Baucom v. Sisco Stevedoring, LLC (560 F. Supp. 2d 1181, 2008)

ORDER

WILLIAM H. STEELE, District Judge.

This matter came before the Court for non-jury trial on February 12 and 13, 2008. Both sides called witnesses and introduced exhibits (including deposition transcripts) into evidence. The record is now closed. At the conclusion of trial, the Court ordered post-trial briefing on certain enumerated factual and legal questions. That briefing having been completed, the undersigned now enters findings of fact and conclusions of law, pursuant to Rule 52(a), Fed.R.Civ.P.

1. Overview of Claims Presented.

Plaintiff Robert Baucom brought this action against defendants Sisco Stevedor-ing, LLC (“Sisco”) and PM Marine Employee Management, Inc. d/b/a Pinnacle Marine Services (“Pinnacle”) as a result of injuries he sustained on December 8, 2003 while working for Pinnacle on a crane barge owned and operated by Sisco. Plaintiff brings claims against defendants for negligence under the Jones Act, for unseaworthiness of the vessel, and for exemplary damages and attorney’s fees arising from Sisco/Pinnacle’s failure to pay maintenance and cure. Sisco and Pinnacle deny liability, and further assert that any award to Baucom must be reduced proportionately by his share of fault, pursuant to comparative negligence principles.

II. Findings of Fact.

A. The SISCO I.

On December 8, 2003, Baucom was employed as a crane operator aboard the SISCO I, a crane barge that was moored at the Mobile River Terminal and engaged in operations of loading and unloading cargo from other vessels. The SISCO I was owned and operated by Sisco; however, Pinnacle performed payroll management services for Sisco, and nominally employed Baucom and the other SISCO I crew members.

The SISCO I has a 120-foot long crane boom equipped with a catwalk and handrails to allow crew members a safe means of traversing and inspecting the boom. The handrails, which at all relevant times were 3/8" solid round rods, warp, bend and ultimately break from time to time because the boom flexes during ordinary crane operations. That flexing motion may cause the handrail to break loose at the joint where it is welded to a vertical bar. Whenever a handrail broke loose on the SISCO I, Sisco supervisor Henry Aaron Elliott’s practice was to contact a company called Corley Construction, which would dispatch certified welders to repair the rail. That said, Sisco/Pinnacle employees (who were not certified welders) would sometimes perform welding work on the SISCO I, and there was a welding machine onboard and accessible to all crew members that could be used to repair welds on an as-needed basis, although Elliott denied that SISCO I crew members would ever make spot welds on the boom. Elliott acknowledged that a broken handrail would present an unsafe condition, that the crane could not function if one of its cables became wrapped around a broken handrail on the boom, and that it would not be safe to operate the crane if one of its cables became wrapped around a broken handrail. A properly functioning crane is essential to SISCO I’s mission of loading and unloading cargo, and a crane cable being tangled in a broken handrail would render the vessel unfit to perform that fundamental mission. Because of expensive demur-rage costs if the SISCO I is taken out of service during the course of loading or unloading a ship, Sisco endeavors to schedule maintenance and repair on the vessel only during times when it is not otherwise operating. In light of these severe financial consequences, Elliott would not take the SISCO I out of service in the middle of a job if a handrail broke, but would instead simply bend the broken rail out of the way by hand until such time as the job was completed and proper repairs could be performed. However, plaintiffs expert testified that simply bending a broken handrail out of the way (even assuming it was physically possible to do so) may not correct the problem because a broken rail is like a spring, such that it would likely not remain in the position where it was bent back.

With respect to the SISCO Fs history of broken handrails and related crane problems, the Court credits the testimony of Dale Allemand, a crane operator who worked aboard the SISCO I periodically, including during the first half of 2003 as well as in January 2004. Allemand testified that a handrail on the crane boom of the SISCO I was broken and bent at various times in 2003 and early 2004, and that on at least two occasions during that time period a crane cable jumped and became entangled in the broken rail, rendering it extremely difficult for Allemand to free the heavy cable and resume crane operations. Allemand reported both the broken handrail and the fact that crane cables had gotten hung up in that broken rail to his supervisors at Sisco; however, the broken handrail was never fixed prior to the conclusion of his employment with Sisco/Pin-nacle in January 2004. Thus, the SISCO I was experiencing recurring problems in 2003 and 2004 with crane boom handrails breaking and crane cables becoming entangled. What’s more, Sisco/Pinnacle had actual notice of these incidents, but failed to take corrective action.

B. The Events of December 8, 2003.

On the morning of December 8, 2003, the SISCO I was scheduled to commence unloading cargo from a vessel called the NORTHERN FRIENDSHIP. Prior to beginning the job that morning, Sisco deck hands changed out a worn closing line cable on the crane, a routine procedure that takes approximately two hours. The process of changing the cable delayed the start time of the SISCO I’s cargo unloading duties that day. At approximately 11:45 a.m., the SISCO I began unloading cargo from the NORTHERN FRIENDSHIP.

Baucom, a certified crane operator with eight years (at that time) of experience operating derrick cranes such as that on the SISCO I, was on duty working the 6 a.m. to noon shift, as well as the 6 p.m. to midnight shift. As second crane operator on the SISCO I, Baucom was responsible for inspecting the top of the crane during each shift, including the boom and catwalk areas, and for reporting any observed damage to the lead operator (Troy Hayes) or to Elliott. In accordance with these duties, Baucom walked out on the catwalk to inspect the crane boom every 12 hours each day that he was working onboard the SISCO I. On the morning in question, Baucom walked the catwalk and inspected the boom. At that time, he observed a broken middle handrail on the crane boom, with the rail bent in toward the center of the boom at an angle of approximately 30 degrees, and bent upward at an angle of 15 to 20 degrees. Baucom had previously reported the broken handrail to Sisco. Indeed, this was not the first time that Bau-com had observed that handrail to be broken or reported it to his supervisor; to the contrary, the rail had been broken for a period of at least a week (and perhaps even several weeks), and he had reported it to Hayes several times prior to December 8, 2003. However, Sisco/Pinnacle had not remedied the problem. Baucom did not believe that the broken handrail would interfere with the operation of the crane at that time, and he did not undertake to push the handrail backwards because he did not think the cable could jump in behind the rail in its current position.

In connection with the cable being changed, the crane was boomed down to zero, meaning that the tip of the boom was actually touching the ground on shore, enabling the deckhands (also on shore) to replace the cable. After the cable-changing process was complete, at approximately 11:15 a.m. or 11:30 a.m., Baucom began to boom the crane up in preparation to bring the SISCO I alongside its client vessel and commence the cargo unloading process. When the boom reached approximately a 60-degree angle, the slack in one of the cables (either the holding or closing cable, depending on which witness’s testimony is believed) allowed it to backlash behind the broken handrail, resulting in this 1 5/8" steel cable being wrapped behind the handrail. Baucom observed this condition and feared that continuing to operate the crane in those circumstances could cause the rail to snap off altogether, creating a hazard for people on the ground or for Baucom himself in the crane cab. Not wanting to damage the crane or to jeopardize the safety of his co-workers, Baucom boomed the crane back down, walked out on the catwalk, and used his foot to kick the cable (which was twisted around the broken handrail) off the end of the rail. The problem was that now the cable was behind the rail, such that if Baucom had raised the boom at that time, the cable still would have been obstructed by the broken rail. To free the cable, Baucom grabbed the cable physically with both hands and pulled on it. Eventually the cable came loose; however, when it did so, the cable violently pulled Baucom down to his knees on the catwalk.

A deckhand, Gene Laskey, witnessed the accident from 30 feet away, and corroborated Baucom’s account. The accident happened shortly after Laskey and three other deckhands (who were standing on the beach) changed the closing cable, when the crane boom was laid down to the ground. Laskey specifically observed the broken handrail, and saw Baucom grappling with and pulling on the cable in an attempt to free it. Laskey further observed Baucom as the cable “snatched him down” to his knees on the deck when it finally came loose from the broken rail. No one from Sisco ever interviewed Las-key in connection with the investigation, and Laskey never volunteered that information to any Sisco supervisors because he did not realize until much later that the incident he observed had caused Baucom’s injuries.

After being snatched down by the cable, Baucom knew immediately that his back was hurt, but initially thought that it was merely a muscle strain. For that reason, he continued working until shift change at approximately 12:00 p.m. When Baucom’s shift ended, he reported the incident to Hayes, then endeavored to rest in crew quarters onboard the SISCO I until his 6:00 p.m. shift. Because of the significant back pain he was enduring, however, Bau-com was unable to sleep. Nonetheless, Baucom tried to work his next shift, even though he had informed Hayes (the lead operator) that he had injured his back during the previous shift. In climbing the 25-foot ladder from the engine room to the crane operator cab, Baucom felt a pop in his back. He proceeded to operate the crane for approximately 5 minutes in his 6:00 p.m. shift before realizing that his back pain was simply too excruciating to allow him to continue working.

SISCO I crew members (presumably Hayes) called Elliott at his home at approximately 7:30 p.m. to inform him that Baucom had hurt his back and needed to go to the hospital. Elliott promptly drove to the Mobile River Terminal, arranged for Baucom to be transported by tugboat back to the bulkhead, and then drove Baucom to the Springhill Memorial Hospital emergency room in Elliott’s personal vehicle. Elliott observed that Baucom was in obvious pain.

Unfortunately, Sisco/Pinnacle’s investigation of the accident was woefully inadequate. No written statements were taken from Baucom or any of the remaining SIS-CO I crew members (which consisted of four deckhands and one other crane operator) to confirm what, if anything, they saw or what happened. Although Elliott testified that he asked the deckhands whether they witnessed Baucom’s accident, the Court credits deckhand Gene Laskey’s testimony that neither Elliott nor anyone else inquired as to whether he saw the injury occur. No contemporaneous photographs of the crane boom or handrails were taken. Elliott himself did not personally inspect the boom of the crane until several days after the fact. At that time, he testified, he did not observe any broken handrails. Even if Elliott’s testimony is accurate, though, it is impossible to know whether the condition of the rail had been altered by SISCO I crew members or a third party during the intervening time period. And even when he did conduct that inspection, Elliott neglected to take photographs that might corroborate his testimony as to what he saw or did not see, or that might allow an expert to assess the existence or recency of any welding repairs to the handrail in question.

C. Plaintiff’s Work History following the December 2003 Accident.

Baucom was out of work for medical reasons for approximately five months after the December 2003 accident. He did not work at all until he received a medical release on May 19, 2004, after which he promptly returned to work for Sisco/Pin-nacle aboard the SISCO I. Baucom was taking prescription medication (anti-in-flammatories) and non-prescription pain relievers (such as Aleve) at that time. Even though he had resumed full-time work as a crane operator aboard the SIS-CO I, and even though his physicians had released him to return to work, Baucom continued to experience intermittent lower back pain, numbness in his right foot, occasional sharp pain radiating down his buttocks, and other forms of continuing discomfort. The more physically active Baucom was, the more intense his pain was.

Sisco/Pinnacle terminated Baucom’s employment in approximately September 2004 because he had damaged several ships during normal crane operations, as a result of what Elliott characterized as a “don’t-care attitude.” Following his dismissal, Baucom found suitable employment working for several different companies as a crane operator on floating derrick barges in the northeastern United States. On one of those jobs, in October 2004, Baucom strained his back while using a pry bar to loosen a crane cable while working for a company called Atlantic Soundings; however, he missed no time from work as a result of that incident, sought no medical treatment at that time, and the pain subsided to its previous levels within days after that incident. In approximately January 2005, Baucom returned to the Mobile area for medical and employment-related reasons.

On April 21, 2005, Baucom began employment with Kinder Morgan Bulk Terminals operating a floating crane in Tampa, Florida. No medical restrictions had been placed on Baucom’s work activities by his treating physicians at that time. On his very first day on the job, Baucom was pulling the slack out of a cable when he felt a pop in his back and experienced a shooting and burning pain in his right leg. Baucom went to the hospital immediately. Since that time, Baucom has never returned to work, either at Kinder Morgan or anywhere else.

D. Plaintiff’s Medical Diagnosis and Treatment.

Prior to December 2003, Baucom had complained to his supervisor, Elliott, of discomfort in his arms or elbows; however, he had never experienced any significant back injuries or back pain. Following the December 2003 accident, Baucom was diagnosed with lumbar back pain, lumbar spine strain, degenerative disc disease, and herniated discs. Baucom received medical treatment from a pain specialist and orthopedists, with such treatment taking the form of physical therapy, pain medication (including muscle relaxers and lor-tabs), and lumbar epidural injections in his back. On April 13, 2004, one of plaintiffs orthopedists, Tim S. Revels, M.D., opined in a clinic note that “no surgery is indicated” for plaintiffs back problems, which Dr. Revels expected “to slowly get better on [their] own.” This appears to be what happened, as plaintiffs subjective complaints diminished over time, even as the underlying objective back condition remained the same.

In May 2004, plaintiff participated in a functional capacity evaluation, which concluded that Baucom had demonstrated the ability to lift in the full heavy physical demand level. Based on that evaluation, his physicians concluded that Baucom could be released back to full duty in heavy physical demand work as a crane operator with no restrictions. On May 19, 2004, another of plaintiffs treating orthopedists, Christopher Patton, M.D., stated his opinion that Baucom had reached maximum medical improvement, that he had a 0% impairment, and that he was cleared to return to work regular duty. Significantly, however, despite the improvement in Baucom’s subjective symptoms and complaints, his underlying anatomical diagnosis was unchanged. Simply put, Baucom’s back problem had not gone away, even though he had experienced a diminution in subjective complaints and an amelioration of his symptoms.

Throughout the remainder of 2004 and early 2005, Baucom passed multiple work-related physical examinations, and was cleared in each instance to work as a crane operator without restrictions. However, he continued to require ongoing medical care for his sporadic back problems. In that regard, Baucom revisited Dr. Patton periodically for continuing back stiffness and pain, including clinic visits on January 18, 2005 and April 15, 2005. The catalyst for the latter appointment was a trip to the beach in which Baucom experienced significant lower back pain. Dr. Patton prescribed medication and recommended physical therapy.

On April 21, 2005, just six days after visiting Dr. Patton for back pain after the beach trip, Baucom began working for Kinder Morgan, and re-injured his back in his first day on the job. The subjective symptoms described by Baucom after the Kinder Morgan accident were similar to those after the Sisco accident; however, his pain had worsened in both duration and intensity, and there were additional symptoms such as bladder and bowel dysfunction, as well as a burning pain down the back side of his right leg that Baucom likened to placing a frying pan up against the leg. That said, there were periods of time before the Kinder Morgan accident in which Baucom experienced back pain episodes so debilitating that he was rendered bedridden until they abated. Overall, Baucom’s subjective complaints to his treating physicians following the 2005 accident were similar to those he expressed following the 2003 accident, although the degree, intensity and duration of the pain had increased.

Following the Kinder Morgan accident, Baucom was treated by Russell A. Hud-gens, M.D., who diagnosed the injury as a herniated disc in the lumbar spine and aggravation of preexisting injury, for which he prescribed a regimen of physical therapy, medication, and epidural injections. Dr. Hudgens placed Baucom on a “no work duty” status. The epidural injections provided negligible relief for plaintiff, and Baucom continued to suffer leg and back pain throughout the remainder of 2005, with numerous doctor’s visits during that span. In September 2005, Baucom was referred back to Dr. Revels (an orthopedic surgeon specializing in spinal surgery who had been one of his treating physicians after the December 2003 injury) for a consultation. Dr. Revels concluded that the 2005 incident had aggravated the symptoms Baucom was already experiencing from the 2003 incident, such that he was now being treated for an aggravation of a pre-existing problem, not a new problem altogether. Dr. Revels’ testimony was clear that no new objective injury was caused by the April 2005 accident. The principal difference from Dr. Revels’ standpoint was that, rather than waxing and waning as they had previously, Bau-corn’s symptoms were now persistent and constant, and his subjective complaints were worse than they had been.

On April 12, 2006, Dr. Revels determined that conservative treatment measures had failed and recommended that Baucom undergo a two-level lumbar fusion surgery. The goal of this surgery would be to attempt to correct the herniated disc that was causing Baucom’s pain and to restore him to a higher level of functionality. Dr. Revels testified that there is no way to know whether Baucom would have required the lumbar fusion surgery had the April 2005 aggravation of the December 2003 injury not occurred, but that it is possible that he would have. However, Dr. Revels also testified to a reasonable degree of medical certainty that the surgery he was recommending for Baucom was related to the 2003 accident and not the 2005 accident. Even though Dr. Revels had reached the conclusion in April 2006 that Baucom was a good candidate for lumbar fusion surgery because of the December 2003 accident, his deposition of October 2006 marked the first time that this surgery recommendation was communicated to Sisco/Pinnacle.

Baucom did not undergo that surgical procedure at that time because he could not afford the $82,000 price tag, and neither Sisco/Pinnacle nor Kinder Morgan would agree to foot the bill. As of January 18, 2008, the last time plaintiff saw Dr. Revels, the treatment recommendation for surgery was unchanged. Baucom has been willing and ready to proceed with surgery for some time, pending funding. That funding has now been secured by virtue of a settlement entered into between Baucom and Kinder Morgan shortly before trial in this case, pursuant to which Kinder Morgan agreed to pay maintenance and cure benefits to Baucom, including specifically paying for the surgery. This presumably will be scheduled in the near future, although plaintiff offered no evidence to that effect and no explanation for the delay in scheduling the surgery following the Kinder Morgan settlement in January 2008. Dr. Revels, the physician who will perform the surgical procedure, has no opinion as to whether the delay in performing the procedure while sorting out these economic issues has likely caused Baucom harm or in any way jeopardized the likelihood of a successful outcome. Dr. Revels also testified that he does not know at this time whether Baucom would or would not be able to return to a crane operator position if he underwent the contemplated surgery.

At the present time, Baucom remains unable to work for an indefinite period of time, per physician’s orders. Baucom endures substantial back pain on a daily basis, and that back pain intensifies as his level of activity increases. Additionally, Baucom is subject to periodic “episodes” where the back pain becomes so severe that he is completely incapacitated until the pain subsides.

E. Future Earnings Capacity / Lost Wages Evidence.

Plaintiffs vocational rehabilitation expert, James Miller, opined that Baucom is not presently employable and will not be until such time as Dr. Revels removes his “no work duty” status, which appears likely to remain indefinitely pending the outcome of lumbar fusion surgery to be performed at some unknown date. Miller testified that any projections about Bau-com’s future wage-earning capacity are necessarily speculative given the broad range of possible outcomes from that surgery, ranging from permanent and total disability to unrestricted work duty. Defendants’ vocational rehabilitation expert, Larry Stokes, concurred with Miller that Baucom is medically unable to work at this time, and that his present earnings capacity is zero. However, Stokes made certain assumptions to project that Bau-com may be able to return to work at the light level following surgery, and further assumed that he might be able to perform work with a medium level of physical demand. In reliance on those assumptions, Stokes opined that work would be available for Baucom that would allow him to resume working after surgery with a good vocational prognosis. However, Stokes agreed that Baucom’s earnings capacity prior to his injuries exceeded $1,000 per week, and that other potential jobs identified by Stokes (based on Baucom’s past work and alternate jobs) would pay a mere fraction of that amount for full-time employment.

Additionally, defendants offered the expert testimony of economist Kenneth J. Boudreaux, Ph.D., for the proposition that to project Baucom’s future lost wages, calculated across his remaining work life expectancy on an after-tax basis and reduced to present value, one need only take the annual difference in Baucom’s wage earning capacity and multiply that number by 10.57. Dr. Boudreaux and plaintiffs economist, Randolph Rice, Ph.D., provided generally similar lost wage calculations, but disagreed as to the wage base that should be used in those calculations (ie., the amount the Baucom was earning prior to his injuries). Dr. Boudreaux calculated Baucom’s average annual earnings before the SISCO I injury (on a before-tax, after-expense basis) at $44,788, while Dr. Rice pegged the figure at $61,578. After review of both experts’ reports and testimony, the Court finds that Dr. Boudreaux’s methodology more accurately captures Baucom’s highly variable base wages by examining a longer time frame of income history than Dr. Rice did, and also by taking into account Baucom’s proclivity (even in the absence of any injuries or work restrictions) to take several months off from work each year to devote to fishing, hunting and other hobbies. Therefore, to the extent necessary for any lost earnings calculations, the Court will adopt Dr. Boudreaux’s wage base calculations of $44,788 per year as a starting point for any award.

III. Conclusions of Law.

The only legal claims presented in this case are as follows: (a) whether plaintiff is entitled to recover from Sisco/Pinnacle on a theory of Jones Act negligence; (b) whether plaintiff is entitled to recover from Sisco on a theory of unseaworthiness; and (c) whether plaintiff is entitled to recover exemplary damages and attorney’s fees based on Sisco/Pinnacle’s failure timely to pay for his back surgery, pursuant to its maintenance and cure obligations. Each of these claims will be considered in turn, followed by a discussion of pertinent damages issues.

A. Jones Act Cause of Action.

“The Jones Act allows an injured seaman to sue his employer for personal injuries suffered as a result of the employer’s negligence.” Park v. Stockstill Boat Rentals, Inc., 492 F.3d 600, 602-03 (5th Cir.2007). To establish negligence under the Jones Act, “a plaintiff must show that her employer failed to provide a safe workplace by neglecting to cure or eliminate obvious dangers of which the employer or its agents knew or should have known and that such failure caused the plaintiffs injuries and damages.” Taylor v. TECO Barge Line, Inc., 517 F.3d 372, 383 (6th Cir.2008) (citation omitted); see also Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1543 (11th Cir.1989) (similar); Hernandez v. Trawler Miss Vertie Mac, Inc., 187 F.3d 432, 437 (4th Cir.1999) (recovery under Jones Act requires showing of “the breach of a duty to protect against foreseeable risks of harm”). Thus, the critical elements that Baucom must show to prevail on his Jones Act negligence claim are that Sisco/Pinnacle failed to provide a safe workplace by neglecting to eliminate obvious dangers of which they knew or should have known; that Baucom sustained injuries; and that the dangerous condition caused Baucom’s injuries. Each element is satisfied here.

Plaintiff has established by a preponderance of the evidence that defendants negligently failed to cure an obvious, foreseeable danger onboard the SISCO I. This determination is informed by the following salient facts: (a) there was a broken handrail on the SISCO I’s crane boom on the morning of December 8, 2003; (b) that handrail had been broken for at least a week, and perhaps as long as three weeks; (c) Baucom had reported that condition to the lead operator (Hayes) on multiple occasions, but Sisco/Pinnacle had failed to remedy the problem; (d) SISCO I crew members relied on the handrails to traverse the catwalk safely, and a broken handrail created a tripping hazard; (e) a broken handrail created a risk that the crane cables would become entangled in the rail, jeopardizing the safe operation of the crane and raising a likelihood that the cable might snap the rail off altogether, transforming the rail into a dangerous projectile; and (f) crane cables had become wrapped around broken handrails onboard the SISCO I on at least one and as many as two previous occasions in 2003, and that condition had been reported to supervisors by Dale Allemand, such that defendants were aware of the danger. Taken in the aggregate, these facts satisfy Baucom’s burden of showing negligence. A broken handrail was an obvious danger. Crew members walking the catwalk might trip over it. Crane cables might get caught in it, as had happened before. Defendants’ supervisors knew about this obvious danger, because Baucom had reported it to them. Yet defendants did nothing to correct the problem prior to the accident, even though it would have been a simple matter to weld the handrail back onto the boom, as defendants’ contractor had done repeatedly. This constellation of facts establishes negligence for Jones Act purposes.

With respect to causation, a Jones Act plaintiff need only meet a reduced standard of showing that the employer’s negligence is the cause, in whole or in part, of his injuries. See Taylor, 517 F.3d at 383; Dempsey, 876 F.2d at 1542 (“the courts have allowed a seaman to recover on a Jones Act claim with a lower showing of proximate cause than would be required in a non-admiralty case”); McClow v. Warrior & Gulf Nav. Co., 842 F.2d 1250, 1251 (11th Cir.1988) (recognizing that in Jones Act cases, “causation may be found if the defendant’s acts or omissions played any part, no matter how small, in bringing about the injury”) (citation omitted). There can be no reasonable debate that this “featherweight” causation standard is satisfied here. Both the medical evidence and Baucom’s testimony about the onset of his complex of symptoms reflect that the lower back pain from which he has suffered for the last four-plus years was caused, in whole or in part, by the December 8, 2003 accident. And that accident in turn was caused, in whole or in part, by defendants’ negligence in failing to repair the obviously dangerous condition of the broken handrail aboard the SISCO I. Had defendants repaired the handrail promptly when Baucom brought it to their attention at least days before the accident, the crane cable could not have become tangled in the rail on the morning of December 8, 2003, Baucom would not have had to attempt to free the cable, and he would not have been jerked to his knees on the deck when the cable finally became free. There is thus abundant record evidence to support the Court’s conclusion that the requisite causation for Jones Act liability is present here.

In post-trial briefs, both Baucom and Sisco/Pinnacle concur that Sisco and Pinnacle may be held jointly liable on plaintiffs Jones Act cause of action. (See Plaintiffs Brief (doc. 145), at 2-3; Defendants’ Brief (doc. 146), at 1-2.) The parties’ position on this issue is in accordance with governing law, given the undisputed evidence that Sisco was controlling Bau-com’s activities even though Pinnacle was nominally his employer. See generally Guidry v. South Louisiana Contractors, Inc., 614 F.2d 447, 452 (5th Cir.1980) (observing that an employer-employee relationship is essential to recovery under the Jones Act, but that a third person who borrows a worker may become his employer if the third person assumes sufficient control over the worker, none of which may preclude the worker from remaining his immediate employer’s servant for Jones Act purposes, as well); Reeves v. Mobile Dredging & Pumping Co., 26 F.3d 1247, 1253 (3rd Cir.1994) (in Jones Act context, “[t]he existence an employment relationship ... turns on the degree of control the alleged employer exerts over the employee”). Therefore, after damages have been determined on the Jones Act cause of action infra, judgment will be entered on that cause of action against defendants Sisco and Pinnacle, jointly and severally.

B. Unseaworthiness Cause of Action.

In addition to his Jones Act claim, Baucom also advances a cause of action against Sisco for unseaworthiness.

“A ship owner is strictly liable for personal injuries caused by his or her vessel’s unseaworthiness. A vessel is un-seaworthy if the vessel and its appurtenances are not reasonably fit for their intended use.” Taylor, 517 F.3d at 383 (citation omitted); see also Park, 492 F.3d at 604 (“A vessel is unseaworthy only if it presents an unreasonable risk of harm to the seaman.”). The touchstone of the unseaworthiness test is not whether the vessel is free from all risks of mishap or injury, but is rather whether the vessel is reasonably suited for the purpose or use for which it was intended. See Park, 492 F.3d at 604. Significantly, “liability for unseaworthiness does not require any showing of a defendant’s negligence.” Napier v. F/V DEESIE, Inc., 454 F.3d 61, 64 n. 1 (1st Cir.2006). Rather, the unseaworthiness cause of action imposes strict liability on a ship owner to maintain the vessel in a reasonably fit condition. “[E]ven a temporary and unforeseeable malfunction or failure of a piece of equipment is sufficient to establish an unseaworthy condition.” Id. at 68; see also Perkins v. American Elec. Power Fuel Supply, Inc., 246 F.3d 593, 602 (6th Cir.2001) (recognizing “well-settled law that even a temporary or unforeseeable failure of a piece of vessel equipment under proper and expected use is sufficient to establish unseaworthiness”).

The Court readily concludes that there was an unseaworthy condition on-board the SISCO I at the time of Bau-com’s accident on December 8, 2003. Factual findings set forth supra reflect that there was a broken handrail on the vessel, and that a crane cable had become wrapped around that broken rail. Sisco’s own agent, Aaron Elliott, conceded at trial that a broken handrail is an unsafe condition, that it would be unsafe to operate the crane if a crane cable was wrapped around the handrail, and that such a condition would render the SISCO I unfit to perform its function of loading and unloading cargo. It is abundantly clear from the record that the crane cable wrapped around the handrail was a temporary malfunction establishing an unseaworthy condition onboard the SISCO I. That Sisco may have been unaware that the cable was looped around the handrail is of no consequence. Furthermore, while the undersigned is convinced that this unseaworthy condition was entirely foreseeable, given the track record of such occurrences when a handrail was broken on the SISCO I, whether Sisco could have foreseen such a condition is irrelevant for purposes of the unseaworthiness claim. The SISCO I was unseaworthy at the moment when Baucom injured his back on December 8, 2003.

There being an unseaworthy condition, Sisco, as the vessel’s owner, “is strictly liable for personal injuries caused by his or her vessel’s unseaworthiness.” Taylor, 517 F.3d at 383 (citation omitted). As for causation, the relaxed Jones Act standard does not apply to unseaworthiness claims. See McClow, 842 F.2d at 1251; Comeaux v. T.L. James & Co., 702 F.2d 1023, 1024 (5th Cir.1983) (“The standard required to prove causation as a result of the vessel’s unseaworthiness is more demanding than that for recovery under the Jones Act, and requires proof of proximate causation in the traditional sense.”). Thus, to establish causation in the unseaworthiness context, the plaintiff must demonstrate the unseaworthy condition to be the proximate cause of his injury. See Churchwell v. Bluegrass Marine, Inc., 444 F.3d 898, 904 (6th Cir.2006). In this context, proximate cause means “the cause which in the natural and continuous sequence, unbroken by any efficient intervening cause, produces the results complained of, and without which it would not have occurred.” Napier, 454 F.3d at 68; see also Churchwell, 444 F.3d at 904 (“A vessel’s unseaworthiness is the proximate cause of a plaintiffs injuries if it was a substantial factor in causing such injuries.”). Given Baucom’s testimony that the onset of his complex of symptoms coincided with his injury attempting to correct the unseaworthy condition, the Court finds that the SISCO I’s unseaworthiness was a substantial factor causing Baucom’s injuries, such that the proximate causation standard is satisfied.

In their post-trial briefs, both Baucom and Sisco/Pinnacle agree that liability for the unseaworthiness claim must be confined to Sisco, and that Pinnacle cannot be liable on this cause of action because it did not own, charter or otherwise control the SISCO I. (See Plaintiffs Brief (doc. 145), at 2-3; Defendants’ Brief (doc. 146), at 1-2.) Accordingly, after appropriate findings are made concerning damages, the Court will enter judgment in Baucom’s favor and against Sisco on the unseaworthiness cause of action.

Cl Exemplary Damages and Attorney’s Fee Claims Related to Maintenance and Cure Obligations.

As discussed supra, the lone component of plaintiffs maintenance and cure cause of action that remains in these proceedings is his claim for exemplary damages and attorney’s fees arising from Pinnacle/Sisco’s failure to pay certain maintenance and cure benefits. This claim is rooted in Dr. Revels’ October 2006 deposition, wherein his recommendation of lumbar fusion surgery for Baucom became known to Pinnacle, as did Dr. Revels’ opinion that to a reasonable degree of medical certainty the need for that surgery was ascribed to the December 2003 accident and not to the April 2005 accident. Plaintiffs position is that Pinnacle/Sisco should have promptly agreed to pay for that surgery upon learning of Dr. Revels’ opinions and that their failure to do so prevented him from receiving that medically indicated procedure as of the date of trial. Baucom seeks exemplary damages and attorney’s fees from Pinnacle/Sisco on this theory.

“If the shipowner, in failing to provide maintenance and cure, has been callous and recalcitrant ... or arbitrary or capricious ... reasonable attorney’s fees may also be recovered.” Gaspard v. Taylor Diving & Salvage Co., 649 F.2d 372, 375 (5th Cir.1981); see also Nichols v. Barwick, 792 F.2d 1520, 1524 (11th Cir.1986) (“Attorney’s fees are available to a plaintiff when the defendant refuses to provide maintenance and cure in bad faith, callously, or unreasonably.”). The same is true of exemplary damages. See Flores v. Carnival Cruise Lines, 47 F.3d 1120, 1127 (11th Cir.1995) (to recover punitive damages in admiralty law, plaintiff must show that defendant exhibited willful and wanton misconduct); Hines v. J.A. LaPorte, Inc., 820 F.2d 1187, 1188-90 (11th Cir.1987) (explaining that both punitive damages and attorney’s fees may be awarded in a case of arbitrary and willful withholding of maintenance and cure benefits). Thus, to receive an award of exemplary damages and attorney’s fees on his claim related to Pinnacle/Sisco’s failure to pay for the surgery, Baucom must establish that defendants’ conduct in this regard was callous, willful, unreasonable, wanton, egregious or otherwise in bad faith.

Under the particularized circumstances of this case, it may well have been erroneous for defendants not to pay for Baucom’s surgery, but it was not unreasonable, willful or egregious. See generally Averett v. Diamond Offshore Drilling Services, Inc., 980 F.Supp. 855, 859 (E.D.La.1997) (employer’s failure to pay maintenance and cure, while erroneous, was not willful, wanton or egregious where employer’s decision was based on a doctor’s report, such that no attorney’s fees were compensable). Pinnacle/Sisco paid maintenance and cure benefits (including more than $22,000 in weekly indemnity benefits, plus medical expenses) to Baucom from the time of the accident in December 2003 until May 19, 2004, when his treating physicians deemed him to be at maximum medical improvement and released him to return to work at full duty with no restrictions. There were sound legal and factual grounds for Pinnacle/Sisco to halt maintenance and cure benefits as of May 2004. See Baucom v. Sisco Stevedoring, LLC, 506 F.Supp.2d 1064, 1072 (S.D.Ala.2007) (“The obligation to pay maintenance and cure continues until such time as the seaman has reached the point of maximum cure.”). Two and a half years later, plaintiff sought to reactivate defendants’ maintenance and cure obligations by demanding that they pay for his back surgery. In the interim, Baucom had sustained another workplace accident for another employer that aggravated his underlying back injury and worsened his subjective complaints of pain. While Dr. Revels attributed the need for surgery to the December 2003 injury and not to the April 2005 injury, this opinion is confounded by his further testimony in October 2006 that he did not know whether Baucom would have required this surgery had the April 2005 injury not occurred.

Based on these unusual circumstances, it was hardly unreasonable or egregious for Pinnacle/Sisco not to advance the $82,000 in surgery fees to Baucom in October 2006. Medical records confirmed that he had reached maximum medical improvement 30 months earlier, at which time Pinnacle/Sisco’s maintenance and cure obligations abated. There had been another workplace accident involving another employer (Kinder Morgan) in the interim, such that Sisco/Pinnacle could reasonably have believed that Kinder Morgan was on the hook for any ensuing maintenance and cure that Baucom might be owed. The doctor who was recommending the surgery professed an inability to determine whether the surgery would have been needed had the intervening cause of the April 2005 accident never occurred, such that the medical testimony was not as cut and dried as plaintiff would have this Court find. Given this uncertainty as to whether Pinnacle/Sisco or someone else had a cure obligation to Baucom to pay for the surgery, the Court finds that defendants’ refusal to pay for plaintiffs surgery from October 2006 through the date of trial was not callous, unreasonable or in bad faith. Judgment will be entered in defendants’ favor on plaintiffs claim for exemplary damages and attorney’s fees arising from defendants’ failure to pay certain maintenance and cure benefits.

D. Damages.

Having found that Pinnacle/Sisco are liable on the Jones Act negligence cause of action, and that Sisco is liable on the unseaworthiness claim, all that remains is the computation of damages. Plaintiff seeks two categories of damages in connection with these claims, to-wit: past and future earnings, and pain and suffering. The Court now considers those aspects of damages, as well as potential upward and downward adjustments to same.

1. Past and Future Earnings.

a. Back Wages.

There is no dispute between the parties that lost wages (past and future) are a proper category of damages in cases under the Jones Act and for unseaworthiness under the general maritime law. See generally Wilburn v. Maritrans GP Inc., 139 F.3d 350, 361 (3rd Cir.1998) (compensatory damages for loss of future earning capacity are available in Jones Act cases); Vickers v. Tumey, 290 F.2d 426, 434 (5th Cir.1961) (“in a seaman’s action either under the Jones Act or maritime doctrine of unseaworthiness, a part of the recovery, if otherwise permissible, will be the loss of wages from the date of the injury down to the trial and, if established, the probable loss of wages in the future”).

Clearly, no lost wages are due for the period of December 8, 2003 (the date of the SISCO I accident) through May 19, 2004 (the date on which Dr. Patton released Baucom to return to work). During that time period, Pinnacle was paying Baucom weekly benefits in excess of $1,000, which surely included his foregone earnings. Presumably in recognition of that fact, plaintiff has not requested back pay for this interval. Nor does Baucom seek a lost wages award for the period from May 19, 2004 through April 21, 2005 (the date of the Kinder Morgan accident), during which time he was cleared to work full-time without restrictions. Plaintiff does request, however, an award of lost wages from April 2005 through the trial date, a figure that his expert economist, Dr. Rice, calculated as being $117,588, after backing out tax liability and business expenses. Sisco/Pinnacle’s economist, Dr. Boudreaux, offered a competing calculation of $98,036.17. The sole difference in such calculations appears to be the differing wage base utilized by the two experts in their computations. As stated supra, the Court finds that the wage base proffered by Dr. Boudreaux more accurately captures Baucom’s widely fluctuating earnings history from year to year, even when he was 100% healthy, and quite properly takes into account Baucom’s tendency to take off from work several months each year to pursue hobbies such as hunting and fishing. Accordingly, plaintiffs after-tax, after-business expense lost wages for the period of April 21, 2005 through trial are valued at $98,036.17.

From a causation standpoint, the Court finds that defendants’ negligence on December 8, 2003, and the resulting back injury to Baucom, played a part in bringing about plaintiffs lost earnings for the period of April 21, 2005 through trial. Therefore, those lost past wages are properly awarded to plaintiff on his Jones Act negligence claim. The Court does not find, however, that the higher proximate causation standard required for Baucom’s unseaworthiness claim is met with respect to these lost wages. Simply put, plaintiff has failed to show by a preponderance of the evidence that he would have been unable to work full-time as a crane operator from April 2005 through trial were it not for the intervening cause of the April 2005 injury at Kinder Morgan. He had been working fall-time in that occupation for nearly a year before that April 2005 injury, and there is no indication that he would have been unable to continue in that capacity had the Kinder Morgan accident never occurred; therefore, with respect to the unseaworthiness claim, the Court is of the opinion that the April 2005 accident was an intervening cause that broke the chain of causation between the December 2003 injury and plaintiffs lost wages from April 2005 through trial. Accordingly, no back wages will be awarded as to the unseaworthiness cause of action.

b. Future Wages.

Based on the expert calculations of Dr. Rice, submitted on an after-tax, diseount-ed-to-present-value basis, plaintiff requests lost future earnings of $394,085, to compensate him for lost earnings from the date of trial all the way through the end of his expected work life. To facilitate the analysis, the Court will divide the future earnings claim into two temporal periods: (a) from the date of trial through maximum medical improvement post-surgery; and (b) from maximum medical improvement through the end of Baucom’s working life.

Baucom claims lost future earnings from now until he reaches maximum medical improvement following the contemplated lumbar fusion surgery to be performed by Dr. Revels. The record is clear that he remains medically restricted from all work activity pending the eonclusion and recuperation from such surgery, and that such work restrictions were caused in part by defendants’ negligence in December 2003, so as to satisfy the relaxed Jones Act causation standard. Therefore, future wages are properly com-pensable to Baucom on the Jones Act claim for the period of time running from trial through his recuperation from surgery. Dr. Revels estimated the recovery period from surgery as being only a few months. The problem here is that plaintiff has introduced no evidence establishing when this surgery might reasonably occur. The information before the Court is that all financial obstacles to Baucom undergoing back surgery were lifted in January 2008, with the Kinder Morgan settlement. Plaintiff proffered no evidence explaining why that surgery could not be performed promptly as of January 2008, or why he had not received it as of the mid-February 2008 trial date. On this record, it appears that, had he pursued the matter with reasonable diligence, Baucom might have had this back surgery before or shortly after trial. He cannot delay that surgery indefinitely, or drag his feet in scheduling the surgery, and expect Pinnacle/Sisco to continue paying his lost wages all the while. Combining that observation with the “few months” of recuperation cited by Dr. Revels, the Court finds that an award of future lost earnings for six months is appropriate to compensate Baucom for his inability to work from the date of trial through the projected date of maximum medical improvement at the conclusion of his recuperation period from surgery, assuming he obtains the surgery reasonably promptly. Given the annual wage base of $44,788, six months of lost earnings would equate to half that amount, or $22,394. After reasonable deductions for taxes and discounting to present value pursuant to Culver v. Slater Boat Co., 722 F.2d 114 (5th Cir.1983) (“Culver II ”) (as both parties agree is appropriate), the future lost earnings awarded for the period of time encompassing plaintiffs surgery and post-surgery recuperation total $17,915.20.

With respect to the period running from the conclusion of Baucom’s surgery recuperation through the end of his working life, there is a failure of proof of a different kind. The record includes the testimony and reports of two dueling economists and two dueling vocational rehabilitation experts as to Baucom’s post-surgery job prospects and earnings potential. This evidence is largely unhelpful because it is all predicated on assumptions concerning plaintiffs post-surgical functional capacity and ability to work. Those assumptions have no basis in any facts in evidence. Indeed, the only record evidence (aside from hearsay testimony of Baucom as to what Dr. Revels allegedly told him, which this Court has discounted) of the likely results of the proposed surgery is the following exchange from the deposition of the surgeon himself:

“Q: Okay. Can you at this time state whether or not he would be able to work as a crane operator again?”

“A: I do not know.”

“Q: You do not know that he would not be able to also. Correct?”

“A: Correct.”

(Plaintiffs Exh. 17 (Sept.2007 dep.), at 39.)

Despite all of the economic, vocational and medical evidence in the record, then, the inescapable truth of the matter is that no one knows whether Baucom will be able to work after his surgery and, if so, to what extent or in what capacity. It is entirely possible that Baucom will be able to resume work as a crane operator on a full-time basis with no restrictions after he recovers from surgery. It is also possible that Baucom will not be able to return to work at all for the remainder of his working life. Between these extremes lie numerous other alternatives. There is absolutely no basis in the record for assigning any sort of probability to this broad continuum of potential outcomes. Eschewing any briefing on the subject in their post-trial submissions (despite being expressly directed to cover same), both parties simply throw the matter in the Court’s lap, essentially saying, “Here’s the range of possibilities, Judge. Pick the one you like the best.” This Court could make a guess that Baucom will be able to go back to work as a crane operator. This Court could make a guess that he will be confined to sedentary work as a dispatcher or escort vehicle driver, or that he will be able to work light duty as a delivery driver or courier. This Court could make a guess that the surgery will fail and that Baucom will be permanently disabled and unable to work for the rest of his life. But the central point is this: Each of these scenarios would be sheer speculation by the Court, untethered from any evidentiary foundation. Plaintiff has proffered no proof, expert or lay, from which the Court might be able to assign probabilities to these different possible outcomes, or otherwise to make factual findings as to their relative likelihood.

All of this uncertainty poses a formidable obstacle to plaintiffs quest to recover for future lost earnings. After all, “tort law requires an aggrieved plaintiff to prove its damages with a reasonable degree of certainty.” Guyana Tel. & Tel. Co. v. Melbourne Int'l Communications, Ltd., 329 F.3d 1241, 1248 (11th Cir.2003). “[D]amages may not be determined by mere speculation or guess.” Maiz v. Virani, 253 F.3d 641, 664 (11th Cir.2001); see generally Systrends, Inc. v. Group 8760, LLC, 959 So.2d 1052, 1076 (Ala.2006) (“It is true that damages may be awarded only where they are reasonably certain. Damages may not be based upon speculation.”) (citation omitted). Yet plaintiff would have this Court engage in just such speculation or guesswork to compute future lost earnings, where Baucom’s future earning capacity is unknown and unknowable because of his pending back surgery. The Court declines plaintiffs invitation to engage in a de facto coin-flipping, palm-reading, fortune-telling enterprise as to what plaintiffs functional capabilities will be following recuperation from surgery, where the evidence will not allow even reasonable inferences to be drawn as to whether and to what extent plaintiff will be able to work in the future. Plaintiff having failed to prove any future lost wages post-recuperation from surgery to a degree even approaching reasonable certainty, he will not receive an award for this category of damages.

2. Pain and Suffering/Non-Economic Damages.

The second major category of damages in play in this case is that of pain and suffering. In the presence of uncon-tradicted evidence of pain and suffering, a plaintiff bringing a claim in admiralty is entitled to a general damages award. See Levesque v. Marine Drilling Co., 783 F.Supp. 302, 308 (E.D.Tex.1992) (ordering new trial on damages where jury awarded plaintiff special damages for medical expenses and lost wages without awarding general damages for pain and suffering, where uncontroverted record evidence showed that plaintiff suffered pain from injury and underwent an operation). The Court finds that an award of general damages is appropriate here to compensate Baucom for the pain and suffering he has incurred as a result of defendants’ negligence and the unseaworthy condition of the SISCO I on December 8, 2003. The question is how large that award should be. Baucom requests a pain and suffering award of $500,000 or greater, while defendants peg what they contend to be a more reasonable figure at an amount somewhere between $10,000 and $150,000.

“Awards of pain and suffering are fact-specific and depend to a great extent on the factfinder’s observation of the plaintiff and its subjective determination of the amount needed to achieve full compensation.” Gautreaux v. Scurlock Marine, Inc., 84 F.3d 776, 783 (5th Cir.1996). Although the fixing of damages for pain and suffering is necessarily a highly subjective plaintiff-specific exercise, rendering comparisons to awards in other cases of limited value, the Court’s research has disclosed numerous instances where a plaintiff was awarded substantially less in general damages for pain and suffering than Baucom seeks here, despite similar or even more serious physical injuries. The Court derives “rough guidance” from these past awards. Williams v. Chevron U.S.A., Inc., 875 F.2d 501, 506 (5th Cir.1989)

After careful consideration of the evidence presented at trial, and after due consideration of the compensatory purposes and objectives of a general damages award, the Court finds that an appropriate award for pain and suffering (physical and mental) attributable to defendants’ negligence and the unseaworthy condition of the SISCO I is $125,000, of which $85,000 is allocated for past pain and suffering and $40,000 is allocated for future pain and suffering. In reaching this determination, the Court relies on a number of observations. First, although Baucom was out of work for five months after the December 2003 incident, no permanent disability impairment rating was attached to that injury. He was released to work with no restrictions of any kind, and passed multiple work-related physical examinations, within months after the SISCO I injury occurred. Second, while there is no question that Baucom experienced substantial discomfort (and sometimes outright agony) during that five-month period, his own testimony established that it was not constant unbearable pain; rather, he was able to minimize his discomfort through pain medication and reduction of his physical exertion level. Third, there is minimal evidence in the record of how Baucom’s injury has affected his everyday life. The Court understands that Baucom is at least temporarily unable to work and that he experiences bouts of significant pain, but the record is devoid of evidence as to what functional limitations Baucom experiences in his day-to-day affairs and daily life activities. Fourth, although plaintiff is correct that there is some evidence that he was referred to a mental health professional for treatment after his back injury, the record is undeveloped as to the nature of that treatment or any diagnoses resulting from same. Fifth, while the Court understands that plaintiff experiences excruciating pain now, and was obviously in considerable distress even as he testified from the witness stand at trial, that discomfort is attributable in substantial part to the intervening cause of the April 2005 accident. There is no reason to believe that plaintiffs pain levels would be nearly as pronounced as they are today had that April 2005 accident at Kinder Morgan not occurred. It would be unfair and inappropriate to hold Sisco/Pinnacle responsible for Baucom’s pain and suffering arising from the Kinder Morgan accident. Taken in the aggregate, these factors convince the Court that plaintiffs requested $500,000 figure for pain and suffering damages is unreasonable and grossly excessive, given the particularized circumstances of this case.

On the other hand, defendants’ attempts to minimize the pain and suffering award to a number in the low five figures are unpersuasive, as well. Contrary to defendants’ assertion that Baucom’s medical problems related to the December 2003 injury had been fully resolved as of the April 2005 injury, Dr. Revels’ testimony is quite clear that the underlying anatomical problem was the same, and that the April 2005 incident merely aggravated the subjective symptoms arising from that anatomical problem. For that reason, Sisco/Pinnacle are not absolved of legal responsibility for the pain and suffering that Baucom experienced after the April 2005 accident, that he experiences today, and that he will experience in the future, at least until he recovers from surgery months from now. Those problems all stem from the December 2003 injury, albeit with the additional aggravator of the April 2005 accident for which Sisco/Pinnacle is obviously not responsible. Therefore, the Court cannot agree with Sisco/Pinnacle’s argument that all responsibility for pain and suffering post-April 2005 should be shifted to Kinder Morgan. It was the December 2003 accident (caused by defendants’ negligence and the unseaworthy condition of the SISCO I) that created the underlying symptoms from which Baucom is suffering today; therefore, defendants’ suggestion that a general damages award of $10,000 to $18,000 would be appropriate strikes the Court as unreasonable and inadequate.

For all of the foregoing reasons, it is the determination of this Court that a reasonable award to compensate Baucom for pain and suffering arising from defendants’ negligence and the SISCO I’s unseaworthiness is one-quarter of the $500,000 figure he claims. Accordingly, plaintiff will be awarded an amount for pain and suffering in the amount of $125,000.

3. Comparative Negligence Defense.

In the Joint Pretrial Document (doc. 112), Sisco/Pinnacle asserted the affirmative defense of comparative negligence. “It is well established that comparative negligence applies to unseaworthiness claims as well as Jones Act claims.” Churchwell, 444 F.3d at 908. The comparative negligence defense exists