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BARLAS v. U.S

August 18, 2003

EDUARDO B. BARLAS, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Denny Chin, District Judge

OPINION

On March 17, 2000, seaman Eduardo Barlas tripped on a plastic packing strap on the deck of the S.S. Cape Avinof. Barlas's feet became entangled in the strap while he was carrying two heavy boxes of canned goods, and the fall injured his ankle, knee, and lower back. In this case, Barlas contends that dual defects rendered the Cape Avinof "unseaworthy": the plastic strap was inadequate because it must have slipped off a carton, uncut, and the deck was unsafe because it contained a nearly invisible entanglement hazard. [ Page 2]

In the peculiar world of the general maritime law and the "unusual liability" that is unseaworthiness, Shenker v. United States, 322 F.2d 622, 630 (2d Cir. 1963) (Friendly, J., dissenting), I conclude that the fallen packing strap rendered the Cape Avinof "unseaworthy" and the United States is liable in tort to Barlas for his injuries. Pursuant to Fed.R.Civ.P. 52(a), my findings of fact and conclusions of law follow.

FINDINGS OF FACT

A. Plaintiff

Barlas was born on April 2, 1957 in the Philippines, where he worked as a merchant seaman from 1977 until 1984. (Tr. at 11).*fn1 Barlas came to the United States in December 1985, and after receiving his green card in 1990, he became a nursing assistant. (Tr. at 12). Barlas thereafter became a United States citizen, and in 1995 he obtained his seaman's papers and returned to work as a merchant seaman. (Tr. at 13-14). Since then, he has not worked on shore. (Tr. at 14).

Barlas began work as an "able bodied seaman" or "AB" on the Cape Avinof, a vessel owned by the United States, on March 16, 2000. (Tr. at 14-16, 20-21, 90). As an AB, Barlas worked primarily on the deck, doing "bull work": general deck [ Page 3]

maintenance such as painting, chipping, and securing gears, work that involved lifting, crawling, and squatting. (Tr. at 16).

B. The Accident

On March 17, 2000, the Cape Avinof was docked at Baltimore, Maryland. (Tr. at 68). At about 3:30 in the afternoon, Barlas followed an order to help two or three others unload pallets containing boxes of the ship's stores (provisions or other items for the ship's own use), located on the starboard side, main deck, next to the number 5 hatch. (Tr. at 20, 30-31, 35; PX 3).

The unloading of stores is a relatively simple, weekly operation. (Tr. at 72). Pallets containing boxes are lifted by a ship's winch from the back of a truck on the pier onto the deck of the ship. (Id.). The pallets' shrink-wrapping is cut away, and individual boxes are picked up and carried into the galley, inventoried, then stored or refrigerated. (Id.).

On the day of the accident, Barlas helped to cart the pallets across the deck to the nearest doorway. (Tr. at 30). From there, he was to carry boxes from the pallets and pass them to a man inside the doorway. (Tr. at 31). On his first trip from the back of a pallet to the door of the ship, while carrying two boxes of canned goods, Barlas's feet became tangled in a plastic packing strap. He fell to the deck, twisting his legs, and landed on his knees, still holding the boxes. (Tr. at 32, 34, 50). [ Page 4]

Although Barlas was not carrying anything when he first went to the rear of the pallet, he did not see the strap on the deck until after he fell. Neither he nor Chief Mate Bolster, who was involved in the unloading operation, knew where the strap came from. (Tr. at 56-57). The boxes Barlas was carrying did not have packing straps, and the pallets themselves were shrink-wrapped. (Tr. at 54, 74). Some other boxes on the pallets were strapped and some were not. (Tr. at 34, 57). Boxes of frozen seafood had one packing strap around each package. (Tr. at 74).

Extrapolating from Bolster's testimony that the strap likely came from a small box of frozen fish, the Court finds that the plastic strap was somewhere between 14 and 18 inches in length, and approximately 3/8 of an inch wide. (Tr. at 74; PX 16). Although the plastic strap that tripped Barlas was not retained, the Government does not dispute that Barlas tripped on such a strap. (Tr. at 21). A packing strap similar to the one in question, perhaps a little longer (a total of 18 inches), was received in evidence. (Tr. at 74; PX 16).

The Court further finds that the strap fell to the deck from one of the boxes of stores. Indeed, Bolster testified that there was no other possibility. (Tr. at 84; see Tr. at 89 (wind theoretically capable of moving the strap)). Similarly, it was unlikely that Barlas was responsible for the strap's presence (although he is partly responsible for failing to see it), as the first and only boxes he lifted did not have any such straps. (Tr. at 52-53). As there was no testimony that any of the crew [ Page 5]

were engaged in cutting or removing strapping, the Court finds that the strap slipped off one of the other boxes of stores without being cut.

Further, the strap was not on the deck for very long before Barlas tripped on it. There were at least three people, in addition to Bolster, involved in the operation and walking around the area, alert to potential tripping hazards; both Bolster and Barlas agreed they would have picked up the strap if they had seen it. (Tr. at 49, 53-55, 75, 83).

The strap was white; the deck of the Cape Avinof was gray-black, with a non-skid surface. (Tr. at 76; DX 1 (photo); PX 16 (strap)). The strap would have been visible laying on the deck, although by no means as visible as other obstructions. The deck's fixtures included a number of raised, metal D-rings spray-painted yellow. A metal trash can, also painted yellow, was usually placed in the area. (Tr. at 77-78). Any crew member who saw the strap would have been able to dispose of it easily.

C. Plaintiff's Injuries and Treatment

Barlas initially complained of pain in his right ankle and, after being taken to rest inside the ship, pain in his right hip continuing down into his legs. (Tr. at 18, 20, 33; PX 4). Bolster visited Barlas in his room soon after the accident, and could see a scrape on his knee and swelling at his ankle. (Tr. at 80-81). Barlas was treated at Johns Hopkins Bayview Medical Center, where he was declared unfit for duty, his ankle was splinted, and he was given a crutch. (Tr. at 36, 58; PX 6; Stip. [ Page 6]

Facts ¶ 12). Barlas complained of back pain and was given medication, but he was not initially treated for a back injury. (Tr. at 58-59).*fn2

An MRI of the plaintiff's lumbar spine was taken at Columbia Presbyterian Hospital in New York on March 31, 2000. The MRI showed an L4-5 right-sided herniated disc (herniated nucleus pulposus or HNP), leading to right foraminal stenosis and disc desiccation with small disc bulges at L2-3 and L3-4, but without significant central canal or foraminal stenosis. (Tr. at 95-97; PX 7).*fn3

Referred by his lawyer, Barlas consulted Dr. Harold Goldberg, an osteopathic physician, in April 2000. From the radiologist's report and a physical examination, Dr. Goldberg concluded that Barlas suffered from a right L4-5 radiculopathy, or pain radiating from a nerve, and "traumatic derangement of the lumbosacral spine." (Tr. at 97-98, 59, 122; Stip. Facts ¶ 14). Goldberg also found a contusion and sprain of the right hip and a right ankle sprain, and he prescribed physical therapy. (Tr. 98, 122). Barlas received physical therapy, including electric [ Page 7]

stimulation of the muscles in the lumbar region, hot packs, massage, strength exercises for the lower back, as well as a prescription for indomethacin. (Tr. at 99).

Barlas continued a regimen of physical therapy for a number of months, until, according to Dr. Goldberg, Barlas insisted that he return to work. Dr. Goldberg reluctantly authorized a qualified "fit for duty" in November 2000, and, when this was rejected by the plaintiff's union, an unrestricted order in December 2000. (Tr. at 101).

Dr. Goldberg re-examined Barlas in May 2002, and found that Barlas was "still injured." (Tr. at 105). Barlas was still experiencing lower back and leg pain and was unable to satisfactorily perform standard tests, such as leg raising and trunk flexation. Dr. Goldberg diagnosed him with chronic lower back derangement. (Tr. at 106-07). Barlas will continue to feel pain as a result of his injury, and his condition is expected to worsen as he ages, including the likely onset of traumatic arthritis in the area. (Tr. at 110-11). Additional physical therapy would not have helped Barlas, as, in general, one year after such an injury occurs, the maximum benefit from treatment will have been reached and maximum healing will have occurred. (Tr. at 109-10). Although there may have been some degenerative changes unrelated to the accident, Goldberg was confident that [ Page 8]

the trauma caused the herniated disc and a great deal of continuing pain. (Tr. at 117, 125).*fn4

Before Barlas was injured by his fall on the deck of the Cape Avinof, he complained of no back problems; now he reports lasting effects from the fall, including shooting pains down his right leg, extreme pain at times in his lower right back and leg, difficulty performing sexually, pain caused by sneezing and coughing, and a general discomfort. (Tr. at 30, 41-43, 158).

Before the accident, Barlas was a fit man who enjoyed playing basketball, bowling, jogging, fishing, and actively participating in the lives of his two children. Since the accident he is unable to play basketball, bowl, jog or even watch his daughter play volleyball, as standing in the gym for extended periods causes him pain. (Tr. at 37-41). Putting on his socks can at times be a struggle, and he must take additional time in the morning and after work to stretch in an effort to alleviate his discomfort. (Tr. at 43). Barlas is still able to fish; likewise, he returned to work as an AB in the merchant marine in March 2001, one year after the accident, although he now works with increased pain. (Tr. at 39, 42). Barlas has since obtained [ Page 9]

a permanent position as a seaman aboard the M/V Enterprise. (Stip. Facts ¶ 19).

D. Lost Wages and Compensation

Barlas was paid in full for the remainder of the coastwise "voyage" of the docked Cape Avinof, and dismissed on March 20, 2000. (Tr. at 59; Stip. Facts ¶ 9-10). He received $8 per day for maintenance through November 19, 2000, an amount set by the Government's collective bargaining agreement with the National Maritime Union. (Id.). On November 20, 2000, Dr. Goldberg found Barlas "fit for a trial of work." The union refused to accept this qualified order, and thus Barlas was not cleared to work until Dr. Goldberg signed an unrestricted order on December 27, 2000. (Tr. at 119-120; PX 12, 14; Stip. Facts ¶¶ 15-17). This leaves an intervening 37 days (November 20, 2000 through December 27, 2000) for which he received no compensation, and thus he should have been paid an additional $296 in maintenance. (Stip. Facts ¶ 17). In addition, Barlas was unable to work for 9 months of the year 2000. His average salary from 1996-2001, excluding 2000, was $36,214; in 2000 Barlas earned only $3,638, or $32,576 less than average. (Stip. Facts ¶ 8).

DISCUSSION and CONCLUSIONS OF LAW

I. Applicable Law

A. Jurisdiction and Prior Proceedings

Barlas filed suit on July 17, 2001. Jurisdiction is proper under 28 U.S.C. § 1333. The Cape Avinof is owned by the [ Page 10]

United States and operated by its ship manager, Mormac Marine. The United States concedes to jurisdiction under the Suits in Admiralty Act, 46 U.S.C. § 741-52. This case was tried to the Court on December 2-3, 2002. At trial, plaintiff withdrew his claim based upon negligence under the Jones Act, and proceeded solely with a claim of unseaworthiness under the general maritime law.

B. Liability for Unseaworthiness

1. The Nature of the Warranty

The law of unseaworthiness has been described as a species of "strict liability" or even a "no fault doctrine." Gravatt v. City of New York, 226 F.3d 108, 116 (2d Cir. 2000). Although some courts hesitate to equate unseaworthiness with strict liability — and here, the Government objects to the term (Tr. at 263) — it is well-settled that unseaworthiness is a strict liability rule. See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 207-08 (1996) ("State wrongful-death statutes proved an adequate supplement to federal maritime law, until a series of this Court's decisions transformed the maritime doctrine of unseaworthiness into a strict-liability rule.").

Technically, unseaworthiness stops short of absolute liability because it depends upon "reasonable fitness." Under the principles of seaworthiness, an owner has an absolute duty to furnish a ship, crew, and appurtenances reasonably fit for their intended service. Mitchell v. Trawler Racer, Inc., 362 U.S. ...


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