September 29, 2009
Welcome to the September 29, 2009, issue of Admiralty Update, the copyrighted and trademarked e-newsletter on developments in U.S. Coast Guard regulations and state and federal court decisions of interest to the commercial and recreational mariners.
It is written, edited, and produced by Frederick B. Goldsmith
and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.
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This issue's photo was taken from a yacht
offshore Greece.
G&O Personnel News
On July 14, 2009, Fred Goldsmith co-moderated a continuing legal education seminar entitled, "PLAIN TALK ON DEPOSITIONS: Four Judges Speak to State and Federal Court Deposition Practice and Strategy in Discovery and Trial in Western Pennsylvania." Sponsors of the program
were the Allegheny County Bar Association’s Federal Court Section, the Judges of the U.S. District Court for the Western District of Pennsylvania, and the Pennsylvania Bar Association’s Federal Practice Committee.
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Recent U.S. Coast Guard Notices in the Federal Register
Lower Mississippi River Waterway Safety Advisory Committee to Meet 10/7/09
In the
September 17, 2009,
Federal Register, the Coast Guard advises that LMRWSAC will meet on the above date to discuss various issues concerning nav safety on the LMR and related waterways. The Committee will meet at the New Orleans Yacht Club. See link for notice and more details.
Recent State & Federal Court Maritime Decisions
U.S. Eighth Circuit Court of Appeals: General Maritime Law Does Not Allow Spouses of Non-Seafarers to Recover Loss of Consortium Damages When Non-Seafarer Injured Beyond
U.S. Territorial Waters
In Doyle v. Graske, 2009 WL 2766748 (8th Cir. Sep. 2, 2009), Daniel Doyle was injured in an accident offshore Grand Cayman Island.
He filed suit in Nebraska state court, and the defendant, Leland Graske, removed the suit to federal court invoking admiralty jurisdiction. The district court awarded compensatory damages to Doyle and loss of consortium damages to Doyle's spouse. The Eighth Circuit, addressing an issue of first impression in the Circuit, held that
the general maritime law does not allow recovery of loss of consortium damages by the spouses of non-seafarers negligently injured beyond the territorial waters of the United States. In reaching its holding, the Eighth Circuit sought guidance on how to approach this issue of first impression from the recent U.S. Supreme Court
decision in Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (June
25, 2009).
Louisiana Federal District Court: Loss of Society/Consortium Damages Not Recoverable Under General Maritime Law By Relatives and Estates of Passengers of Pleasure Vessel Who Died in Collision With Tug-Barge Unit in Alabama Territorial Waters
In In re Maryland Marine, Inc., 2009 WL 2047269 (E.D.La. July 9, 2009), the court agreed with the owner of the tug-barge that the general maritime law prohibits the recovery of loss of society damages for the wrongful death of a pleasure boat passenger, who is neither a seaman nor a longshoreman, in state territorial waters. The parties conceded Alabama's wrongful death statute did not apply. The court found the U.S. Supreme Court's recent decision in Atlantic Sounding
Co. v. Townsend, 129 S.Ct. 2561 (June 25, 2009), did not alter the result. The trial judge did, however, concede this area of the law is susceptible to change in the near term and thus agreed to present the loss of society award to the jury for a finding, but not to include it in the judgment, to avoid a retrial in the event the law does change.
Louisiana Federal District Court: Plaintiff Seaman Entitled, After
Atlantic Sounding, to Seek Punitive Damages Under General
Maritime Law for Defendant's Alleged Gross, Willful, and Wanton
Negligence
In Rogers v. Resolve Marine, 2009 WL 2984199 (E.D. La.
Sept. 11, 2009), the plaintiff seaman was allowed, in the wake of the
United States Supreme Court's decision in Atlantic Sounding Co. v.
Townsend, 129 S.Ct. 2561 (2009), and Judge Berrigan's decision in
Maryland Marine, discussed above, to file an amended complaint
seeking punitive damages under the general maritime law for the
defendant's alleged alleged gross, willful, and wanton negligence in
causing the plaintiff's injuries.
Ohio Federal District Court: Seaman's Maintenance & Cure Punitives
Case May Proceed Post Atlantic Sounding
In Maddux v. United States, 2009 WL 2982969 (S.D. Ohio
September 10, 2009), 37-year-old seaman, James Maddux, was working on a
vessel docked in Guam and when returning from shore leave claims he fell
from a stairway into a safety net which he claims was defective and
improperly rigged, allegedly causing him to fall fifteen feet to the
deck below. Maddux sustained a complete spinal cord injury at T10-12 and
was rendered a paraplegic. Maddux claimed Maersk Line, Limited Honeywell
Technology Solutions, Inc. are vicariously liable for his injuries
pursuant to the Jones Act, the Public Vessels Act, the Suits in
Admiralty Act and the general maritime law of the United States, or
alternatively Longshore and Harbor Workers' Compensation Act. He
claimed negligence and unseaworthiness against all the defendants and
requested damages, including punitive damages as to both his GML
unseaworthiness and maintenance and cure claims and his GML negligence
claim against the non-employer defendant. Citing Atlantic Sounding
Co. v. Townsend, 129 S.Ct. 2561 (2009), the court declined to
dismiss Maddux's punitive damages claims as to his maintenance and cure
claim and deferred ruling on the motion to dismiss the balance of his
punitive damages claims until the completion of discovery.
U.S. Seventh Circuit Court of Appeals: Pleasureboat Passenger Injured in Accident with Towboat Could Maintain Preexisting State
Court Suit if She Stays Suit During Pendency of Limitation Act Proceedings and District Court
Erred in Requiring Her to Dismiss State Suit
In American River Trans. Co. v. Ryan, 2009 WL 2616254 (7th Cir. Aug. 27, 2009), Kerrie Vesolowski was injured when the motor boat
on which she was a passenger collided with a barge pushed by a towboat owned and operated by Artco. Vesolowski sued ARTCO in the Circuit Court of Cook County, Illinois. Artco then filed a complaint in federal court under the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. Pursuant to an order of the district court, Vesolowski stayed her state suit after the filing of the Limitation Action. As a sanction for allegedly prosecuting the state suit against ARTCO during the stay, the district court ordered Vesolowski to dismiss the state suit, which Vesolowski did. In finding the district court abused its discretion in requiring Vesolowski to dismiss the state suit, the Seventh Circuit held that a suitor can maintain a preexisting state claim
provided they stay the suit during the pendency of the Limitation Act proceedings, and that Vesolowski's actions in filing
in the state court suit amended complaints, adding new defendants, rule numbers, and theories of negligence did not warrant dismissal of
her state court suit.
U.S. Ninth Circuit Court of Appeals: Sea-Doo Accident in Designated Personal Watercraft Portion of San Diego's Mission Bay Within Admiralty Jurisdiction and Thus Limitation of Liability Act Complaint By PWC Owner May Be Viable
In In re Complaint of Mission Bay Jet Sports, LLC, 2009 WL 1773187 (9th Cir. June 24, 2009), the California trial court dismissed for lack of admiralty jurisdiction tort claims brought by two women who were seriously injured when, as passengers, they were thrown off a Sea-Doo jet-propelled personal watercraft allegedly negligently operated by the PWC's operator, in an area of San Diego's Mission Bay reserved for such vessels. The operator, while making tight turns at 25 MPH, threw the women off once without injury, they asked him to stop this type of operation, they got back on the craft, but he persisted, the second time injuring the women with the PWC's propulsion jet. The appeals court reversed the trial court's ruling that the accident and its connection to traditional maritime activity did not bring it within the court's admiralty jurisdiction, but remanded the case to the trial court to determine facts bearing on applicability of the Vessel Owners' Limitation of Liability Act.
Louisiana Federal District Court: Shipowner Asserting Limitation of Liability Act Defense in Its Answer Does Not Need to Post Security
In State of Louisiana v. Kition Shipping Co., Ltd., 2009 WL 2849645 (M.D. La. Sep. 2, 2009),
a claimant filed a motion to require the shipowner to post security due to its assertion of the Limitation of Liability Act defense in its answer. The district court, noting that the Fifth Circuit has never addressed this issue, found the security requirement in 46 U.S.C. § 30511 of the Limitation of Liability Act inapplicable where limitation of liability has been asserted as a defense.
U.S. Third Circuit Court of Appeals: Commuter Seamen Entitled to
Maintenance and Cure
In Delaware River & Bay Authority v. Kopacz, 2009 WL 3064708
(3rd Cir. Sept. 25, 2009), the court held commuter seamen, who eat
and sleep on land, are just as entitled as blue water seamen to
maintenance and cure ("commuter
seamen enjoy the same right to maintenance as their blue water
counterparts"), and the shipowner was not relieved of its
maintenance and cure obligation due to the injured seaman's receipt of
Social Security disability benefits, and long-term disability payments
provided by the shipowner. The court noted the U.S. Supreme Court
has shown no inclination to depart from its long-established solicitude
for seamen and, "[u]ntil it does so, we decline to depart from the
'uniformly enforced' rule entitling deep water and commuter seamen to
maintenance."
New York Federal District Court: Collective Bargaining Agreement Limiting Maintenance Payments to Ninety Consecutive Days Is Valid
In Stanton v. Buchanan Marine, L.P., 2009 WL 2447823 (S.D.N.Y. Aug. 10, 2009), the plaintiff
asked the court to invalidate the provision of the collective bargaining agreement
limiting maintenance payments to 90 consecutive days regardless of whether an injured seaman has reached maximum medical improvement. The district court denied the motion,
finding the provision to be valid and the product of legitimate negotiation
which was agreed to by the union in exchange for other compensation and benefits.
Louisiana Federal District Court: Chief Engineer Solely Responsible for Causing His Own Fall and Injuries
In Taylor v. Bisso Towboat Co., 2009 WL 2707452 (E.D. La. Aug. 25, 2009), Edmund Taylor
claimed he slipped on soapy water on the deck of a Bisso towboat,
causing him to fall down a set of stairs, injuring his leg. After a non-jury trial, the district court concluded there was no evidence of soapy water and that the sole cause of Taylor's fall and injuries was his negligence in wearing sandals, in direct violation of Bisso's safety rules. After dismissing Taylor's negligence
and unseaworthiness claims, the district court awarded Taylor $180 for outstanding maintenance and cure.
U.S. Sixth Circuit Court of Appeals: Liability insurance Policy On
Yacht Dealer and Marina Outside of Admiralty Jurisdiction Due to its
Many Non-Maritime Coverages
In New Hampshire Ins. Co. v. Home Sav. and Loan Co. of Youngstown,
Ohio, 2009 WL 3029658 (6th Cir. September 24, 2009), disagreeing
with the insurer who argued its policy, as a "marine insurance policy,"
was sufficient to invoke federal admiralty jurisdiction for a
declaratory judgment action, the court held a Yacht Dealer/Marina
Operators general liability insurance policy was not a "maritime
contract" and thus insufficient to invoke federal admiralty
jurisdiction. The court wrote the test was whether the contract's
"primary objective" has an "essentially maritime nature" and relates to
"maritime commerce," and to conduct this analysis it had to examine the
insurance policy "as a whole." The court then catalogued the
non-maritime coverages within the policy (including its "Truth in
Lending Errors and Omissions Liability Coverage") and concluded:
"Simply because a contract involves a marina does not mean it
necessarily is a maritime contract. We must look at the nature of the
contract and, in the case of an insurance policy, consider the specific
interests insured. Applying that distinction in this case, we conclude
that this insurance policy covering a yacht dealership and a marina
falls outside the scope of our maritime jurisdiction, despite the fact
that some of the services provided by the marina may relate incidentally
to or facilitate maritime commerce. Like other courts that have
addressed similar issues, we also are reluctant 'to open the courthouse
doors to a surge of litigation concerning transactions that may only
tangentially involve a maritime business or a ship owner merely because
one is a party in the dispute.' Illinois Constructors Corp. v.
Morency & Assoc., 794 F.Supp. 841, 843 (N.D.Ill. 1992). This concern
is all the more pressing where, as here, the contract at issue is
multifaceted and covers a diverse range of interests, many of which have
little bearing on maritime commerce."
Lagniappe
Post-Accident Checklist:
-
If you or others are injured, call 911 for EMS and, if applicable,
local or state police, sheriff, etc. Following a commercial
vessel accident on U.S. navigable waters, meeting certain thresholds
(
http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/46cfr4.05-1.pdf),
the owner, agent, master, operator, or person in charge must
immediately (24/7) notify (call) the nearest USCG Sector Office,
Marine Inspection Office, or Coast Guard Group Office, followed
within five (5) days by a written report on USCG Form CG-2692 (http://www.uscg.mil/forms/cg/CG_2692.pdf).
U.S. commercial vessel operators must also comply with USCG
post-accident drug & alcohol testing and reporting regulations.
Oil and chemical spills must be immediately (24/7) reported to the
National Response Center (http://www.nrc.uscg.mil/nrchp.html)
(800-424-8802 or 202-267-2675) and any other applicable state and/or
local agencies.
-
If no EMS/hospital treatment is obtained, see your own doctor or
hospital Emergency Room
ASAP, as your medical condition indicates.
-
Get photos,
even with a cell phone or disposable camera, of the accident scene,
vessels, vehicles, equipment,
products, involved.
-
If possible,
preserve the accident scene and any vessels, equipment, or products, involved,
until it can be investigated.
-
Write down
the name, address, and phone number of all witnesses.
-
Immediately report
the accident (if aboard a vessel, to the captain or other in
charge), orally and in writing, describing the highlights of how
all persons, vehicles, equipment, and/or products played a part.
-
Try to avoid
discussing the accident or giving a written or recorded statement until
you have the opportunity to talk to your lawyer. If aboard a
commercial vessel and a Coast Guard investigation is underway, most
USCG personnel will allow you to have a lawyer present. You can call G&O 24/7 toll free at
1-877-404-6529 (1-877-40-GO-LAW).
Reader Feedback
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fbg@golawllc.com.
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