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  • WA State Supreme Court: Jones Act Seaman Can Recover Punitive Damages in Unseaworthiness Claim

    In Tabingo v. American Triumph LLC, No. 92913-1 (Wa. March 9, 2017) (en banc), the Washington (state) Supreme Court held, as a matter of law, the issue of the recoverability of punitive damages in a Jones Act seaman’s general maritime law unseaworthiness claim is governed by the U.S. Supreme Court’s analysis in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009).  The Washington Supreme Court, frontally disagreeing with the oft-cited U.S. Court of Appeals for the Fifth Circuit’s en banc decision in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014), which held the issue of the recoverability of punitive damages in a GML unseaworthiness claim is controlled by the U.S. Supreme Court’s earlier decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), wrote:

    “It followed Miles‘s reasoning, noting that because the Jones Act limits recovery of punitive damages for actions brought under it, the same result must occur when a Jones Act claim and general maritime claim are joined in the same action. McBride, 768 F.3d at 388-89. However, as discussed above, this rationale misinterprets both Miles and its interaction with TownsendMiles is limited to tort remedies grounded in statute. Unseaworthiness is not such a remedy. Congress has not directly addressed the damages available for an unseaworthiness claim. Because of this, following Townsend, punitive damages for unseaworthiness have not been curtailed. Absent an indication that a general maritime cause of action has been removed from the general maritime rule, common law remedies are still available. Therefore, we apply Townsend‘s rationale and find that punitive damages are available for unseaworthiness claims.”

    The facts of the underlying serious injury, as alleged by the plaintiff, Allan Tabingo, as summarized by the Court, are as follows:

    “In February 2015, Tabingo was tasked with moving the fish below decks. He was on his knees near the hatch’s hinge, gathering the last remaining fish, when another deckhand started closing the hatch. Realizing how close Tabingo’ s hands were to the hatch, the deckhand attempted to correct his mistake. However, the hatch’s control handle was broken and the deckhand could not stop the hatch. The hydraulic hatch closed on Tabingo’ s hand, resulting in the amputation of two fingers. Tabingo alleges that American Seafoods knew about the broken handle for two years before the incident but had failed to repair it.”

    ***

    Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat and barge crewmembers–and their families, when a crewmember has been seriously injured or killed.

    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 info@golawllc.com. We invite you to learn more about us on our website, www.golawllc.com.

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  • Towboat Company’s Pre-Trial Attack on Plaintiff Deckhand’s Liability Expert Fails

    In Paster v. Ingram Barge Company, 2015 WL 3680700 (E.D. La. June 12, 2015), deckhand Tommy Paster sued Ingram, his employer and the owner/operator of the towboat, the M/V O.A. FRANKS, alleging he seriously injured his back while standing on the edge of a barge and using a three to four-foot pole with a hook attached to it to grab equipment from the deck of the towboat located several feet below.  After hooking the equipment, Paster was able to pull it up to the barge, unassisted.  And while he was able to work the rest of the day, Paster claims the next day he awoke with pain radiating from his back down his leg — classic signs of a vertebral disc injury.  When he was lifting the equipment the day before, Paster claims he felt a “twinge” in his back.  Paster’s attorney made claims against Ingram in a federal court lawsuit under the Jones Act, for negligence, and under the general maritime law, for unseaworthiness.

    Paster’s lawyer hired a liability expert, Robert E. “Bob” Borison, to opine on the cause of Paster’s accident.  In his report, Borison attributed the accident to, among other things, Ingram’s failure to have conducted essentially a job hazard analysis of the lifting operation in question, and failure to have properly trained Paster on proper lifting techniques in these circumstances.  The Court (U.S. District Judge Sarah S. Vance) summarized Borison’s three principal opinions as follows:

    “Taken together, Borison’s expert testimony seeks to establish that (1) plaintiff’s work assignment required him to assume an unsafe lifting position, thereby causing his injury, (2) a reasonably competent safety professional would have assigned more manpower or mechanical power to assist plaintiff with the lift, and (3) defendant failed to adequately train plaintiff on proper lifting techniques under the circumstances.”

    Ingram filed a pre-trial motion to strike Borison as an expert, to keep the jury from hearing his testimony.  Ingram argued Borison’s opinions were based on insufficient facts, misleading, and would not be helpful to the jury.  Ingram did not attack Borison’s qualifications, just his opinions.

    In addressing Ingram’s motion, Judge Vance first ruled that “Borison’s proposed testimony is not within the scope of a layman’s common experience.  Contrary to the defendant’s assertions, Borison’s testimony is not simply that ‘someone should not lift something that is too big or too awkward for them to handle.’  Instead, Borison evaluates the specific posture plaintiff allegedly assumed, and opines that defendant failed to provide the necessary manpower or mechanical assistance to allow plaintiff to make the lift safely.  Borison is undoubtedly more familiar with the tools plaintiff was using, the equipment plaintiff was lifting, and the safety risks associated with working on barges than the average layperson.  Moreover, as an instructor ‘in the proper method of manual material handling,’ Borison is qualified to opine about the appropriate or customary level of training in the maritime industry.”  So, the Court found that, “Borison’s experience and specialized knowledge regarding maritime safety and industry custom will assist the trier of fact in determining whether [Ingram’s] conduct fell beneath the applicable standard of care in this case.”

    Judge Vance was also unpersuaded by Ingram’s argument that Borison’s opinions were misleading or factually deficient.  As to Ingram’s criticism of Borison’s report insofar as it, in Ingram’s counsel’s words, “creates negligent-sounding section titles that imply Ingram did something wrong, and then declines to identify how Ingram actually merited his condemnation or discusses something entirely different …,” the Court found Borison’s report’s section titles were not evidence and the defendant’s argument “exalts form over substance and erroneously focuses on Borison’s section headings and typeface rather than on the content of Borison’s report.”  Judge Vance noted that Borison had written in his report that Ingram had caused plaintiff to assume an unsafe lifting position, failed to allocate sufficient resources to allow plaintiff to make the lift safely, and failed to adequately train plaintiff.”

    Finally, in ruling that Borison would be permitted to testify before the jury as to each of the opinions appearing in his report, Judge Vance wrote:

    “Although the Court agrees that Borison’s report is not the model of clarity, defendant’s cavils about Borison’s headings do not render Borison’s underlying opinions inadmissible.  Moreover, Borison states that he bases his opinions on an interview with plaintiff, defendant’s records, and thirty years of experience in the industry.  To the extent defendant disputes the underlying facts or disagrees with Borison’s interpretation of those facts, defendant may cross-examine Borison at trial.”

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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, such as deckhands, mates, cooks, engineers, pilots, and captains, and we regularly hire liability experts to assist the jury’s understanding of how and why our clients’ accidents occurred.  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 info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

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  • Court Invokes Flotilla Doctrine, Orders Vessel Owner to Increase Security in Limitation Act Case to Include Value of 2d Tug Involved in Accident

    The federal case of Crosby Marine Transp., LLC v. Triton Diving Servs., LLC, CIV. 13-2399, 2014 WL 5026070 (W.D. La. Oct. 8, 2014) arises out of accident which occurred in May 2013, in which a tug, the M/V CROSBY MARINER, and another Crosby Marine Transportation-owned tug, the M/V CROSBY EXPRESS, were moving a barge in Bayou Chene near Amelia, Louisiana. The CROSBY EXPRESS was the lead tug that was towing the barge, while the CROSBY MARINER had the barge on its hip to stabilize the barge during transit.  Both tugs were manned by captains, but all passing arrangements and decisions about the speed of the tow and navigation came from the captain of the lead tug, the CROSBY EXPRESS.

    Mark Rottinghaus, a Crosby Tugs, L.L.C. employee and crewman aboard the M/V CROSBY MARINER, was injured when the M/V TRITON ACHIEVER, a vessel owned and operated by another company, collided with the CROSBY MARINER.

    Crosby Marine Transportation, L.L.C., as owner of the M/V CROSBY MARINER, and Crosby Tugs, L.L.C., as owner pro hac vice of the M/V CROSBY MARINER, filed a Verified Complaint for Exoneration from or Limitation of Liability, pursuant to Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims and the Vessel Owners’ Limitation of Liability Act, seeking to be exonerated or alternatively to limit its liability to the value of the tug, with pending freight, upon which Rottinghaus was serving.  Simultaneously with the filing of its complaint, Crosby filed an Ad Interim Stipulation and posted security only in the amount of its interest in the M/V CROSBY MARINER and pending freight together with interest at the rate of 6% per annum from the date of the stipulation and for costs.

    Rottinghaus then filed a motion under Supplemental Rule F(7) asking the federal judge to order Crosby to increase its filed security to include the value of the other Crosby tug, the CROSBY EXPRESS.  Rottinghaus cited the “Flotilla Doctrine.”  Under this Doctrine,  where vessels involved in a casualty are (i) commonly-owned, (ii) engaged in a common enterprise, and (iii) under a single command, the court may order that all vessels in the flotilla, or their value, together with pending freight, be tendered to the court as security for claimants when the vessel owner files for court protection under the federal Vessel Owners’ Limitation of Liability Act.

    Rule F(7), entitled “Insufficiency of Fund or Security,” states:

    “Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff’s interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff’s interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced.”

    The purpose of Rule F(7), the Court found, “is to ensure that the plaintiff-in-limitation is not permitted to submit an inadequate bond with impunity and that the claimant may not contend that the bond should be higher than the actual value of the vessel.”

    The Court agreed with Rottinghaus and granted his motion under Rule F(7) to increase security.  It ordered that a court-appointed expert appraise the value of both the second tug, the M/V CROSBY EXPRESS, along with the CROSBY MARINER, or, alternatively, that the parties file a stipulation — or written agreement, as to the value of both tugs along with their pending freight, as the Limitation Act and Rule F require.

    * * *

    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, and passengers aboard cruise and excursion boats and ships.  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 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is http://www.golawllc.com.  We practice primarily in PA, WV, and OH, but also all over the inland waterways.

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  • Jury Properly Instructed “Assumption of the Risk” is No Defense, When Employer Injects Such Evidence and Argument Into Case

    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.

    UPIn 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 info@golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

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  • Towboat Company’s One-Sided Review of, and Delay in Paying, Seaman’s Maintenance and Cure Claim Draws $300,000 Punitive Damages Judgment

    In Stermer v. Archer-Daniels-Midland Co., 2014 WL 25153872014 (La. App. 3d Cir.  June 4, 2014), American River Transportation Company (ARTCO) employed Adrienne Stermer as a cook on its towboat.  About two weeks into her hitch, while the towboat was facing up to its tow and Stermer was in the galley, kneeling before an open refrigerator, cleaning a steak sauce tray, the vessel’s movements caused her to lose her balance and fall forward.  Apparently no one warned her to “watch the bump.”  Stermer tried to steady herself by grabbing a shelf inside the refrigerator, but her fingers went through the rack and her right hand was pushed backward.  Her knees hit the floor.  She tried to use her left hand to brace herself for the fall, but instead rolled onto her right ankle.  Nevertheless, she got herself up, brushed herself off, and returned to work.  While she had pain and swelling in her hands and right ankle, she just took Advil.  Stermer testified she was afraid to report her accident for fear of being fired.  But, five days later, when her hands and right ankle continued to swell and she could no longer tie her shoes, Stermer reported her injuries to the boat’s engineer, who informed the pilot.  Stermer then completed an ARTCO accident report.

    Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

    Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

    Three days later, ARTCO put Stermer ashore in Paducah, Kentucky, and to a hospital there.  The history of her injuries that Stermer gave to medical personnel at Western Baptist Hospital was consistent with what she had told the engineer and what she had written in her accident report.  The ER physician diagnosed bilateral hand and wrist sprains and a right ankle sprain, and prescribed antiinflammatories, pain medication, and an air cast for Stermer’s right ankle.  She then returned to her towboat, tried to work, but was relieved, and sent home to Louisiana.

    Later, the vessel’s captain and a deckhand testified they were in the galley when Stermer claimed to have been hurt, that there were two bumps during the facing-up, but they did not see her fall into the refrigerator.  Just five days after Stermer reported her accident, ARTCO sent Stermer a letter asserting her “recent complaints did not manifest itself [sic] in the service of the vessel” and that it would not pay her maintenance and cure.  Three days later, ARTCO sent Stermer another letter, this time to fire her.  It wrote her “willful disregard for the truth … demonstrated an unacceptable standard of conduct.”

    A hand surgery specialist in Louisiana continued to treat Stermer, at first conservatively, but then with surgery, to repair a scapholunate dissociation.  This is a tear in the ligament between the scaphoid and lunate bones in the wrist.  This surgeon found Stermer’s injury was not preexisting.  ARTCO obtained an “IME,” or “independent medical opinion,” from an orthopedic surgeon who opined the injury was present before the accident aboard the towboat.  ARTCO, despite being kept continuously apprised of Stermer’s medical course, and despite Stermer’s demands for maintenance and cure, including a request to pay for her surgery, refused to pay maintenance and cure for two and a half years.  It delayed approving the surgery for 27 months, even though its IME physician agreed Stermer needed the surgery.

    Stermer brought claims in state court against ARTCO for negligence under the Jones Act and, under the general maritime law, for unseaworthiness, maintenance and cure, and retaliatory discharge.  At trial, the judge awarded Stermer on her Jones Act negligence claim nearly $100,000 for lost employee benefits, $337,000 in lost wages, and $200,000 for pain and suffering.  The court also found ARTCO’s refusal to pay Stermer maintenance and cure for two and a half years “arbitrary and capricious” and assessed an additional $300,000 in punitive damages and $150,000 in attorney’s fees.  The court found she had not proved her unseaworthiness and retaliatory discharge claims.

    ARTCO appealed only the punitive damages and attorney’s fee aspects of the trial court’s judgment.  The Louisiana appellate court described the seaman’s maintenance and cure claim under the general maritime law, the deferential standard under which it is to be judged, and the consequences maritime employers face when they callously disregard their maintenance and cure obligation.

    The appeals court in its opinion wrote how maintenance and cure “is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship” and how “[r]ecovery is not dependent upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light.”  To win a maintenance and cure claim, “a seaman need only prove that the injury arose during his service of the vessel” and the seaman does not even have to prove his or her duties caused the injury.

    Continuing, the appeals court noted that while an employer is entitled to investigate a seaman’s claim for maintenance and cure, to rely on recognized defenses to deny benefits when appropriate, and to require corroboration of the claim, the employer cannot be “lax” in its investigation.  Further, the court wrote, “when an employer’s investigation of a seaman’s claim reveals that doubts or ambiguities exist as to whether the seaman is entitled to maintenance and cure, they are resolved in favor of the seaman.”  “If an employer fails to properly investigate a claim for maintenance and cure or unreasonably rejects a claim after investigating the claim, the employer may be liable for compensatory damages that are a consequence of the failure to pay maintenance and cure. … The employer may also be liable for punitive damages and attorney fees if it is ‘more egregiously at fault’ in denying a proper claim for maintenance and cure. … This higher degree of fault has been explained as ‘callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent.’ … An employer’s failure or refusal to consider the medical evidence of an injury or illness submitted by a seaman in support of his claim for maintenance and cure is grounds for concluding the employer’s failure to institute maintenance and cure is arbitrary and willful.”

    The appellate court affirmed the trial court’s $300,000 punitive damages award for willful failure to timely pay maintenance and cure, but sent the case back to the trial court to develop further evidence on the lower court’s attorney’s fee award.  It found ARTCO “considered only evidence that indicated the incident Ms. Stermer reported did not occur before denying her claim for maintenance and cure,” yet disregarded seven key facts that supported the validity of Stermer’s maintenance and cure claim.  The appeals court held: “The totality of the evidence leads to the conclusion that once ARTCO had evidence that no accident occurred, it did not consider evidence corroborating Ms. Stermer’s claim that she was injured October 9.  Under these facts, we find that ARTCO’s investigation of Ms. Stermer’s claim was neither diligent nor reasonable and, therefore, find no manifest error in the trial court’s conclusion that ARTCO was arbitrary and capricious in denying Ms. Stermer’s claim.”  The appeals court also tacked-onto the judgment $10,000 for Stermer’s attorney’s fees on appeal.

    *  *  *

    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, as well as passengers aboard cruise and excursion boats and ships.  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 Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.

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