act negligence action becomes one of the reasonable seamen in like circumstances. To hold otherwise would unjustly reward unreasonable conduct and would fault seamen only for their gross negligence. Crawford v. Falcon Drilling Co., 131 F.3d 1120 (5th Cir. 1997); and Gautreaux v. Scurlock Marine. Inc., 107 F.3d 331 (5th Cir. 1997).
20. An award for lost wages under the general maritime law must be based upon after-tax earnings. Myers v. Griffin-Alexander Drilling Co., 910 F.2d 1252 (5th Cir. 1990).
21. Future lost wage calculations in maritime cases are to be performed in compliance with the method set forth in Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir. 1983). That case established a four step process for determining lost wages as follows: one, estimate the loss of worklife resulting from injury; two, calculate the lost income stream; three, compute the total amount of damages; and four, discount the total amount to its present value. See id. Lost income stream is calculated by adding gross income at the time of injury to other income such as fringe benefits, then subtracting required payments by the wage earner such as taxes and work expenses. The paramount concern of a court in awarding damages for lost future earnings is to provide the injured seaman with a sum of money that will, in fact, replace the money that he would have earned. See id.
22. Under the circumstances of the case at hand, the Court finds that were the Plaintiff fault-free, he would be entitled to an award of $55,000 for general damages related to his pain and suffering from the injuries-in-suit.
23. Since the Plaintiff is capable of performing sedentary work (see Finding of Fact 55, supra p. 13), the awards for both past and future lost income must be reduced by the income the Plaintiff could have earned in the past and can earn in the future.
24. Based on Findings of Fact 64 and 65, supra p. 15, the Court determines that were the Plaintiff fault-free, he would be entitled to an award of $21,464 for lost past income.
25. Similarly, based on Findings of Fact 58, 59, 60, and 62, supra pp. 13-14, the Court determines that the Plaintiff would be entitled to an award of $212,058 for the loss of future income, had he been free from fault for the injuries-in-suit.
26. However, based on Findings of Fact 29 and 44, supra pp. 7 and 10, respectively, the awards for lost past income and loss of future income as well as the award of general damages must be reduced by nine (9%) percent.
27. Accordingly, the Plaintiff is entitled to an award of $19,532 for lost past income and $192,973 for loss of future income. The Plaintiff also is entitled to an award of $50,150 in general damages for his pain and suffering.
28. Therefore, the total amount of money to be awarded to the Plaintiff is $262,555. Based upon Findings of Fact 29 and 44, supra pp. 7 and 10, respectively, Candy Fleet is responsible for 84/91 of the total, or $242,358. Chevron is responsible for the remaining 7/91, or $20,197.
29. However, Candy Fleet is entitled to an offset of $2,919 for the money it loaned to the Plaintiff from August through October, 1997. See Finding of Fact 37, supra p. 9. Accordingly, the total amount of money owed to the Plaintiff by Candy Fleet is $239,439.