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Soliman v. Maersk Line, Ltd.

United States District Court, E.D. New York

January 26, 2016

Mohammed Soliman, Plaintiff,
v.
Maersk Line Ltd, Defendants.

          FINDINGS OF FACT & CONCLUSIONS OF LAW

          RAMON E. REYES, JR. United States Magistrate Judge

         Mohammed Soliman (“Soliman”) commenced this action against defendant Maersk Line Limited (“Maersk”) for Jones Act Negligence, 46 U.S.C. § 30104, and general maritime unseaworthiness, after suffering a debilitating shoulder injury during the course of his duties as an Able Bodied Seaman (“ABS”) aboard the Maersk Idaho (the “Idaho”). (Dkt. No. 1). Based on testimony received during the course of a bench trial and additional depositions submitted by both parties, I conclude that Maersk is liable for negligence under the Jones Act. I further conclude that Soliman, through his own negligence, was fifty percent at fault. As such, I award Soliman damages in the amount of $638, 603.

         BACKGROUND

         In October of 2011, Soliman was employed as an ABS aboard the Idaho, a United States flagged containership. On October 22, while engaged in garbage disposal in the port of Algeciras, Spain, Soliman suffered a torn rotator cuff in his right shoulder. Following his injury, Soliman underwent three failed surgeries and has been unable to return to the profession he had practiced for 38 years.

         A. Soliman

         Soliman was born in Alexandria Egypt in 1950. (Testimony of Mohammed Soliman (“Soliman”) 43:3-6). In 1973, he began what would ultimately become a 38-year career as a seaman. (Soliman 44:4-6). While attending maritime school in Egypt, (Soliman 157:20-25), he received instruction on maritime safety and proper lifting, including the importance of keeping his arm by his side, rather than extended, when lifting. (Soliman 158:13-25). After graduating, he spent 18 years sailing for the Egyptian Navigation Company. (Soliman 44:10-18). In 1990, Soliman immigrated to the United States, working for various shipyards before joining the Seafarers Maritime Union in 2000 and returning to work as a seaman aboard United States flagged vessels. (Soliman 46:24-47:1, 47:10-22, 48:1-6). By 2009, Soliman was sailing for Maersk, first aboard the Maersk Montana and later as an ABS on the Idaho. (Joint Ex. 7).

         Soliman was regarded as highly skilled and competent. (Deposition Testimony of Paul August Willers (“Willers”) 39:11-13). Captain Paul Willers, Master of the Idaho, testified that he “would evaluate [Soliman] very well. I would have put him above average[.]”[1] Id. Soliman himself testified that he did not need instruction because he had been sailing for so long. (Soliman 181:24-25) (“I know a lot - I know a lot about safety. I don't need…somebody tells me that again.”). Prior to the instant accident Soliman had only suffered two injuries during his long career, (Soliman 45:19-21; 97:20-98:12; 102:22-103:3), including one aboard the Idaho just prior to the injury that prompted this litigation. (Willers 97:20-98:12). On that occasion, Soliman strained his left shoulder while pulling a mooring line. Id. Following treatment, he promptly returned to work. (Soliman 98:7-12; Df. Ex. A).

         B. The Accident

         At the time of the instant injury, Soliman was assisting with garbage disposal in the port of Algeciras, Spain. (Soliman 50:25-51:2, 54:6-12). Aboard the Idaho, trash is generally gathered from around the ship and collected in the garbage room, located on the port side of the main deck. (Willers 22:18-19). On longer voyages, where space becomes limited, additional room is made by compacting the garbage bags in a hydraulic press located in the garbage room. (Soliman 77:1-5, Willers 25:4-10). Compacted garbage is kept in heavy duty black bags. (Deposition Testimony of Robert Neilson (“Neilson”) 37:5-8). Captain Willers testified that bags were rarely compacted before arrival in Algeciras, because it was such a short trip from the preceding port. (Willers 172:5-10). First Mate Robert Neilson, who assisted Soliman with garbage disposal, testified that the offending bag was green, not black, (Neilson 38:11-12), suggesting it was not compacted. Soliman offered no evidence that the offending bag was overweight or otherwise dangerous due to compacting.

         When unloading garbage in Algeciras, the Idaho usually follows the same procedure. After reaching the relative calm of break water, crewmembers carry garbage bags from the garbage room, up a flight of steps and across the breadth of the ship to starboard side A-Deck. (Soliman 172:12-16; 179:2-6). Garbage is then staged for disposal on the exterior portion of starboard A-Deck. (Soliman 179:21-190:1; Joint Ex. 17-21). The location is tight and cluttered. A ladder runs along the bulkhead. (Soliman 55:10-14; Joint Ex. 2). A narrow passage exists between the ladder and the rail. Id. Below the ladder is a door. (Soliman 55:5-56:18; Joint Ex. 21). Between the door and ladder there is a small window. (Soliman 55:5-7; Joint Ex. 17-21). Along the bulkhead are multiple protrusions, most notably a portal for passing a fire hose and a handhold roughly the proportions of a towel rack, located at the same height as the first and fourth steps of the ladder. (Soliman 55:5-56:18; Joint Ex. 17-21). The garbage bags are stored against the bulkhead beneath the ladder. (Soliman 56:4-25; Joint Ex 11). A net is laid out on the ground between the bags and the exterior rail, leaving a very narrow strip of deck where a seaman can stand. (Soliman 58:16-19; Joint Ex. 2). According to Soliman, “[t]he net is right next to me…It's a small space and I could step on the net and slip.” (Soliman 74:14-16; Joint Ex. 18). Crewmembers then pull bags from the pile, placing them in the net until it is full, at which point the Suez Crane is used to lift the net and lower it onto the dock for disposal. (Soliman 58:11-16).

         On the day of Soliman's injury, garbage bags had been piled approximately seven to eight feet high beneath the A-Deck ladder. (Soliman 54:23-55:1, 56:23-25). After stacking the bags, Soliman and another crewmember began pulling bags from the stack into the net. (Soliman 54:9-12, 64:22-65:7). Soliman was closer to the base of the ladder, facing stern and pulling with his right arm. (Soliman 68:22-24, 69:20-25). As he grabbed the bags, Soliman's arm was bent at the elbow, and his hand was at shoulder height. (Soliman 72:22-25). His hand was turned halfway between palm up and palm down, similar to a handshake. (Soliman 81:8-13). After grasping each bag with his right hand, Soliman would pull his arm down and across his body in a 90 degree swing. (Soliman 81:19-23). This was the method used by all members of the Idaho crew. (Soliman 74:1-21).

         After successfully pulling four to six bags, Soliman reached for a bag located at approximately shoulder height. (Soliman 72:11-17, 73:3-5). As he pulled, Soliman felt a sudden sharp pain and tugging sensation in his shoulder. (Soliman 73:12-14). The bag did not move. (Soliman 73:16-18). Soliman testified to experiencing “[a] lot of pain and my arm hung, like I couldn't lift it. And I was screaming from pain[.]” (Soliman 73:19-21). He was sedated by the Second Mate and slept in his bunk until the following day, at which point he was seen by a doctor. (Soliman 76:1-7, 91:5-10; Df. Ex. A). The doctor found Soliman unfit for duty, at which point Maersk provided transportation back to the United States. (Soliman 95:1-3)

         C. Safety Procedures Aboard The Idaho

         The Idaho is required to comply with the International Management Code for the Safe Operation of Ships and for Pollution Prevention (“ISM”), which mandates that United States flagged vessels develop a safety management system (“SMS”) that provides safeguards against all identified risks. 33 C.F.R. §96.230(b). Consistent with this mandate, Maersk has a SMS, which was audited and found compliant. (Testimony of Mitchell Stoller (“Stoller”) 284:17-285:1; Joint Ex. 13-14). According to Maersk's expert witness, risks are identified on the basis of “common sense, and it's probably based on past experience.” (Testimony of John Lawrence Bergin (“Bergin”) 302:6-7). Under Maersk's SMS, a risk assessment must be conducted before any task that involves an identified risk. (Willers 150:1-3).

         Maersk provides crewmembers with training on proper lifting, including several pages dedicated to the subject in its safety handbook. (Joint Ex. 93 at 30-33). Prior to his injury, Maersk invited Soliman and other crewmembers to attend a conference entitled “Safety in Motion, ” which addressed proper lifting technique. (Soliman 116:19-117:2; Stoller 307:14-308:3). Soliman did not to attend. (Soliman 118:2-22). Soliman's own expert witness commended Maersk for holding the conference, which he characterized as above and beyond what most companies offer. (Stoller 308:8-14).

         While Maersk appears to have provided extensive training and instruction on proper lifting, the company failed to provide any training on safe pulling. (Deposition Testimony of Anderson Warwick, (“Warwick”) 113:1-5; Willers 56:14-25). When asked if crewmembers were trained in proper pulling, Captain Willers testified that “[w]hen everybody comes on board there's a safety manual given out to them that gives instruction on how people are to proceed for lifting things…that's the only instruction[.]” (Willers 56:14-25). While weekly safety meetings occurred, there is no indication that garbage disposal or pulling techniques were ever discussed. (Willers 148:12-149:18). The Maersk Safety Handbook contains ...


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