Luke Bonura, Jr., Cross-Appellant v. Sea Land Service, Inc., Cross-Appellee, Atlantic & Gulfstevedores, Inc., Intervenor

Luke Bonura, a longshoreman, was injured aboard S/S Maiden Creek when he fell during cargo loading operations at New Orleans in December of 1969. This suit against Sea Land Service, Inc. (Sea Land), the owners of Maiden Creek, an action predicated upon both negligence and unseaworthiness of the vessel, followed. The trial court found as a matter of law that Maiden Creek was unseaworthy and that her unseaworthiness caused Bonura’s injuries. He therefore directed a verdict of liability against Sea Land and submitted only the issue of damages to the jury. The jury returned a verdict of $175,000 for Bonura. After receiving the verdict the trial court indicated that it intended to grant a new trial unless Bonura would remit $50,000 of the jury’s award. Bon-ura consented, and a final judgment of $125,000 was entered. From this judgment Sea Land has appealed, and Bon-ura has cross-appealed.

Sea Land contends that the trial court erred (1) in directing a verdict of “liability,” (2) in failing to submit to the jury an instruction on the issue of Bon-ura’s purported comparative negligence, and (3) in submitting to the jury an issue of loss of future wages. On his cross-appeal, Bonura maintains that the trial judge abused his discretion in ordering a remittitur. A majority of this Court concludes that the trial court committed no reversible error, and its judgment is, therefore, affirmed.

The district court held that the S/S Maiden Creek was unseaworthy as a matter of law. This holding was based upon its conclusion that reasonable men could not differ about whether working conditions aboard at the time of Bonura’s accident violated two subsections of the then-current version of the Safety and Health Regulations for Longshoring.1 Specifically, the trial court believed that there could be no doubt that subsections (b) and (c) of 29 C.F.R. § 1504.32 had been violated.

While this Court has held that an inquiry into whether or not a ship is unseaworthy is usually a question to be decided by the trier of fact, Neveaux v. Central Gulf Steamship Corp., 503 F.2d 961 (5th Cir. 1974); Morales v. City of Galveston, 291 F.2d 97, 98 (5th Cir. 1961), aff’d, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962), it has also recognized that violations of the Safety and Health Regulations for Longshoring make a ship unseaworthy as a matter of law. Carey v. Lykes Bros. Steamship Co., 455 F.2d 1192, 1194 fn. 2 (5th Cir. 1972), and cases cited therein. It follows that a trial judge correctly directs a verdict of unseaworthiness when he finds in a particular case that all the facts and inferences point so strongly and overwhelmingly towards a violation of one or more of the sections of those regulations that reasonable men could not disagree that a violation existed. Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969).

We would hestitate to affirm the trial court solely on its determination that there was without question a violation of subsection (c), since there was some dispute in the evidence as to whether two crews were working at different levels in Maiden Creek’s hatch. However, a detailed review of all the evidence presented compels the conclusion that Bonura was required to work at a spot — either at the edge of a hatch section or atop piled cargo — which was more than eight feet high and where no protective safety net had been rigged.2 Since the failure to provide a safety net under such circumstances is a clear violation of subsection (b), the Maiden Creek was unseaworthy.

See Land complains that it was entitled to a jury instruction on the issue of Bonura’s purported comparative negligence. A majority of this Court, however, is in agreement with the district court that no evidence was presented which would, even construed most favorably to Sea Land, indicate comparative negligence on the part of Mr. Bonura would lose wages in the future, tive negligence it would have been confusing, as well as erroneous, for the trial court to have submitted an instruction on that subject to the jury. Urti v. Transport Commercial Corp., 479 F.2d 766 (5th Cir. 1973).

Sea Land’s final contention on appeal is that the trial court erred in submitting to the jury the issue of loss of future wages. The issue should not have been submitted, according to Sea Land, for two reasons. First, Sea Land argues, there was no evidence that Bon-urs would lose wages in the future. Second, Sea Land continues more specifically, the jury was given no guidance by way of expert testimony which would enable it to estimate rationally the present value of Bonura’s loss of future wages, if any. This is so, according to Sea Land, because there was no evidence concerning his work life expectancy, nor was there any actuarial evidence concerning the possible value of Bonura’s loss or the accepted mathematical methods, including the use of realistic interest rates, of reducing gross loss to present value. Sea Land does not complain of the substance of the trial court’s instruction itself.

As to Sea Land’s first contention concerning loss of future wages, there is a simple answer. Although Bonura was working as a longshoreman at the time of trial, there was adequate evidence upon which to base the submission of an instruction on loss of wage earning capacity. There is no doubt that Bonura suffered a significant hearing loss in certain frequency ranges. There was also testimony that his fall affected his sense of balance. Both of these infirmities can reasonably be assumed to have the effect of making 'Luke Bonura a less desirable longshoreman. In addition, Mr. Bonura testified that since the accident there had been days on which a pain in his neck and back prevented him from reporting to work.

Sea Land’s second contention on the future loss of wages issue presents more difficulty. The Third Circuit has held that, “ .. . . once evidence is presented and recovery is sought for future lost earnings, the jury is entitled to receive evidence and appropriate mathematical guidance on the method of reducing lost future earnings to present worth, if they are to act rationally and ‘not upon mere conjecture and guess.’ ” Ballantine v. Central Railroad of New Jersey, 460 F.2d 540, 544 (3rd Cir.), cert. denied, 409 U.S. 879, 93 S.Ct. 133, 34 L.Ed.2d 133 (1972). See also Russell v. City of Wildwood, 428 F.2d 1176 (3rd Cir. 1970) and Haddigan v. Harkins, 441 F.2d 844 (3rd Cir. 1970). However, the Third Circuit seems to stand alone in making either expert, actuarial evidence concerning the present value of future loss or mathematical guidance on the method of reducing gross loss to present value prerequisite to the submission of loss of future wages to the jury. The Sixth, Seventh and Eighth Circuits have all rejected this approach. They have not conceded that “the application of the present worth rule is beyond the understanding and capabilities of most lay persons serving on juries,” Ballantine, supra, 460 F.2d at 543, but, rather, have presumed that jurors are capable enough and aware enough of modern economics to be able to reduce gross loss to present value intelligently once they have been instructed to perform this function. Heater v. Chesapeake and Ohio Railway Co., 497 F.2d 1243, 1249 (7th Cir. 1974); Duncan v. St. Louis-San Francisco Ry. Co., 480 F.2d 79, 87 (8th Cir.), cert. denied, 414 U.S. 859, 94 S.Ct. 69, 39 L.Ed.2d 109 (1973); Baynum v. Chesapeake and Ohio Ry. Co., 456 F.2d 658, 660-661 (6th Cir. 1972); Pennsylvania Railroad Co. v. McKinley, 288 F.2d 262, 265 (6th Cir. 1961). Believing as we do in the ability of the modern American jury, we align ourselves with the majority of the circuits which have spoken on this question. We hasten to note, however, that we believe that it is decidedly the better practice to present the jury with either expert mathematical testimony or actuarial tables to aid it in its task of reducing gross future lost earnings to their present value. Nothing in our opinion should be read as discouraging attorneys or the court from affording the jury as much guidance in this respect as is reasonable. We hold only that such actuarial and mathematical evidence is not an absolute prerequisite to the submission of an instruction on lost future wages when evidence of such a loss has been presented.

Bonura on his cross-appeal complains of the $50,000 remittitur which he consented to under protest as the price for the trial court’s denial of Sea Land’s motion for a new trial. It has long been the rule, and there can scarcely be any doubt at this late date, that a federal district court has the power to condition the denial of a motion for a new trial upon consent to a remittitur. Dimick v. Schiedt, 293 U.S. 474, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This Court has held that the ordering of a remittitur under such circumstances is subject to appellate review in spite of the fact that it has been consented to, provided that the consent was given under protest. United States v. 1160.96 Acres of Land, 432 F.2d 910, 912 (5th Cir. 1970); Steinberg v. Indemnity Insurance Co. of North America, 364 F.2d 266, 268 (5th Cir. 1966) 3 The standard for review, however, is strict; and the trial court will be reversed only if the party opposed to the remittitur shows an abuse of discretion on the part of the judge. Gorsalitz v. Olin Mathieson Chemical Corp., 456 F.2d 180 (5th Cir.), cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972); Steinberg, supra; Delta Engineering Corp. v. Scott, 322 F.2d 11 (5th Cir. 1963), cert. denied, 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176 (1964). The reason for this strict standard is that the court’s power to condition a denial of a new trial upon consent to a remittitur is founded upon its power to grant a new trial for exces-siveness of verdict. This latter power is, itself, reviewable only for a grave abuse of discretion. Brents v. Freeman’s Oil Field Service, Inc., 448 F.2d 601 (5th Cir. 1971); Tucker v. Bethlehem Steel Corp., 445 F.2d 390 (5th Cir. 1971). See Manning v. Altec, Inc., 488 F.2d 127, 130-133 (6th Cir. 1973). A district judge’s discretion as to remitti-tur is circumscribed by the Seventh Amendment: He must not substitute his judgment of damages for that of the jury. We have, therefore, held that the trial court may not require remission of a sum which would reduce the verdict below the maximum award which is reasonably supported by the evidence. Jenkins v. Aquatic Contractors & Engineers, 446 F.2d 520, 522 (5th Cir. 1971); Gorsalitz v. Olin Mathieson Chemical Corp., 429 F.2d 1033, 1046-1047 (5th Cir. 1970), modified, 456 F.2d 180, cert. denied, 407 U.S. 921, 92 S.Ct. 2463, 32 L.Ed.2d 807 (1972). In examining the problem of the validity of a suggested remittitur, however, the first question is not whether the amount remitted is correct. Rather, the first question is whether the trial judge abused his discretion in ordering any re-mittitur at all. In answering this question, an appellate court will find an abuse of discretion only when it appears that the jury’s original verdict was clearly within the universe of possible awards which are supported by the evidence. Manning v. Altec, Inc., supra. If the jury's verdict is not clearly within this ambit, then the trial court has not abused its discretion in demanding some remittitur in return for the denial of a motion for a new trial. Once it has been determined that the trial court has not abused its discretion in demanding some remittitur, then the appellate court must determine whether the amount of the award which remains after the re-mittitur reflects the maximum award which the evidence will support or whether it merely represents the trial court’s opinion of what the proper award should have been. At this point deference will be given to the trial court’s determination since he, and not the appellate court, was present during the ebb and flow of the trial, and it will be presumed that the amount which he has chosen is the amount which will reduce the jury’s verdict to the “maximum possible” award unless the party opposed to the remittitur can point to credible evidence which would support a greater recovery.

In the case before us for decision we have determined, after a review of the evidence, that under these standards the trial court did not abuse its discretion in requiring a remittitur. Nor have we found credible evidence which would support an award of more than $125,000.

Affirmed.