Published: December 28, 2015
By: Frederick B. Goldsmith
In Collins v. A.B.C. Marine Towing, L.L.C. and Board of Commissioners of the Port of New Orleans, 2015 WL 9257862 (E.D. La. Dec. 18, 2015), a Louisiana federal court reconsidered its prior decision and denied the Board of Commissioners of the Port of New Orleans’ motion to dismiss punitive damages claims against it. The case grew out of the accident which occurred when a tug, operated by ABC Marine, towing a deck barge owned by Boh Bros. Construction Co., was transiting the Inner Harbor Navigation Canal in Orleans Parish, Louisiana. Aboard the barge was a large crane. Around midnight on August 13, 2014, the mast of the crane struck the Florida Avenue lift bridge, which had not been raised to its highest position. The crane boom then fell atop the tug’s pilothouse, killing tug captain, Michael Collins, and seriously damaging the crane barge.While the Bridge’s Operator Manual required the bridge to be opened to its fullest extent for each opening, the Court found “several bridge tenders testified that they did not review any operating or policy manuals as part of their bridge tender training.”
The lift bridge also suffered from mechanical problems before the accident, leading bridge tenders to deviate from the Operator’s Manual and not fully open the bridge for each opening. Instead, the bridge tenders were trained to only raise the bridge several feet above the height requested by each passing vessel. On the night of the accident, the bridge tender claimed she raised the bridge four feet higher than that requested by Captain Collins. But this was not high enough.
Why did the Court change its position? Boh Bros., owner of the crane barge, showed the Court video which revealed the Board’s bridge tenders, even after this fatal accident, continued to fail to raise the bridge to its fullest extent. The Court also referenced a federal law, specifically a Coast Guard bridge operation regulation found at 33 C.F.R. § 117.5, which also required the Board to “fully open” the bridge every time (“[e]xcept as otherwise authorized or required by this part, drawbridges must open promptly and fully for the passage of vessels when a request or signal to open is given in accordance with this subpart.”).
The Court concluded:
“Therefore, notwithstanding the fatal tragedy that is the basis of this case, the video footage demonstrates that the Board continues to disregard the mandate of 33 C.F.R. § 117.5. The Court appreciates the Board’s argument that this video footage is inapposite because it was taken on a day when the Bridge was undergoing electrical repairs. However, the Court notes that any conclusions it might draw from this video footage would be based on material facts in dispute. In other words, whether or not this evidence confirms that the Board had in the past and continues to act with reckless conduct and callous disregard for life and property sufficient to justify an award of punitive damages is not an issue that can be determined summarily at this time in view of their arguably continuing practice. Rather, this new evidence, particularly taken together with the genuine issues of material fact discussed in the October 14 Order & Reasons, introduces a new fact issue that must be decided at trial.”
The Court had previously decided that punitive damages were available under the general maritime law in this case, and denied a defense motion to dismiss them as a matter of law.
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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers and their families. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com. While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider taking cases anywhere on the U.S. inland waterways.
Published: July 31, 2015
By: Frederick B. Goldsmith
In Diamond Offshore Servs. Ltd. v. Williams, 2015 WL 4480577 (Tex. App. — Houston [1st. Dist.] July 21, 2015), Willie David Williams sued Diamond Offshore for negligence under the Jones Act and unseaworthiness under the general maritime law after he seriously injured his back repairing equipment aboard an offshore oil rig owned and operated by Diamond Offshore. The trial judge entered judgment on the jury’s verdict, after credits and offsets had been applied, delivering to Williams approximately $8.5 million in compensatory damages and $235,381 in pre- and post-judgment interest. Diamond Offshore appealed the trial court’s judgment, claiming the trial judge made numerous legal errors, including preventing Diamond Offshore from showing the jury surveillance video its investigator had taken of Williams working outside.
The surveillance video was eighty-minutes long and showed Williams performing various outdoor tasks, such as using an excavator to haul debris and working on a vehicle, over the course of three days, years after the accident and after Williams’ back surgeries. The trial judge ruled the video could not be used as substantive evidence, but only for impeachment purposes, in other words, to try to show Williams was lying if he denied doing any of the things the video showed him doing. Williams’ lawyers argued the video should be excluded from the trial under evidence rule 403 because the prejudicial effect of what they termed the “heavily edited” video substantially outweighed any probative value.
The appeals court found significant the fact the “video only reflects Williams’s outside activities and does not reflect what he did when he was not outside or whether he was in pain as a result of his activities.” Also, in his trial testimony, Williams admitted he could perform the activities depicted in the surveillance video, although he added he could only engage in these activities “for short periods of time before he felt pain and that he would be in pain later after engaging in these activities.”
In affirming the trial judge’s decision to not allow the jury to see the surveillance video, the appeals court discussed how a “trial court’s evidentiary rulings are committed to the court’s ‘sound discretion,’ and we must uphold the court’s ruling if there is any basis for doing so.” While in the trial transcript, the trial judge did not articulate a reason for its rulings, instead merely saying during a pre-trial hearing that Diamond Offshore could “keep [the surveillance video] in your reserve bank for impeachment” and that, if Williams “opens the door, then we’ll take a look at it.” Similarly, when Diamond Offshore offered the surveillance video after one of Williams’ medical experts testified, the court stated, “Ruling stands the same,” and when Diamond Offshore offered the video after cross-examination of Williams, the trial court stated, “No, not admitting,” without providing a reason.
The appellate court found that “[n]o Texas case squarely addresses the issue present here—the admissibility of post-accident surveillance videotapes as either substantive or impeachment evidence—and cases from other jurisdictions have emphasized the trial court’s discretion in ruling on the admissibility of such evidence, upholding trial courts’ rulings admitting post-accident surveillance videos and upholding rulings excluding this evidence. In the absence of authority binding on this Court, we cannot conclude that the trial court abused its discretion in excluding the post-accident surveillance video offered by Diamond Offshore. The trial court could have reasonably determined that the proffered video, which contained clips from three different days of surveillance edited together into one continuous hour-long video and depicted Williams performing activities that he admitted that he could do, albeit with pain later, created an impression that Williams could engage in physical activity for long periods of time without needing rest and without apparent pain and thus that the prejudicial effect of the video outweighed the video’s probative value. … We therefore hold that the trial court did not abuse its discretion in excluding the surveillance video proffered by Diamond Offshore.”
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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings lawsuits for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, and we regularly face situations where the defendant, usually our client’s employer, has hired an investigator to secretly shoot surveillance video of our client. This decision highlights how those videos can often be unfair in what they don’t show about how an accident has injured our client. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or email@example.com. Our website is www.golawllc.com. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.
Published: April 10, 2015
By: Frederick B. Goldsmith
In In re Complaint of McAllister Towing & Transp. Co., Inc., 2015 WL 1515369 (S.D.N.Y. Mar. 31, 2015), the tug owner, McAllister, filed suit under the Vessel Owners’ Limitation of Liability Act and later sought to dismiss on motion for summary judgment the claims brought by the survivors of the captain of its tug, the A.J. McALLISTER. The tug’s captain, Edward Cornelius, was last seen alive aboard the tug at 0922. Just seven minutes later, dock surveillance video showed him floating lifeless in the water.
McAllister, the tug owner, argued Captain Cornelius likely had a heart attack and tumbled into the water afterwards, and thus that his death could not be its fault. Cornelius’ survivors, however, argued the captain may have slipped while climbing from the tug to the pier, an accident they argued could have been avoided had the tug owner provided a proper gangway.
More facts: On the morning of the accident, Captain Cornelius told another crewmember he was going to have coffee, read a paper, then go ashore to his truck to get some paint. The evidence supported that the captain, in fact, did have coffee and read the paper on the tug. Then he was captured on video surveillance footage at 0922 facing in the direction of the port side of the tug, which side was tied to the pier, appearing as though he were going to debark. At 0923, he was not in view of the pier surveillance camera on the boat or at the pier. The captain was not seen again until 0929, when pier surveillance video showed his lifeless body floating in the water, two feet from the tug.
The Court found that, like the majority of McAllister’s tugs, the A.J. McALLISTER did not have a gangway, or any means of exiting the boat that was enclosed on both sides, to get to the pier. So, to exit the boat, the Court noted, a crewmember would have to walk up a three-step stool on the tug, then step onto the cap rail — a raised metal surface on the boat that was sloped downward from bow to stern and had a “little bubble” on part of its surface, then possibly step onto the pier fendering system, to which the tug was not tied tightly, then step onto the concrete of the pier.
The Court described how the fendering system at the New Bedford, Massachusetts, pier where the tug was moored had boards that suffered from heavy wear and tear and draped over them were the lines used to moor the tug. There was also a strong wind between 25 and 30 miles per hour the morning of the captain’s death. Also, there were no handrails for support during this exiting process. Captain Cornelius was not intoxicated or under the influence of drugs at the time of the accident, and he was known to be a safe and outstanding captain.
The Court concluded this factual record presented sufficient issues to require the case to be tried and denied the tug owner’s motion for summary judgment as to both the survivors’ Jones Act negligence and general maritime law unseaworthiness claims.
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Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, and passengers aboard cruise and excursion boats and ships, in personal injury and wrongful death claims. If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the Vessel Owners’ Limitation of Liability Act, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340. Our website is http://www.golawllc.com. Our e-mail address is firstname.lastname@example.org. We practice primarily in PA, WV, and OH, but also all over the inland waterways.
Published: August 30, 2014
By: Frederick B. Goldsmith
Union Pacific R. Co. v. Estate of Gutierrez, 2014 WL 4109586 (Tex.App. — Houston [1st Dist.] August 21, 2014), is a Federal Employers Liability Act (or “FELA”) case. But, the Jones Act, applicable to a seaman’s negligence action against his employer for personal injury or death, expressly incorporates the FELA by reference, so court decisions under the FELA are highly persuasive in Jones Act cases, and vice versa.
In this case, although the Court found Congress had amended the FELA in 1939 to abolish the assumption of the risk defense in actions brought under this statute, the Court agreed with plaintiff’s counsel that the railroad’s lawyer had repeatedly placed before the jury argument and evidence implying the deceased rail worker had a choice in many aspects of his job, and essentially that the worker could have through his choices avoided his own accident. Under these circumstances, the appeals court agreed with the trial judge that it was necessary to instruct the jury before it retired to reach its verdict that the assumption of the risk defense was not available to the railroad defendant, in order to ensure the jury had a proper understanding of applicable law.
The appeals court summarized the deceased worker’s estate’s position on appeal as follows:
“Appellees, however, argue that appellant injected the issue of assumption of the risk by repeatedly telling the jury that Gutierrez had chosen to work the job on which he was injured, in the location where he was injured, and under the conditions existing at the time, despite there being no requirement for him to do so because his seniority allowed him to choose a different job. In support of their position, appellees point to several exchanges in voir dire during which appellant’s counsel asked venire members how they responded to unsafe working conditions in their job, suggesting that stopping work in such conditions was ‘good sense’ and assuming ‘personal responsibility.’ In opening statements, appellant’s counsel referred several times to Gutierrez’s seniority, that it allowed him to bid on any job he wanted, and that he picked the RIP track because that was his preferred location. Appellees also point to co-workers’ testimony elicited by [the railroad] that Gutierrez chose to work the job on which he was injured, despite seniority that allowed him to choose any position. Appellees argue that given these examples, and the fact that appellant claimed that Gutierrez had been contributorily negligent in causing his injury, an instruction that assumption of the risk is not a defense was warranted.”
The appeals court, in agreeing that the curative instruction to the jury on the non-applicability of the assumption of the risk defense was warranted, wrote:
“[A] trial court may instruct a jury that assumption of the risk is not a defense if there are ‘facts strongly suggesting assumption of the risk…..Here, appellant’s counsel reminded the jury numerous times—in voir dire, in opening statements, and through witness testimony—of the fact that Gutierrez’s seniority allowed him to choose any job he wanted but that he had chosen the job and location where he worked….Further, we note that a defendant’s intentions in presenting such evidence is not the proper focus; rather, it is the potential impact on the jury that governs whether an instruction is given….”
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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, passengers aboard cruise and excursion boats and ships, and railroad workers covered by the FELA. If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the FELA, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340. Our website is http://www.golawllc.com. Our e-mail address is email@example.com. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.
Published: December 23, 2013
By: Frederick B. Goldsmith
While deckhanding for Double J. Marine, LLC aboard its towboat, the M/V MISS KAYLYNN, Matthew Nuber seriously injured his back while pulling on a face wire. On the day of the accident, Nuber only had the benefit of an emergency room physician’s opinion, without any diagnostic testing, such as an x-ray or an MRI, that he had only pulled a muscle. One week later, Nuber returned to the ER where another physician released him to work full duty, still without any diagnostic testing, and without the opinion of a specialist, such as an orthopedic or neurosurgeon.
Later the same day, deckhand Nuber met with the vessel owner’s claims adjuster at a gas station and signed a “Receipt, Release, and Hold Harmless Agreement.” The adjuster read and explained the release to Nuber and Nuber signed the release, purportedly knowingly giving up all his claims against Double J for the shipboard accident. In exchange for signing the release, Double J paid Nuber only $860. Nuber returned to work for Double J the next day.
About one month later, Nuber’s back pain returned. Double J placed him on light duty, until Nuber could no longer continue to work. Then, Double J finally sent Nuber to see a back specialist, an orthopedic surgeon, who promptly ordered an MRI. The doctor diagnosed Nuber with herniated discs, recommended surgery, and opined the shipboard accident had caused the back injury. Nuber then demanded Double J pay him maintenance and cure under the general maritime law. Double J responded by filing this lawsuit, seeking a declaratory judgment that the release Nuber signed insulated it from Nuber’s claims. Nuber then filed a Jones Act negligence, general maritime law unseaworthiness and maintenance and cure lawsuit against Double J in state court.
In Double J. Marine, LLC v. Nuber, 2013 U.S. Dist. LEXIS 173408 (E.D. La. Dec. 11, 2013), U.S. District Judge Martin L.C. Feldman of the Eastern District of Louisiana denied Double J’s motion for summary judgment, finding there were fact issues as to whether the release was enforceable. Consistent with longstanding admiralty law, Judge Feldman discussed how the courts are charged with being protective of the rights of seamen:
“Seamen are wards of admiralty law, whose rights federal courts are duty-bound to jealously protect. … In protecting their rights, the Court must be ‘particularly vigilant to guard against overreaching when a seaman purports to release his right to compensation for personal injuries.’ … At the same time, however, the Court must balance the utility of maintaining confidence in the finality of such settlements. … In carefully scrutinizing releases or settlement agreements involving seamen, the Court must ultimately determine whether the seaman had ‘an informed understanding of his rights and a full appreciation of the consequences’ of executing the release at the time he executed it.”
Judge Feldman further wrote how the seaman’s employer bears the burden of proving the validity of a release, how the amount of money he or she is paid for the release is significant, as is the nature and extent of any medical and legal advice the seaman had available to him or her when signing the release:
“The party claiming that the matter has been settled bears the burden of demonstrating that a seaman’s release of claims was ‘executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights.’ … Adequacy of consideration is one factor for the Court to consider in determining whether the seaman had an informed understanding of his rights. … However, the Court ‘lacks authority, especially where the seaman testifies to complete satisfaction, to void the agreement simply because the court thinks the seaman could have negotiated a better deal.’ … Another factor the Court considers in determining whether the seaman had an informed understanding of his rights is the nature of medical and legal advice available to him. … In this regard, a seaman ‘may have to take his chances’ that a properly diagnosed condition is ‘more serious and extensive than originally thought.’ … Other factors the Court considers include whether the parties negotiated at arm’s length and in good faith, and whether there is the appearance of fraud, deception, coercion, or overreaching.”
Here, Judge Feldman had to review competing versions of the gas station release signing: a transcript of the “ceremony” versus an affidavit from Nuber. He concluded the release could not be summarily enforced against Nuber. The Court’s analysis:
“Double J. contends that the record establishes that, at the time of releasing his rights, Nuber had an informed understanding of his rights and a full appreciation of the consequences. The Court disagrees. The record includes, on the one hand, a transcript of the meeting between Nuber and the adjuster in which Nuber indicated that he understood his rights and agreed to release them, and on the other, an affidavit executed by Nuber in which he swears he did not fully understand the ramifications of the release. That alone creates a genuine issue regarding whether Nuber executed the release freely and with a full understanding of his rights.”
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“The record also reveals that Nuber has only completed the 10th grade in special education classes, that he only received $530 in [new] consideration for settlement, and that he was not represented by counsel when he executed the release. ‘Although a court may uphold a release even when the seaman is not represented by his own attorney, [the Fifth Circuit] has repeatedly emphasized the importance of counsel in determining whether a seaman fully understood his rights and the consequences of releasing those rights.’ … Neither did Nuber receive an independent medical opinion regarding his injuries before executing the release.”
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“Double J. contends that the record clearly establishes that Nuber received adequate medical advice. The Court again disagrees. The record reveals that, before he signed the release, Nuber was treated twice at River Parishes Hospital where he was diagnosed with a pulled muscle and told to return to work. The emergency room physicians did not conduct any diagnostic testing, and did not refer Nuber to a specialist. When Nuber later sought more treatment, Dr. Nutik ordered an MRI, diagnosed Nuber with herniated discs, and recommended surgery. The record at least reveals a genuine issue regarding the adequacy of the medical advice Nuber initially received, if not a mutual mistake regarding the nature of Nuber’s injury.”
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“Finally, although Double J. maintains that the parties negotiated at an arm’s length and in good faith, the record shows that Nuber signed the release at a gas station on the very same day he received treatment. Double J. has failed to meet its burden of establishing that Nuber signed the release freely, without deception or coercion, and with a full understanding of his rights.”
Our law firm, Goldsmith & Ogrodowski, LLC, represents the families of captains, pilots, mates, deckhands, engineers, and cooks who work aboard towboats, barges, and other commercial vessels, and who are seriously injured or killed on the job. If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact us at 877-404-6529 or 412-281-4340. Our website is www.golawllc.com. Our e-mail address is firstname.lastname@example.org.