Simeon v. T. Smith & Son, Inc.

PER CURIAM: Jules Simeon (Simeon), a deckhand on a derrick barge owned by T. Smith & Son, Inc. (Smith), was badly injured when his foot and leg were caught in a mooring line running from his barge to an adjacent hopper barge being prematurely towed away by a tug owned by Lumar Marine, Inc. (Lumar). Simeon sued his employer, Smith, alleging Jones Act negligence and unseaworthiness. He sued Lumar alleging general maritime negligence. His wife sued both defendants for her loss of consortium. The jury found that Simeon was ten percent contributorily negligent and that Smith was fifty-eight percent negligent, but its barge seaworthy. The general maritime law claim against Lumar was simultaneously tried to the court, which accepted the jury’s advisory finding that Lumar was thirty-two percent negligent. The district court rendered judgment for Simeon against Smith and Lumar, severally, and for Mrs. Simeon against Lumar, based on the jury award, as remitted, in the Jones Act case, and otherwise on the district court’s damages findings. Each party appeals, raising various objections. We affirm in part, reverse in part, and remand. Facts and Proceedings Below Early on the morning of September 27, 1981, Simeon, then fifty-seven years old, reported to work on Smith’s derrick barge, the PENNY, in the Mississippi River near Belle Chase, Louisiana. The PENNY was assigned to unload iron ore from an oceangoing vessel and place it on a hopper barge. The PENNY was positioned between the vessel and the hopper barge, which was held to the PENNY by mooring lines. On the PENNY was a large crane equipped with a bucket to scoop the ore off the ocean-going vessel and swing the load over to the hopper barge. The PENNY had a crew of five: Simeon and a fellow deckhand, the crane operator, a flagman positioned on the ocean-going vessel to help guide the crane operator, and a foreman responsible for the entire operation. It took all day to fill the hopper barge with — 1424 — ore. By the end of the shift, in late afternoon, the hopper barge was full and instructions were given to release the mooring lines so that a tug — the M/V TAKO BANDIT owned by Lumar — could tow the loaded hopper barge away. Ordinarily it was not a complex matter to undo the mooring lines. The river current put tension on the mooring lines by pushing the hopper barge back as the lines were unwrapped from the bitts, but the tug waiting to pull the hopper barge away was supposed to gently push it against the current to compensate. When the lines were released, the deckhands signaled the tugboat pilot and he reversed directions and towed the hopper barge away. On this day, the operation did not go so smoothly on the PENNY. Just as Simeon was almost finished unwrapping the bow mooring line, he slipped on some ore that had fallen onto the PENNY’S deck; his right leg and foot were then caught in the mooring line at its end where a knot had been tied to stop the line from fraying. The hopper barge was drifting back, either with the current or because the tug, Lu-mar’s M/V TAKO BANDIT, had begun towing it, and Simeon’s foot, entangled in the moving mooring line, was nearly severed from his leg. After a series of operations and two months’ hospitalization, Simeon’s foot was saved. Evidence at trial showed, however, that Simeon’s condition was not normal after his operations. His foot hurt constantly, he had to walk with a cane, except around the house, and he could go only short distances before painful swelling occurred. He could not return to work and became gloomy and depressed. The quality of his marriage deteriorated and because Simeon’s painful foot made him restless at night, his wife was forced to sleep in a separate bedroom. The day before the third anniversary of his accident, Simeon and his wife filed suit against Smith and Lumar in the United States District Court for the Eastern District of Louisiana.1 The two defendants filed cross-claims against each other for contribution. Simeon argued that the PENNY was unseaworthy and that his employer was negligent under the Jones Act because of the iron ore scattered on deck, the knotted mooring line, and the failure of the other deckhand to assist him in unwrapping the bow mooring line. Simeon asserted that Lumar was ■ negligent under general maritime law for towing the hopper barge away before Simeon had released the mooring line.2 The Jones Act and unseaworthiness claims against Smith were tried to the jury3; the general maritime law negligence claim against Lumar was simultaneously tried to the court with the jury acting in an advisory capacity. The jury refused to find unseaworthiness, but found negligence on the part of Smith (fifty-eight percent), Lu-mar (thirty-two percent), and Simeon (ten percent). The jury awarded $1,250,000 for — 1425 — Simeon’s past and future pain and suffering, $30,000 for his future medical expenses, and also awarded his wife $80,000 for her loss of consortium. The district court remitted the jury’s pain and suffering award against Smith to $750,000, and Si-meon accepted this remittitur. In its capacity as trier of fact of the maritime claim against Lumar, the district court rejected the jury’s $1,250,000 pain and suffering award and chose instead the sum of $450,-000. The district court accepted the jury’s damage awards for future medical expenses and loss of consortium and also accepted the jury’s apportionment of responsibility for the accident. The district court then entered judgment for Simeon as follows: against Smith— $508,362.75 (fifty-eight percent of $876,-487.50, which is the sum of $750,000 [pain and suffering], $30,000 [future medical], and $96,487.50 [stipulated lost wages still unpaid])4; against Lumar5 — $184,5,76 (thirty two percent of $576,487.50, which is the sum of $450,000 [pain and suffering], $30,000 [future medical], and $96,487.50 [stipulated lost wages still unpaid] ).6 With regard to Simeon’s damages, the court refused to enter a joint judgment against both Lumar and Smith; under the judgment rendered, each defendant is liable only for its respective proportion of total causation. The court additionally assessed Lumar alone with all of Mrs. Simeon’s loss of consortium damages (less Simeon’s ten percent contributory negligence) because the Jones Act, which was the only basis for Smith’s liability, does not recognize a claim for loss of consortium. The court refused to order prejudgment interest on Simeon’s Jones Act recovery against Smith because that claim was tried to the jury. The maritime claim against Lumar was bench tried, so the court ordered prejudgment interest on the entire recovery against Lumar beginning from the date of the accident. The parties have raised nine issues on appeal: (1) whether the jury verdict against Smith was the product of passion and prejudice so as to require a new trial; (2) whether the pain and suffering damages against Smith should be further remitted below $750,000; (3) whether the district court’s award of $450,000 for pain and suffering in Simeon’s action against Lumar was adequate; (4) whether there is sufficient evidence to support the $30,000 award for future medical expenses; (5) whether the district court erred in holding Smith and Lumar severally, rather than jointly, liable; (6) whether Smith can be liable to Mrs. Simeon for loss of consortium based on negligence; (7) whether the district court erred in the consortium claim by not rendering judgment n.o.v. that the PENNY was unseaworthy; (8) whether the district court erred in ordering Lumar to pay the entirety of Mrs. Simeon’s loss of consortium recovery (less Simeon’s ten percent contributory negligence) even though Lu-mar was only thirty-two percent responsible for the accident; and (9) whether the district court’s award of prejudgment interest against Lumar was in error. Discussion I. Smith’s “excessiveness” motion for new trial In a post-trial motion, Smith requested a new trial on grounds that the — 1426 — jury verdict resulted from passion and prejudice. The district court held that the jury’s award of $1,250,000 against Smith for Simeon’s pain and suffering was excessive and ordered a new trial unless Simeon .would accept a remittitur to $750,000. Si-meon accepted the remittitur, but Smith continues to assert that a new trial was in order. We review the district court’s denial of a motion for new trial for abuse of discretion. Complete Auto Transit, Inc. v. Floyd, 249 F.2d 396, 399 (5th Cir.1957), cert. denied, 356 U.S. 949, 78 S.Ct. 913, 2 L.Ed.2d 843 (1958). Almost half a century ago, - our Court stated, “[Wjhile mere excessiveness in the amount to be awarded may be cured by a remittitur, that excessiveness which results from passion and prejudice, however natural the resentment which arouses it, may not be so cured.” Brabham v. Mississippi, 96 F.2d 210, 214 (5th Cir.), cert. denied, 305 U.S. 636, 59 S.Ct. 103, 83 L.Ed. 409 (1938). A new trial must be ordered when the verdict results from passion and prejudice. Smith argues that Simeon made several improper attempts to arouse passion and prejudice in the jury. His counsel asked Simeon to walk to a chalkboard to draw a diagram. (This was inflammatory, claims Smith, because counsel commented on Si-meon’s usual use of a cane, and the jury’s attention was focused on Simeon’s struggle to walk.) Simeon’s counsel introduced “gruesome” pictures of his injury; in her testimony, Simeon’s daughter commented that as a child she had bounced on her father’s foot; Simeon’s doctor described one particular treatment as a “crucifixion”; Simeon quite vividly described the injury and how it occurred, and also mentioned his annual salary and that his compensation had been cut off. Smith’s counsel lodged no contemporaneous objections to any of these occurrences except to Simeon’s remark about his wages, and the district court instructed the jury to ignore Simeon’s comment. In those circumstances, we do not believe the cited instances required a new trial in lieu of a remittitur. The jury no doubt had observed Simeon’s hobbled gait as he took the witness stand. Any additional impact on the jury as it watched Simeon walk to the chalkboard was not seriously prejudicial. The allegedly “gruesome” photographs simply show the condition of Si-meon’s foot as he recuperated in the hospital. Any “gruesomeness” was due wholly to the nature of Simeon’s injury, and it is not shown that any other reasonably accurate and complete photographic portrayal would have been less gruesome. The testifying physician’s reference to a particular procedure as a “crucifixion” was not without some legitimacy because that is apparently the shorthand medical term for that procedure, and it was not an inflammatory label concocted for trial. Simeon’s description of the injury was vivid, but we do not believe he resorted to an excessively dramatic portrayal of how his foot was severed. The $1,250,000 award was excessive and, had Simeon not accepted the remit-titur, a new trial would have been in order simply because the award was so “inordinately large as to be contrary to right reason.” Caldarera v. Eastern Airlines, Inc., 705 F.2d 778, 784 (5th Cir.1983) (quoting Floyd, 249 F.2d at 399). Nevertheless, the evidence on which Smith relies to prove that the verdict resulted from passion and prejudice is not strongly convincing, particularly in light of the failure to object in all instances save one where the objection was sustained. Hence, the district court did not abuse its discretion in refusing to order a new trial. II. Remittitur The district court did not err in remitting Simeon’s damages against Smith. In fact, the damages must be further remitted. It is well settled that a jury's damages award should not be disturbed unless it is “entirely disproportionate to the injury sustained.” Caldarera, 705 F.2d at 784; see also Haley v. Pan American World Airways, Inc., 746 F.2d 311, 317 (5th Cir.1984). If the jury’s award is unacceptably disproportionate, either the district or appellate court should reduce the award to “the maximum amount the jury could properly have awarded.” Id. (citing Fifth Circuit precedent); see also Zeno v. — 1427 — Great Atlantic & Pacific Tea Co., 803 F.2d 178, 181 (5th Cir.1986). While pain and suffering is, to a large degree, not susceptible to monetary quantification, and the jury thus necessarily has especially broad leeway, nevertheless, “ ‘[t]he sky is simply not the limit.’ ” Osburn v. Anchor Laboratories, Inc., 825 F.2d 908, 920 (5th Cir.1987) (quoting Caldarera, 705 F.2d at 784). Drawing a measure of general guidance from, though not being rigidly circumscribed by, cases involving somewhat comparable injuries,7 it is clear to us that the jury’s pain and suffering award of $1,250,-000 was in excess of the maximum reasonable recovery. The district court, which heard the same evidence as the jury, assessed pain and suffering damages at $450,000, and even this is a more generous award than many given in recent years for similar injuries. We hold that $600,000 is the maximum reasonable damages figure for Simeon’s pain and suffering in his action against Smith. If Simeon will not accept a remittitur on this basis, a new trial must be held. We further hold that the district court’s award of $450,000 for pain and suffering in Simeon’s action against Lumar was not clearly erroneous or inadequate. III. Future medical expenses The jury also awarded $30,000 for Simeon’s future medical expenses. There is no evidence in the record to support an award of this size, and so it necessarily is based on impermissible conjecture. See Haley v. Pan American World Airways, Inc., 746 F.2d 311, 316 (5th Cir.1984). The only record evidence regarding Simeon’s future medical expenses was testimony — 1428 — from his physician, who said there was a fifty-fifty chance that Simeon would need another operation, the total cost of which would be about $10,000.8 Accordingly, we order a remittitur reducing Simeon’s award for future medical expenses to $10,000, and if this is not accepted, a new trial will be required. Based on the record evidence, this amount represents the maximum reasonable recovery for future medical expenses. IV. Joint or several liability? As to Simeon’s damages, the district court entered judgment against Smith and Lumar severally. (Part VI, infra, of our opinion discusses the apportionment of Mrs. Simeon’s recovery for loss of consortium.) We agree with the contention raised by Simeon in his cross-appeal that judgment should have been entered against the defendants jointly. A. Admiralty Like the common law, W. Prosser & P. Keeton, Prosser & Keeton on the Law of Torts § 47 at 328 (1984), the general maritime law has long recognized the concept of joint liability. For example, in The Atlas, 93 U.S. 302, 23 L.Ed. 863 (1876), the Supreme Court held that the insurer of cargo lost in a collision between two vessels caused by the fault of both could recover all of its damages from one vessel. The Court borrowed this rule from the common law, which recognized a plaintiff’s right “to sue ... all the wrong-doers, or any one of them, at his election; and it is equally clear, that, if he did not contribute to the disaster, he is entitled to judgment in either case for the full amount of his loss.” Id., at 315, 23 L.Ed. at 866; see also The Alabama, 92 U.S. 695, 23 L.Ed. 763 (1876); The George Washington, 76 U.S. 513, 19 L.Ed. 787 (1870); The Juniata, 93 U.S. 337, 23 L.Ed. 930 (1876); The Sterling, 106 U.S. 647, 1 S.Ct. 89, 90, 27 L.Ed. 98 (1882) (describing the joint liability rule in admiralty as “well-established”). Neither the Supreme Court nor the lower courts have ever retreated from the rule of joint liability under maritime law. See, e.g., Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2756 n. 7, 61 L.Ed.2d 521 (1979); Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 2178, 40 L.Ed.2d 694 (1974); Seal Offshore, Inc. v. American Standard, Inc., 777 F.2d 1042 (5th Cir.1985); Todd Shipyards Corp. v. Auto Transportation, S.A., 763 F.2d 745, 756 (5th Cir.1985); Central Rivers Towing, Inc. v. City of Beardstown, Ill., 750 F.2d 565, 575 (7th Cir.1984). Collision cases provided the context in which joint liability was applied most frequently,9 but the rule of joint liability also has been applied in cases, like Simeon’s, involving other maritime fault-based claims. See, e.g., Cooper Stevedoring, 94 S.Ct. at 2178 (commenting that plaintiff longshoreman who slipped while loading vessel “could have proceeded against either The Vessel or [the nonemployer stevedore company, which had created the dangerous condition in loading at a prior port] or both of them to recover full damages for his — 1429 — injury”); Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir.1987).10 Defendants note that at common law any negligence on the part of the plaintiff barred his recovery, e.g., W. Prosser & P. Keeton, supra, § 65 at 461, and assert that joint liability was designed to soften the impact of the harsh rule of contributory negligence. Defendants reason, therefore, that because the trend developing over the past twenty-five years or so has been for states to replace the common-law rule of contributory negligence with some version of comparative fault, id. § 67 at 471, the concept of joint liability should likewise be retired. Whatever the logic of this argument, it overlooks the fact that “[mjost jurisdictions which have adopted comparative negligence have retained the common law rule of joint and several liability....” Id. at 475; see F. Harper, F. James, 0. Gray, 3 The Law of Torts § 10.1, at 31 (2d ed. 1986). More importantly, defendants ignore the fact that maritime law, which historically has adhered to the rule of joint liability, early on rejected the common law’s rule of contributory negligence. See generally M. Norris, 2 The Law of Seamen § 30:32 (1985); The Max Moms, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586 (1890). In The Max Morris, the Supreme Court noted that contributory negligence as a bar to recovery in ship collision cases was rejected in The Catharine v. Dickinson, 17 How. 170, 15 L.Ed. 233 (1855), which adopted the well established English rule of divided damages. However, noted the Court, the lower federal courts were in disagreement over whether to apply the common law’s rule of contributory negligence outside the collision context. 11 S.Ct. at 32. The Max Morris, which was not a collision case, resolved this conflict. That case was an admiralty suit brought by a longshoreman who fell from a vessel’s bridge to the deck while loading coal. Although the longshoreman was contribu-torily negligent, the Supreme Court held that “[cjontributory negligence in a case like the present should not wholly bar recovery,” id. at 33, but would merely reduce it. Id. The Supreme Court has never wavered from The Max Morris. Justice Black’s comment more than thirty years ago in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 204, 98 L.Ed. 143 (1953), remains an accurate description of this aspect of admiralty law: “The harsh rule of the common law under which contributory negligence wholly barred an injured person from recovery is completely incompatible with modern admiralty policy and practice.” See also Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2755 n. 2, 61 L.Ed.2d 521 (1979); Lewis v. Timco, Inc., 716 F.2d 1425, 1427 (5th Cir.1983) (en banc). In multiple defendant cases where plaintiff also is negligent, it has never been suggested that joint liability is inapplicable. In Gele v. Chevron Oil Co., 574 F.2d 243 (5th Cir.1978), the accident occurred when a pleasure fishing boat collided with an oil company flare pipe in the Gulf of Mexico. The plaintiff was a passenger on the' fishing boat. The district court found that the oil company was wholly responsible; we held this finding clearly erroneous on grounds that those operating the fishing boat were partly to blame because the boat had been traveling at an “imprudent” speed. Id. at 249. We remanded the case for a determination of whethér plaintiff was partly responsible for operating the fishing boat. Speaking for the Court, Judge Brown observed in Gele that (1) any negligence by plaintiff would not bar his recovery, but merely reduce it, id. at 250, and (2) that plaintiff had a “right to collect all his damages from one party in the event he is unable to obtain a relative portion of — 1430 — damages from each party at fault.” Id. at 251; see also Empire Seafoods, Inc. v. Anderson, 398 F.2d 204 (5th Cir.), cert. denied, 393 U.S. 983, 89 S.Ct. 449, 21 L.Ed.2d 444 (1968) (holding that the joint liability rule applies even when plaintiff is contribu-torily negligent); Drake Towing Co. v. Meisner Marine Construction Co., 765 F.2d 1060, 1067 (11th Cir.1985) (holding that plaintiff could recover all damages except those representing his share of negligence from one of two joint tort-feasors); Joia v. Jo-Ja Service Corp., 817 F.2d 908 (1st Cir.1987) (same).11 In sum, our investigation shows that under maritime law concurrent tort-feasors are jointly liable, even when plaintiff is contributorily negligent. However, only Lumar was a maritime defendant. Smith’s liability arises solely under the Jones Act; hence, we must determine whether a rule of joint liability is consistent with that statute. B. The Jones Act The Jones Act, 46 U.S.C.App. § 688, incorporates the Federal Employers’ Liability Act (FELA), 45 U.S.C. § 51 et seq. E.g., Hopson v. Texaco, Inc., 383 U.S. 262, 86 S.Ct. 765, 766, 15 L.Ed.2d 740 (1966). The FELA, in turn, creates federal rights “largely fashioned from the common law ... except as Congress has written into the Act different standards.” Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 1064, 87 L.Ed. 1444 (1943); see also Hall v. Minnesota Transfer Ry. Co., 322 F.Supp. 92, 94 (D.Minn.1971). Therefore, we must construe the FELA, and hence the Jones Act, consistent with the common law, except where the statute explicitly departs from the common law or has been judicially construed to do so. There are, of course, important departures in the FELA from the common law. For example, the FELA abolishes the common law’s fellow servant rule, Sinkler v. Missouri Pacific R.R., 356 U.S. 326, 78 S.Ct. 758, 762, 2 L.Ed.2d 799 (1958), eliminates the absolute defenses of contributory negligence, 45 U.S.C. § 51, and assumption of risk, 45 U.S.C. § 54, and incorporates a featherweight standard of causation, e.g., Webb v. Illinois Central R.R., 352 U.S. 512, 77 S.Ct. 451, 454, 1 L.Ed.2d 503 (1957). However, joint liability was the rule at common law, and we have not found any case holding that the FELA or the Jones Act has changed this. As noted, contributory negligence is not a complete bar to recovery under the FELA (and the Jones Act), but merely reduces plaintiff’s recovery. C. Joint liability of Jones Act defendant with general maritime defendant Defendants argue that even if joint liability is proper as to maritime defendants or Jones Act defendants, it is not proper to — 1431 — cause a Jones Act defendant to be jointly liable with a maritime defendant. For this proposition defendants cite Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), a case in which the Supreme Court held that negligent defendants were not jointly liable with a tort-fea-sor whose liability arose from unseaworthiness because unseaworthiness “rests upon an entirely different basis” from negligence. Id., 66 S.Ct. at 875. The basis of Smith’s liability is the Jones Act, while Lumar’s liability arises under the general maritime law. But despite the fact that the respective obligations of Lumar and Smith toward Simeon arise from different sources, the obligation is the same: to avoid fault by acting reasonably. Sieracki is distinguishable from this case on grounds that unseaworthiness is not based on fault. 66 S.Ct. at 877; Cooper Stevedoring, 94 S.Ct. at 2179 (commenting that unseaworthiness defendant not jointly liable with negligent defendant because unseaworthiness does not require a showing of fault); see Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971); cf. Restatement (Second) of Torts § 876 caveat (1979) (ALI takes no position on whether one acting in concert with another should be liable for acts of the other when the liability of either is based on strict liability). By contrast, both the Jones Act and maritime negligence are fault-based, and so we believe the Sieracki “rule” is inapplicable. Defendants argue that because the Jones Act burden of causation is lighter than that applied to a maritime law negligence claim, e.g., Chisholm v. Sabine Towing & Transportation Co., 679 F.2d 60, 62 (5th Cir.1982) (citing cases), the Sieracki “rule” should apply to prevent the judgment in this case from being joint. Defendants do not cite any case suggesting that the different burden of causation applied to these two bases of recovery is sufficient to take the case out of the rule of joint liability. On the contrary, there is precedent for holding a Jones Act defendant jointly liable with a defendant whose negligence arises under state or general maritime law. See Joia v. Jo-Ja Service Corp., 817 F.2d 908, 915-18 (1st Cir.1987); Ebanks v. Great Lakes Dredge & Dock Co., 688 F.2d 716 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103 S.Ct. 1774, 76 L.Ed.2d 346 (1983). D. Joint liability Accordingly, we sustain Simeon's claim on his cross-appeal that the district court erred by making the judgment in his favor against Smith and Lumar several only, with the liability of each such defendant limited to the percentage of Simeon’s damages corresponding to the percentage of fault of that particular defendant (fifty-eight percent for Smith; thirty-two percent for Lumar). Smith and Lumar, therefore, are jointly and severally liable for ninety percent (one hundred percent, less Simeon’s ten percent contributory negligence) of Si-meon’s damages. Application of the rule of joint liability is somewhat complicated in the present case by reason of there being different pain and suffering awards in the actions against the different defendants, $600,000 (assuming that Simeon accepts the remittitur we order) in Simeon’s jury-tried Jones Act case against Smith, and $450,000 in Simeon’s bench-tried general maritime law case against Lumar. Simeon’s total damages in his action against Smith are thus $706,-487.50 ($600,000 pain and suffering, plus $10,000 future medical, plus $96,487.50 stipulated lost wages still unpaid, see note 2, supra, assuming Simeon accepts our re-mittiturs on the first two items); and his total damages in his action against Lumar are $556,487.50 ($450,000 pain and suffering, plus $10,000 future medical, plus $96,-487.50 stipulated lost wages still unpaid, again assuming Simeon accepts our remit-titur on the future medical). On these figures, Simeon will have judgment against Smith and Lumar, jointly and severally, for $500,838.75 (which is ninety percent— one hundred percent, less Simeon’s ten percent negligence—of the $556,487.50 which represents Simeon’s total damages that are common to his actions against both Smith and Lumar), and Simeon will additionally have judgment against Smith alone for the further sum of $135,000 (ninety percent of — 1432 — the $150,000 which represents the excess of Simeon’s total damages in his action against Smith over his total damages in his action against Lumar).12 V Unseaworthiness Mrs. Simeon asserts that there is insufficient evidence to support the verdict that Smith’s barge, the PENNY, was seaworthy.13 Neither of the Simeons asked the court for a directed verdict on unseaworthiness — either after resting their cases or after defendants rested. (Nor, for that matter, did either seek a judgment n.o.v. or new trial on this basis after the jury found the PENNY seaworthy.) “It is well-settled in this Circuit that in the absence of a motion for a directed verdict at the close of all the evidence, the sufficiency of the evidence to support a jury verdict is not reviewable on appeal. Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978). Appellate inquiry is limited to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ Id.” Shipman v. Central Gulf Lines, Inc., 709 F.2d 383, 385 (5th Cir.1983). Certainly by this standard of review, there is sufficient evidence to support the jury’s finding that the PENNY was seaworthy. Although the shipowner has an absolute duty to provide a seaworthy vessel, e.g., Mitchell v. Trawler Racer, Inc., 362 U.S. — 1433 — 539, 80 S.Ct. 926, 932, 4 L.Ed.2d 941 (1960); Brunner v. Maritime Overseas Corp., 779 F.2d 296, 298 (5th Cir.), cert. denied, 476 U.S. 1115, 106 S.Ct. 1971, 90 L.Ed.2d 655 (1986), the vessel need not be “accident-free.” Mitchell, 80 S.Ct. at 933. “The duty is absolute, but it is a duty only to furnish a vessel and appurtenances reasonably fit for their intended use. The standard is not perfection, but reasonable fit-ness_” Id. (emphasis added); see Stevens v. East-West Towing Co., 649 F.2d 1104, 1107-08 (5th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1007, 71 L.Ed.2d 298 (1982). The jury charge paraphrased this passage from Mitchell. The Simeons argue that the iron ore scattered on deck, the knot in the mooring line, and the failure of the other deckhand to assist Simeon rendered the PENNY unseaworthy. A reasonable jury could weigh this evidence and still conclude that the PENNY was “reasonably fit” for its intended use as a derrick barge. The Simeons contend, however, that the jury’s verdict of Jones Act negligence against Smith necessarily includes a finding of unseaworthiness. We cannot agree. Both the Supreme Court, e.g., Mitchell, 80 S.Ct. at 932; Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971), and our Court, e.g., Thezan v. Maritime Overseas Corp., 708 F.2d 175, 180 (5th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984); Alverez v. J. Ray McDermott & Co., 674 F.2d 1037, 1041 (5th Cir.1982), have emphasized that the Jones Act and unseaworthiness are distinct theories of recovery. The settled rule in the Fifth Circuit is that there is no fundamental, necessary inconsistency between the two verdicts of negligence and seaworthiness. Our holding in Brunner, 779 F.2d at 298-99, is instructive. The plaintiff had slipped in some oil on the deck of his vessel. This single defect was the basis for both his Jones Act and unseaworthiness claims. As here, the jury held the employer negligent, but the vessel seaworthy. We held that these were not inconsistent verdicts: “Although these answers may not achieve legal nicety, they are not irreconcilable. We do not have the right to second guess a jury that may decide a small oil spill on a deck does not necessarily make an 80,000 ton tanker unsea-worthy even if the spill got there negligently.” Id. at 299. See also Kokesh v. American Steamship Co., 747 F.2d 1092, 1094 (6th Cir.1984) (same); cf. Thezan, 708 F.2d at 180 (same, but plaintiff had also made negligence claims unrelated to seaworthiness); Alverez, 674 F.2d at 1041 (same as Thezan); Gosnell v. Sea-Land Service, Inc., 782 F.2d 464, 467 (4th Cir.1986) (verdicts not inconsistent because of much lighter causation burden under Jones Act). But see Lee v. Pacific Far East Line, Inc., 566 F.2d 65, 67 (9th Cir.1977). In sum, there is no plain error in the finding of seaworthiness. In light of Brunner and related cases, we do not believe the jury’s finding of seaworthiness is fatally undermined by its verdict of Jones Act negligence. VI. Apportionment of loss of consortium damages (a) The jury and the district court found Mrs. Simeon’s loss of consortium damages to be $80,000. Smith is partly responsible for causing these damages as a matter of fact. However, as stated in part V, supra, Smith has been acquitted of unseaworthiness under general maritime law. Accordingly, Smith’s only basis for liability in this case is negligence, and, as Smith is seaman Simeon’s employer, it has no negligence liability to him under the general maritime law but only under the Jones Act, and a Jones Act employer is not liable for loss of consortium damages to the spouse of the employee seaman. E.g., Beltia v. Sidney Torres Marine Transport, Inc., 701 F.2d 491, 492-93 (5th Cir.1983); Cruz v. Hendy International Co., 638 F.2d 719, 723 (5th Cir.1981). (b) As a general maritime law defendant which is not the injured seaman’s employer, Lumar is liable for loss of consortium damages based on its negligence, — 1434 — see American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980); Tullos v. Resource Drilling, Inc., 750 F.2d 380, 385-86 (5th Cir.1985), and the district court ordered Lumar to pay Mrs. Simeon $72,000, an amount representing all her loss of consortium damages, less a ten percent deduction for Simeon’s contributory negligence.14 Based on our holdings in part IV, supra, we reject Lumar’s claim that it should not be liable for as much as ninety percent of Mrs. Simeon’s loss of consortium damages, since it was only thirty-two percent at fault. For the same reasons, we decline to follow the dissent’s theory that Lumar should only be liable for 32/42nds of Mrs. Simeon’s loss of consortium damages. (c) We also hold that Lumar is not entitled to contribution from Smith in respect to Lumar’s loss of consortium liability to Mrs. Simeon. The traditional view is that there can be no contribution between concurrent tort-feasors unless they share a “common legal liability” toward the plaintiff. F. Harper, F. James, O. Gray, 3 The Law of Torts § 10.2 at 46 (2d ed. 1986); W. Prosser & P. Keeton, supra, § 50 at 339-40. The contribution action arises from the original obligation that the party cast in contribution owed to the plaintiff. “If there was never any such liability, as where the contribution defendant has the defense of family immunity, assumption of risk, or the application of an automobile guest statute, or the substitution of workers’ compensation for common law liability, then there is no liability for contribution.” W. Prosser & P. Keeton, supra, § 50 at 339-40. E.g., Restatement (Second) of Torts § 886A, comment g (1979); Green v. United States Dept. of Labor, 775 F.2d 964, 971 (8th Cir.1985); Fischbach & Moore International Corp. v. Crane Barge R-14, 632 F.2d 1123, 1125 (4th Cir.1980); Jones v. Schramm, 436 F.2d 899, 901 (D.C.Cir.1970); Yellow Cab Co. v. Dreslin, 181 F.2d 626 (D.C.Cir.1950); see Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2765 n. 2, 61 L.Ed.2d 521 (1979) (Blackmun, J., dissenting).15 In this case, we follow the traditional view. To allow Lumar an action in contribution against Smith would be inconsistent with our cases holding that the Jones Act employer is not responsible for loss of consortium damages. See Beltia, supra; Cruz, supra. Somewhat analogous is Halcyon Lines v. Haenn Ship Ceiling & Refitting Corp., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), which held that the shipowner cast in liability for all damages had no right of contribution from the plaintiff longshoreman’s employer, who was also allegedly at fault. See also Atlantic Coast — 1435 — Line R. Co. v. Erie Lackawanna R. Co., 406 U.S. 340, 92 S.Ct. 1550, 32 L.Ed.2d 110 (1972) (same); Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106, 94 S.Ct. 2174, 2177-79, 40 L.Ed.2d 694 (1974) (explaining that Halcyon and Atlantic Coast prohibited contribution because the employers in those cases were protected from a direct claim by the LHWCA). See also Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 99 S.Ct. 2753, 2757, 61 L.Ed.2d 521 (1979) (same). Sometimes a “concurrent” tort-feasor who is immune from the plaintiffs direct action and thus immune from a traditional contribution claim, owes the other concurrent tort-feasor some independent duty, or has made some express or implied promise to that tort-feasor so that a “contribution” action is permissible. This type of “contribution” does not arise because of an obligation running from the contributing tort-feasor to the plaintiff; it rather arises because of the relationship directly between the concurrent tort-feasors themselves. See Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963); Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133 (1956) (permitting indemnity claim by shipowner against LHWCA employer on grounds that employer had breached its contractual obligation running to shipowner); Lockheed Aircraft Corp. v. United States, 460 U.S. 190, 103 S.Ct. 1033, 74 L.Ed.2d 911 (1983) (holding that the exclusive liability protection afforded the United States by Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq., would not bar an indemnity claim by a concurrent tort-feasor, provided there was some substantive law of indemnity on which the claim could be based); Travelers Insurance Co. v. United States, 493 F.2d 881, 886 (3d Cir.1974) (discussing Weyerhaeuser). In this case, no party has sought to prove the existence of any such obligation running directly from Smith to Lumar. Therefore, we apply the traditional view of no contribution as exemplified by cases such as Halcyon, and deny Lumar contribution from Smith respecting Mrs. Simeon’s loss of consortium. VII. Prejudgment interest We must modify the district court’s award of prejudgment interest. The court refused to order prejudgment interest on the Jones Act damages awarded by the jury against Smith. This ruling is correct because Smith’s liability arises under the Jones Act and “prejudgment interest is not recoverable in Jones Act cases tried to a jury.” See McPhillamy v. Brown & Root, Inc., 810 F.2d 529, 532 n. 1 (5th Cir.1987) (citing Fifth Circuit precedent). Lumar’s liability to Simeon and his wife arises under general maritime law after a bench trial. The district court exercised its discretion and ordered prejudgment interest on those maritime damages. This was proper because “[t]he award of prejudgment interest under maritime law is ‘well-nigh automatic.’ ” Id. (quoting Reeled Tubing, Inc. v. M/V CHAD G, 794 F.2d 1026, 1028 (5th Cir.1986)). However, the district court should not have ordered prejudgment interest on all the damages recoverable from Lumar because some of them were to compensate for future (i.e., posttrial) harm. Martin v. Walk, Haydel & Associates, 794 F.2d 209, 212 (5th Cir.1986); Williams v. Reading & Bates Drilling Co., 750 F.2d 487, 491 (5th Cir.1985). As in Martin, we remand this case so that the district court may apportion damages (both economic and other) between past and future harm and award prejudgment interest only on those damages that the plaintiff in question had incurred as of the initial judgment date.16 Lumar must pay prejudgment interest on so much of the $500,838.75 damages for which it is liable to Simeon in Simeon’s case — 1436 — against it as represents damages incurred prior to trial, and on so much of Mrs. Simeon’s $72,000 loss of consortium damages for which it is liable as represents damages incurred by her prior to trial, but Lumar may not recover in a contribution action against Smith any amount representing prejudgment interest paid to the Si-meons. Smith is not directly obligated to pay Simeon prejudgment interest and, as noted in part VI, supra, there has been no suggestion of any independent obligation running from Smith to Lumar requiring it to indemnify or share in damages for which Smith could not have been directly responsible. Conclusion In sum, we: (1) reject Smith’s claim that it is entitled to a new trial; (2) order a further remittitur to $600,000 of Simeon's pain and suffering damages in his action against Smith; (3) order a remittitur to $10,000 of Simeon’s future medical expense damages in his actions against Smith and Lumar17; (4) reject Simeon’s attack on the district court’s fixing of his pain and suffering damages at $450,000 in his action against Lumar; (5) affirm the district court’s unattacked award of contribution to Smith and against Lumar respecting Smith’s pretrial payments to Simeon; (6) sustain, as stated in part IV, supra, hereof, Simeon’s contention that the district court erred in making the judgment against Smith and Lumar entirely several, and direct that, if Simeon accepts our remittiturs, Simeon have judgment against Smith and Lumar jointly and severally for the principal sum of $500,838.75 and also against Smith alone for the further principal sum of $135,000 (all such sums to bear appropriate postjudgment interest from the initial judgment); (7) hold that Smith and Lumar are entitled to contribution from one another in respect to Simeon’s actions against them as stated in note 12, supra; (8) reject the attacks of the Simeons on the finding of the jury in Smith’s favor on unseaworthiness; (9) reject Mrs. Simeon’s claim that the district court erred by denying her loss of consortium recovery from Smith based on Smith’s negligence; (10) sustain Mrs. Simeon's $72,000 loss of consortium judgment against Lumar (except for remand in respect to prejudgment interest as per (13) below); (11) hold that Lumar is not entitled to contribution from Smith in respect to any loss of consortium by Mrs. Simeon or any prejudgment interest due by Lumar to either of the Simeons; (12) sustain the district court’s denial of prejudgment interest in Simeon’s suit against Smith; and (13) hold that Simeon and Mrs. Simeon are entitled to appropriate prejudgment interest from Lumar on, but only on, so much of their damages recoverable from Lumar as were incurred and had accrued prior to trial, but not on the portion thereof which would accrue or be incurred after trial, and remand to the district court to divide such damages accordingly and determine the appropriate prejudgment interest, all as stated in part VII, supra, of our opinion. Accordingly, the judgment below is AFFIRMED in part and REVERSED in part, and the cause is REMANDED for further proceedings consistent herewith. Footnotes [1] The limitations period applicable to Jones Act claims is three years. 45 U.S.C. § 56 (Federal Employers’ Liability Act limitations period applicable to Jones Act); Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir.1984). No set limitations period governs maritime claims. Instead, the doctrine of laches is applied with a presumption that the claim is barred if filed past the Jones Act limitations period. Albertson, 749 F.2d at 233; Watz v. Zapata Off-Shore Co., 431 F.2d 100, 111 (5th Cir.1970). [2] Before trial, the parties stipulated both to Si-meon’s seaman status and that his lost past (1126,403.50) and future ($43,500) wages totaled $169,903.50. The parties also stipulated that Smith's insurer had paid, at date of trial, (1) $73,416 of this sum (leaving a balance of $96,-487.50, consisting of $52,978 past and $43,500 future wages); (2) all of Simeon’s medical expenses (cure) incurred to date of trial ($51,-457.47); and (3) $12,880 in maintenance. Therefore, the only damages as to which findings were sought at trial were for (1) Simeon’s past and future pain, suffering, loss of enjoyment of life, disablement, and disfigurement; (2) his future medical expenses; and (3) Mrs. Simeon’s claim for loss of consortium. [3] Although there was not complete diversity between the parties, it is settled that an unseaworthiness claim when combined with a Jones Act claim is likewise triable to the jury even in the absence of diversity. Cruz v. Hendy International Co., 638 F.2d 719, 723 (5th Cir.1981); Smith v. Atlas Off-Shore Boat Service, Inc., 653 F.2d 1057, 1064 (5th Cir.1981). In his complaint, Simeon requested "trial by jury of all matters cognizable before a jury.” [4] Smith was covered by a §500,000 liability insurance policy issued by Midland Insurance Company. Midland had already paid Simeon, on behalf of Smith, $137,753.47 in lost wages, maintenance, and medical expenses (cure). This left $362,246.53 in unpaid coverage. As to Smith's liability, the district court ordered Smith and Midland liable in solido for the amount of remaining coverage and then held Smith separately liable for the $146,116.22 remainder of the total $508,362.75 award against it. The district court also gave Smith judgment over against Lumar for thirty-two percent of the referenced $137,753.47 pretrial payments made on behalf of Smith to Simeon; no party makes any complaint of this on appeal. [5] Shortly before trial, Lumar’s insurer, Glacier General Insurance Company, was ordered liquidated by a Montana state court. Thus, Lumar apparently has no insurance coverage for its liability. [6] The district court made a slight miscalculation. Thirty-two percent of $576,489.50 is $184,-476, not $184,576 as the district court stated. We will treat the judgment as being for $184,-476. [7] It is useful to examine verdicts rendered in other cases involving similar injuries. See Zeno, 803 F.2d at 181-82; Caldarera, 705 F.2d at 785. But see Allen v. Seacoast Products, Inc., 623 F.2d 355, 364 (5th Cir.1980) (citing Fifth Circuit precedent for proposition that comparison of verdicts in other cases is not a satisfactory manner for determining excessiveness in particular case); see generally Wakefield v. United States, 765 F.2d 55, 59 (5th Cir.1985) (collecting conflicting cases and concluding that “[cjommon sense dictates ... that reference to other awards is more or less useful”). Following is a sampling of the cases we examined involving somewhat comparable injuries: a. Noel v. Geosource, Inc., 585 F.Supp. 487 (E.D.La.1984) (damages fixed by court). Injury: foot crushed when trapped between dock and moored barge; severe fractures, complications from burn fragmentation, traumatic arthritis. Award: $130,000 for past and future pain and suffering, mental suffering, and physical disabilityb. Fisher v. Danos, 595 F.Supp. 461 (E.D.La.1984) (damages fixed by court), aff’d by unpublished opinion, 774 F.2d 1158 (5th Cir.1985). Injury: passenger in skiff suffered open fracture of right leg between knee and ankle, fracture of left leg and hip, fracture of collarbone; portion of left femur was removed to equal height of legs. Award: $200,000 for general damages including pain and suffering. c. Musial v. A & A Boats, Inc., 696 F.2d 1149 (5th Cir.1983) (damages fixed by court). Injury: oil platform cook suffered crushed heel necessitating fourteen operations culminating in the amputation of his leg. Award: $460,616.33 in total, presumably including some amount for pain and suffering. d. Harper v. Zapata Off-Shore Co., 563 F.Supp. 576 (E.D.La.1983) (damages fixed by jury), rev’d, 741 F.2d 87 (5th Cir.1984). Injury: seaman suffered severe back injury requiring two laminectomy operations. Award: $1,000,-000 compensatory damages, which included about $485,000 for pain and suffering. See 741 F.2d at 93. On appeal, we remitted this amount by $200,000. Id. e. Robert v. Conti Carriers & Terminals, Inc., 692 F.2d 22 (5th Cir.1982) (damages fixed by jury). Injury: while loosening shore line, deckhand suffered partially disabling injuries to hands necessitating twenty-three days' hospitalization and six operations. Award: about $115,-000 in pain and suffering. f. James v. River Parishes Co., 686 F.2d 1129 (5th Cir.1982) (damages fixed by court). Injury: deckhand suffered painful initial injuries in vessel collision and required physical therapy ("including painful nerve root conduction studies,” id. at 1133), surgery, and had to wear a leg and foot brace for remainder of his life. Award: $200,000 for pain and suffering. g. Shows v. Jamison Bedding, Inc., 671 F.2d 927 (5th Cir.1982) (damages fixed by jury). Injury: auto accident victim suffered broken arm, fractured and dislocated wrist, broken rib, concussion, deep scalp wound, required bone graft, permanently disabled, would suffer pain. Award: $600,000, about $500,000 of which was for pain and suffering. h. Brown v. Penrod Drilling Co., 534 F.Supp. 696 (W.D.La.1982) (damages fixed by court). Injury: seaman struck by joint of casing suffered facial hemorrhages, two skull fractures, shoulder separation, paralysis on left side of face, loss of hearing in one ear; hospitalized sixteen days, four surgeries required. Award: $75,000 pain and suffering. [8] The entire testimony on this point is as follows: "Q. Doctor, if you were to have to perform additional surgery to fuse that ankle for Mr. Simeon, what, approximately, would that cost in surgical fees and hospitalization? "A. Probably the fees will be around 1500, the surgeon’s fees with assistance and he will have to stay in the hospital about two weeks. "Q. What are hospitals costing nowadays, for that kind of operation? "A. You probably will have to count about ®400.00 a day, meaning plastic, plus surgical fees, plus anesthesia fees, et cetera. You are talking about probably $10,000.00. Again, probably, that’s just off the top of my head. I am not expert on that. I don’t know, the cost of hospitals continues to rise, so I don’t know.” The physician also testified that he had previously advised Simeon to return for a follow-up visit at a time after trial. Simeon testified that his doctor had instructed him to return for office visits once every two months. The frequency of Simeon’s visits had declined markedly since his injury, and there was no evidence of the cost of these visits. [9] Liability in collision cases arises from a finding of fault. See, e.g., The Atlas, 93 U.S. at 310, 23 L.Ed. at 865; The Washington, 76 U.S. at 514, 19 L.Ed. at 788; The Alabama, 92 U.S. at 695, 23 L.Ed. at 763. [10] Though many early admiralty cases involve cargo and vessel damages arising from collisions, see cases described in text, or injuries to seamen arising from vessel unseaworthiness, see generally Dixon v. United States, 219 F.2d 10, 12-16 (2d Cir.1955) (per Harlan, J.) (discussing historical evolution of unseaworthiness recovery), as early as 1882 the Supreme Court had recognized a maritime tort for personal injury unrelated to collision or unseaworthiness. Leathers v. Blessing, 105 U.S. 626, 26 L.Ed. 1192 (1882) (business visitor on vessel recovers for personal injury caused by negligently stowed cotton bale). In modern times, the general maritime claim for negligence is ubiquitous. [11] In holding the defendants in this case severally and not jointly liable, the district court relied on Leger v. Drilling Well Control, Inc., 592 F.2d 1246 (5th Cir.1979), and Bass v. Phoenix Seadrill/78, Ltd., 749 F.2d 1154 (5th Cir.1985). Neither of those maritime cases purports to eliminate the well established maritime rule of joint liability. Leger stands for the proposition that when a named defendant concurrent tort-feasor settles, the nonsettling concurrent tort-feasor found liable at trial is not responsible for any sum representing the settling tort-feasor’s share of blame (but is also not entitled to a credit representing amounts paid by the settling defendant in excess of that defendant’s share of fault). In Bass, a joint tort-feasor defendant settled prior to trial for $50,000 less than it would have had to pay after trial based on its percentage share of liability. Judgment against the remaining joint tort-feasors was for only their respective shares of liability, and not for any amount representing the settling tort-fea-sor’s percentage share of liability. Id. at 1157. The question of joint liability was not raised in Bass, but the case is consistent with Leger. The rule of Leger and Bass is not really an exception to joint liability because the liability share of the settling defendant tort-feasor has been actually paid and discharged prior to trial; the court simply does not concern itself with the amount of the payment, but only with the discharge of the liability share. When plaintiff settles with a defendant, he risks getting less than he would at trial — the remaining defendants should not have to cover that risk. Similarly, the remaining defendants should not benefit from plaintiff’s risktaking if plaintiff gets more in settlement than he would have at trial from the settling defendant. The Leger/Bass rule (the appropriateness of which we do not question) does not apply in this case because no tort-feasor settled. [12] Otherwise stated, Simeon (if he accepts our remittiturs) has a total judgment of $635,838.75 (ninety percent of $706,487.50, his total damages against Smith as remitted) for all of which Smith is liable to Simeon, but for only $500,-838.75 (ninety percent of $556,487.50, Simeon’s total damages against Lumar as remitted) of which is Lumar liable to Simeon. The amounts stated in the text (and in the foregoing sentence) do not include prejudgment interest. As explained in part VII, infra: Si-meon is not entitled to recover prejudgment interest from Smith, but is entitled to recover from Lumar appropriate prejudgment interest on so much of the $500,838.75 for which Lumar is jointly and severally liable as represents damages accrued pretrial, and Lumar is not entitled to contribution from Smith in respect to such prejudgment interest. Otherwise, contribution between Lumar and Smith is based on their respective percentages of negligence (thirty-two percent for Lumar; fifty-eight percent for Smith) applied to the damages for which they are jointly and severally liable. Hence, with respect to the said principal amounts for which Simeon will have judgment (assuming acceptance of our remittiturs), Lu-mar will be entitled to contribution from Smith for any portion thereof Lumar hereafter pays Simeon in excess of $178,076 ($178,076 is 32/90ths of $500,838.75, the amount for which Lumar and Smith are jointly and severally liable); and Smith will be entitled to contribution from Lumar for any portion thereof Smith hereafter pays Simeon in excess of $457,762.75 (this $457,762.75 consists of the $135,000 for which Smith is solely liable, plus $322,762.75 which represents 58/90ths of the $500,838.75 for which Smith and Lumar are jointly and severally liable). We disregard the pretrial payments made to Simeon by Smith (see notes 2 & 4, supra) because they are not in issue on this appeal. Neither Lumar nor Smith questions the contribution award in favor of Smith and against Lumar for thirty-two percent of these payments (see note 4, supra ); nor has any party questioned the fact that for purposes of calculating and applying the credit due for these pretrial payments (which include $52,978 of the $126,403.50 wages lost by Simeon after the accident and prior to trial) no account was taken of Simeon's ten percent negligence. We accordingly affirm these rulings of the district court, and its contribution judgment for Smith against Lumar, respecting the pretrial payments. [13] Mrs. Simeon launches this argument because she cannot recover loss of consortium damages against Smith (her husband’s Jones Act employer) under either the Jones Act or the general maritime law on the basis of Smith's negligence. Beltia v. Sidney Torres Marine Transport, Inc., 701 F.2d 491, 492-93 (5th Cir.1983); Cruz v. Hendy International Co., 638 F.2d 719, 723 (5th Cir.1981) (citing Fifth Circuit precedent). However, she can recover those damages from Smith on the basis of unseaworthiness under general maritime law. See American Export Lines, Inc. v. Alvez, 446 U.S. 274, 100 S.Ct. 1673, 64 L.Ed.2d 284 (1980). Mrs. Simeon would rather be able to collect her damages from Smith, which is insured and apparently solvent, than from Lu-mar, which is not insured and allegedly of questionable solvency. Mrs. Simeon also claims that she should be entitled to recover from Smith under the general maritime law for its negligence, although she recognizes that her claim is contrary to controlling precedent in this Circuit. Based on Beltia and Cruz, we reject her claim for such negligence-based recovery, either under general maritime law or the Jones Act, from her husband’s Jones Act employer. [14] That Mrs. Simeon is properly chargeable with her husband’s negligence is not questioned by her and is in accord with the weight of authority. See, e.g., W. Prosser & P. Keeton, Prosser & Keeton on The Law of Torts § 125 at 937 (1984) ("[T]he courts generally have considered that the recovery of the spouse ... will be defeated or diminished by defenses which would bar or diminish that of the injured spouse_Thus contributory negligence ... on the part of the injured person has been held to defeat recovery, or, in comparative negligence states, to reduce it." (Footnotes omitted.)); F. Harper, F. James, O. Gray, 3 The Law of Torts § 8.9 at 555 n. 17 (2d ed. 1986) ("[WJhere the doctrine of comparative negligence obtains, most courts have similarly reduced the award for loss of consortium by the percentage of negligence attributed to the physically injured spouse.’’); A.L.I., Restatement (Second) of Torts § 494 & comment c; Annot., Negligence of Spouse or Child as Barring or Reducing Recovery for Loss of Consortium by Other Spouse or Parent, 25 A.L.R. 4th at 118 (1983); Choctaw, Inc. v. Wichner, 521 So.2d 878 (Miss.1988). To say that the loss of consortium action by the spouse not physically injured is independent is not the same as saying that it is not derivative of the injured spouse's right of action. See Whittlesey v. Miller, 572 S.W.2d 665, 667 (Tex.1978). [15] This traditional view is not accepted by all jurisdictions. Some courts have permitted contribution in favor of a "concurrent” tort-feasor even where the tort-feasor from whom contribution is sought could not have been directly liable to plaintiff. F. Harper, F. James, O. Gray, supra, § 10.2 at 47-50; see abo Annot., Modern Status of Effect of State Workmen’s Compensation Act on Right of Third-Person Tortfeasor to Contribution or Indemnity from Employer of Injured or Killed Workman, 100 A.L.R.3d 350 (1980) (collecting workers’ compensation cases permitting and denying contribution); Annot., Right of Tortfeasor to Contribution from Joint Tortfeasor Who is Spouse or Otherwbe in Close Familial Relationship to Injured Party, 25 A.L.R. 4th 1120 (1983) (collecting family immunity cases permitting and denying contribution). [16] Particularly in view of the substantial delay in filing suit, and the fact that the case was not tried for more than a year thereafter, the district court on remand should also consider the date or dates from which prejudgment interest should commence to accrue on the various items of damages which had been incurred and accrued by the time of trial. It seems plain that some of these items were not accrued or incurred until a substantial time after the injury (for example only, some of the unpaid pretrial wages). [17] On remand, the district court shall fix the time and manner within and by which Simeon may accept the remittiturs we have ordered; on failure to so accept them, a new trial shall be ordered.