stevedore's judgment constituted negligence.
6. In the instant case, the vessel knew that the ladder rungs in the tween deck floor had been hidden by the thick paper laid down as a protection against moisture in the hold. Granted that this defect had been disclosed by the vessel to the stevedore. This warning, however, had been made at some indefinite time in the past and had been made to the stevedore and not to the longshoremen. The vessel chose to rely upon the judgment of the stevedore in protecting the safety of the longshoremen who were working in the tween deck.
7. Given the nature of the hazard involved, the stevedore's expectation that the longshoremen would remember past verbal warnings about the holes and, thus, avoid them, constituted poor judgment. Here were many sizeable holes, hidden by thick paper, in a busy workplace where men had to be constantly mindful of heavy loads of paper moving up and overhead out of the hold. Actual neutralization of the hazard was necessary. To be sure, there is no duty on the part of the vessel to supervise the unloading of the vessel by the stevedore. Scindia, 101 S. Ct. at 1620 n.10. In the instant case, however, the officers of the vessel had occasion to observe the stevedore's unloading of the cargo. It, therefore, should have been obvious to them that the stevedore was continuing to work despite a hazard that was still hidden and that the stevedore would not or could not remedy that hazard. The vessel, from the inception of the voyage, knew that the ladder rungs were concealed by thick paper and knew, or should have known, that such a concealed condition posed an unreasonable risk of harm to the longshoremen working on board. That knowledge, plus awareness of the stevedore's improvident conduct, should have prompted the vessel to intervene and to take measures that would have prevented harm to the longshoremen from this hidden shipboard defect. Failing this, it should have instructed the stevedore to stop work. The vessel's failure to take such action constituted negligence.
8. Among the damages to which an injured plaintiff is entitled are the following: "past lost wages, reduced by the effective tax rate; his probable pecuniary loss over the duration of his career, reduced to its present value; past medical expenses; future estimated medical expenses, if any; past and future pain and suffering; and loss of life's pleasures." Monaghan v. Uiterwyk Lines, Ltd., 607 F. Supp. 1020, 1023 (E.D. Pa. 1985).
9. The computation of lost wages is made up of various elements, the most significant of which is the lost wage itself. There should also be included, however, those fringe benefits accorded the worker. Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 534, 76 L. Ed. 2d 768, 103 S. Ct. 2541 (1983).
10. The collateral source rule, whereby "a defendant is liable for the full extent of what the plaintiff's harm would have been in the absence of any benefits provided by another source", Collins v. Star Warrant Shipping Co., 1987 U.S. Dist. LEXIS 12102 (E.D. Pa. December 31, 1987) (Pollak, J.), would permit an injured longshoreman to recover, as part of his lost wages, the value of fringe benefits normally included as part of his compensation, even if those fringe benefits were financed by the employer and payments were made directly into a separate fund. Id. at 4-6.
11. Pre-judgment interest, in maritime personal injury cases, should be awarded, unless there are exceptional circumstances which would make such an award unjust. The rate of pre-judgment interest is within the discretion of the court. Monaghan, 607 F. Supp. at 1026. Even though the Pennsylvania courts have modified the rules pertaining to pre-judgment interest, we still find Monaghan authoritative.
12. Exceptional circumstances exist when "the party requesting the interest has, (1) unreasonably delayed in prosecuting its claim, (2) made a bad faith estimate of its damages that precludes settlement, or (3) not sustained any actual damages. [Citations omitted]." Matter of Bankers Trust Co., 658 F.2d 103, 108 (3d Cir. 1981), cert. denied, 456 U.S. 961, 72 L. Ed. 2d 485, 102 S. Ct. 2038 (1982). Since we find no such exceptional circumstances in the instant case, the plaintiff is entitled to pre-judgment interest.
13. A foreign state which is not entitled to immunity under the Foreign Sovereign Immunities Act, 28 U.S.C.A. §§ 1602-1611 "shall be liable in the same manner and to the same extent as a private individual under like circumstances; . . . ." 28 U.S.C.A. § 1606. Pre-judgment interest has been awarded in a case brought under the Foreign Sovereign Immunities Act. Felice Fedder Oriental Art, Inc. and Felice Fedder v. James S. Scanlon and The United Kingdom, 708 F. Supp. 551, 1989 U.S. Dist. LEXIS 2578 (S.D.N.Y.). Were the instant shipowner a private shipowner, it would be liable for pre-judgment interest in a maritime personal injury case. Had Congress intended to preclude pre-judgment interest, it would have expressly said so as in the case of the United States under the Federal Tort Claims Act, 28 U.S.C.A. § 2674 (West 1965).
14. Since the rate of pre-judgment interest is a matter within the discretion of the court, Banker's Trust, 658 F.2d at 112; Monaghan, 607 F. Supp. at 1026, we choose to apply a rate of interest of 9%.
15. In the instant case, the plaintiff's damages amount to the following:
Past and Future Lost Wages
including Fringe Benefits
and allowing for deduction
of federal, state and local
income taxes and reduced by
3% to present value $ 120,595.00
Past Medical Expenses, as
per stipulation of counsel $ 7,769.25
Past and future pain and
suffering $ 60,000.00
Sub-Total $ 188,364.25
Pre-judgment Interest at
9% from the date of the
injury, December 30, 1986
on all past due amounts $ 38,143.75
TOTAL $ 226,508.00
VERDICT AND JUDGMENT
AND NOW, this 7th day of April, 1989, the court enters a verdict and judgment in favor of plaintiff, John Callen, and against defendants, OULU 0/Y and OY Finnlines, Ltd., in the amount of $ 226,508.00.