(iii) during the examination Nasser had no
problem with straight leg raises; and (iv) Nasser's legs fail to evince a
loss of muscle tone or any evidence of muscle atrophy. Moreover, Nasser's
alleged lack of sensation to soft touch in the legs is not consistent
with radiculopathy because it does not follow a known dermatol pattern
and it is bilateral, which is inconsistent with a radiculopathic or
herniated disc. Even assuming that Nasser was suffering from a
radiculopathy, Dr. Cohen opines that it would have to be present at the
L5 level in order to cause the symptoms complained of.
Dr. Cohen concurs with the diagnoses of Drs. Berlin, Stein, Goldberg
and the Ipswich Hospital records all of which conclude that Nasser did
not sustain a significant neurologic deficit. The Court substantially
credits Dr. Cohen's testimony.
As is evident, this case carries with it a history of medical treatment
that is long, tortured, duplicative, contradictory and not necessarily
dispositive of much. After carefully reviewing all of the testimony and
evidence the Court finds that Nasser does not suffer from a radiculopathy
at any level in his spine nor does Nasser suffer from stenosis or any
other nerve disease. This is not to say that Nasser is not experiencing
pain as a result of his injuries. The Court only finds that Nasser's
claims of pain are exaggerated. Upon review of the evidence, the
testimony, and Dr. Cohen's testimony in particular, the Court is of the
opinion that Nasser suffers from a severe contusion of the lower back and
post-trauma disorder. This finding is consistent with the findings of
Ipswich Hospital, the diagnoses of Drs. Slee, Berlin, Stein and Goldberg,
and most importantly both MRIs.*fn5
II. Conclusions of Law
With its fact finding accomplished, the Court endeavors to apply those
facts to the applicable principles of law. The Court finds defendant
liable to Nasser in negligence. The Court also dismisses the
unseaworthiness cause of action as Nasser has failed to prove that the
rope that struck him was not reasonably fit for its intended purpose or
that its condition caused his injuries. Rather, his injury was caused by
the negligence of a fellow servant. Lastly, the Court declares that under
the maximum medical recovery date Nasser is not entitled to any
maintenance and that defendant must provide cure that it withheld for the
period of December 31, 1998 to November 21, 1999.
A. The Jones Act
According to the Jones Act, a "seaman who shall suffer personal injury
in the course of his employment may . . . maintain an action for damages
at law . . ." 46 U.S.C. App. § 688(a) (2000). As the statute makes
clear, the Jones Act creates a federal negligence action for injured
seamen. Norfolk Shipbuilding & Drydock Corp. v. Garris, 121 S.Ct. 1927,
1932 (2001); Chandris Inc. v. Latsis, 515 U.S. 347, 355 (1995), and its
animating concern is that seamen be provided a reasonably safe place to
To prevail under the Jones Act, plaintiff, by a preponderance of the
evidence, must establish three elements.
First, plaintiff must establish
that he was an employee of the defendant and acting as such within the
scope of his employment during the time of the accident. 46 U.S.C. App.
§ 688(a). This element is undisputed. Moreover, plaintiff must
establish that the defendant's actions were negligent. Negligence is the
failure to employ reasonable care given the circumstances. The vessel
owner owes his seamen "an `obligation of fostering protection,'" which
typically translates into "a higher duty of care" than that accorded to
land based torts." Saleh v. United States, 849 F. Supp. 886, 891 (S.D.N Y
1994) (quoting Cortes v. Baltimore Insular Line, Inc., 287 U.S. 367, 374
(1932)). Lastly, plaintiff must establish that the defendant's negligence
caused his injuries. The Jones Act carries with it a substantially
relaxed quantum of proof required to establish causation. That is,
plaintiff need only demonstrate that defendant's "negligence played any
part, even the slightest, in producing the injury or death for which
damages are sought." Ferguson v. Moore-McCormack Lines, 352 U.S. 521, 523
(1957) (quoting Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506
(1957); see also Diebold v. Moore McCormack Bulk Transport Lines, Inc.,
805 F.2d 55, 57-58 (2d Cir. 1986).
The Jones Act does not recognize the doctrines of assumption of the
risk or contributory negligence as defenses to liability; only
comparative negligence principles are recognized. Pope & Talbot, Inc. v.
Hawn, 346 U.S. 406, 408-09 (1953); Soconoy-Vacuum Oil Co. v. Smith,
305 U.S. 424, 428-33 (1939); The Max Morris, 137 U.S. 1, 14-15 (1890).
Should the shipowner successfully raise this affirmative defense, the
Court must then accordingly apportion fault.
The Court finds that all of the elements of negligence under the Jones
Act have been established. The Innovation had a duty to provide Nasser
with a reasonably safe place to work. The vessel vicariously breached
that duty when AB Crespo negligently heaved the line without instruction
or command or independent investigation as to the safety of such a course
of action. The vessel's negligence, moreover, was the proximate cause of
Nasser's injury. Nasser was in no way contributorially negligent.
Therefore, the Court awards Nasser judgment in the amount of $10,000
without pre-judgment interest. Jones v. Spentonbush Red Star Co.,
155 F.3d 587, 593 (2d Cir. 1998); Magee v. United States Lines,
976 F.2d 821, 822 (2d Cir. 1992).
B. General Maritime Law
Nasser also brings claims against CSX Lines based on the federal
maritime common law doctrine of unseaworthiness. Under this doctrine a
vessel owner is charged with the duty to provide its seamen "with a ship
and appurtenances that are reasonably fit for their intended purposes."
Sojak v. Hudson Waterways Corp., 590 F.2d 53, 54 (2d Cir. 1978) (per
curiam) (citations omitted); see also Lewis v. Lewis & Clark Marine,
Inc., 531 U.S. 438, 441 (2001); Mahnich v. Southern S.S. Co., 321 U.S. 96,
99 (1944). According to the Supreme Court, a vessel owner
is [not] obligated to furnish an accident free ship.
The duty is absolute, but it is a duty only to furnish
a vessel and appurtenances reasonably fit for their
intended use. The standard is not perfection, but
reasonable fitness; not a ship that will weather every
conceivable storm or withstand every imaginable peril
of the sea, but a vessel reasonably suitable for her
Mitchell v. Trawler Racer, Inc.,
362 U.S. 539, 550 (1960) (citing Boudoin v. Lykes
Bros. S.S. Co., 348 U.S. 336, as amended, 350 U.S. 811
Once established, unseaworthiness results in the vessel owner's strict
liability. Seas Shipping Co. v. Sieracki,