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Towboatlaw – Towboat & Barge Lawyer, Admiralty & Maritime Law on the Rivers

  • Jury Awards $100,000 in Punitive Damages to Whistleblower Engineer Under Seaman’s Protection Act

    Jeffrey Polek, a newly-licensed engineer aboard Grand River Navigation Co., Inc.’s M/V MANISTEE, reported to the U.S. Coast Guard a fracture in the vessel’s side shell, after his reports of the fracture to company personnel were shrugged off.  A Michigan federal court jury decided Grand River “unlawfully terminated Plaintiff’s employment because of his good faith report of the hull fracture to the Coast Guard, and further found that Defendant’s retaliatory conduct toward Plaintiff merited an award of punitive damages to punish Defendant for its wrongful conduct.”  In Polek v. Grand River Navigation, 872 F. Supp. 2d 582 (E.D. Mich. 2012), the jury awarded Polek $1,000 in statutory damages, $33,500 in compensatory damages, and another $100,000 in punitive damages.  In awarding punitive damages, the jury found, and the federal district court agreed, the vessel owner’s conduct was unreasonable and reprehensible.

    M/V MANISTEE

    M/V MANISTEE

    At trial, Grand River downplayed the severity of the hull fracture.  The Court found, however:

    “…there was evidence that the fracture was below the waterline when the vessel was in a loaded configuration and was the type of damage about which the Coast Guard expected to be notified.  Both Captain Brezinski and first mate George Bouhall testified at trial that they were admonished by the Coast Guard for not reporting the hull fracture.  While Plaintiff acknowledges that Defendant is correct in observing that it was not ‘cited’ by the Coast Guard, Plaintiff notes that the Coast Guard still issued a Form CG 835 which is a directive to effectuate repairs in a specified period of time—here, immediately upon the vessel’s return to Cleveland.”

    The Court also found that Polek repeatedly expressed his “concern not only for his own safety, but the safety of his fellow shipmates,” and that Grand River “disregarded his legitimate concerns.”

    Polek presented evidence at trial showing that Grand River’s conduct in concealing facts from the Coast Guard was not an isolated occurrence.  In response to Polek’s expression of “legitimate and bonafide safety concerns,” Grand River personnel labeled Polek a “potential liability to the company,” called his concerns the “non-sensical ravings of a junior engineer,” and branded him a “weenie.”

    In addition to assessing punitive damages, to emphasize their feelings about Grand River’s conduct, the jury returned a note along with their verdict which stated:

    “On [b]ehalf of the jury we wish to extend one additional comment to Grand River Navigation Co., Inc. After extensive discussion regarding the content of the case we collectively recommend that the company invest the resources necessary to improve the management skills of their organization’s structure.”

    *   *   *

    The Seaman’s Protection Act, enacted by the U.S. Congress in 2010, codified at 46 U.S. Code § 2114, formally entitled, “Protection of seamen against discrimination,” provides as follows:

    (a)
    (1) A person may not discharge or in any manner discriminate against a seaman because—
    (A) the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;
    (B) the seaman has refused to perform duties ordered by the seaman’s employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;
    (C) the seaman testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;
    (D) the seaman notified, or attempted to notify, the vessel owner or the Secretary of a work-related personal injury or work-related illness of a seaman;
    (E) the seaman cooperated with a safety investigation by the Secretary or the National Transportation Safety Board;
    (F) the seaman furnished information to the Secretary, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
    (G) the seaman accurately reported hours of duty under this part.
    (2) The circumstances causing a seaman’s apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman’s employer.
    (3) To qualify for protection against the seaman’s employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
    (b) A seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman’s request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection (b) of section 31105 of title 49. Such complaint shall be subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section.

    *   *   *

    Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.  If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • Unseaworthiness Under the General Maritime Law: Court Decision Highlights Jones Act Seaman’s Powerful Claim to Recover for Injury

    In Laborde v. SGS North America, Inc., 2012 U.S. Dist. LEXIS 170544 (M.D. La. Nov. 29, 2012), Brent Laborde sued his employer, SGS, as a seaman under the Jones Act, 46 U.S.C.A. § 30104, for personal injuries he coil_of_ropesustained while moving a heavy coil of rope aboard the M/V Helen G, which was also owned, operated, and maintained by SGS.  He claimed SGS was negligent and the M/V Helen G was unseaworthy.  SGS filed a motion for partial summary judgment, asking the federal trial court to dismiss Laborde’s unseaworthiness claim.  In his opinion denying SGS’s motion, Judge James J. Brady of the U.S. District Court for the Middle District of Louisiana reviewed the law on the vessel owner’s warranty of seaworthiness which it owes its crewmembers, and what can constitute an “unseaworthy” condition aboard a vessel.

    Citing the U.S. Supreme Court’s decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, (1960), the Baton Rouge-based court discussed how a shipowner’s warranty of seaworthiness encompasses a duty to “furnish a vessel and appurtenances reasonably fit for their intended use.”  Other courts have explained this duty as requiring the vessel owner to “provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purpose for which it is to be used.”  Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002).  Unseaworthiness can also be “manifested by an unsafe method of work, such  as the failure by a shipowner to provide adequate equipment for the performance of an assigned task.”  Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354-1355 (5th Cir. 1988).

    In Usner v. Luckenbach, 400 U.S. 494, 498 (1971), the Supreme Court held that “unseaworthiness is a condition, and how that condition came into being – whether by negligence or otherwise – is quite irrelevant to the owner’s liability for personal injuries resulting from it.”

    To win an unseaworthiness claim, the seaman plaintiff must also establish causation, that is, prove that the “unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d at 1354.

    Under the general maritime law, there is a difference between “transitory unseaworthiness,” which subjects a vessel owner to liability, and “instant unseaworthiness,” caused by a single, unforeseeable act of operational negligence, which does not.  A transitory unseaworthy condition, like a permanent defect, will render a ship unseaworthy.

    Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.  If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • Court Holds “Thunder Horse” Floating Production Drilling Quarters Not “Vessel” Under Maritime Law, So Injured Claimant Cannot Be Jones Act Seaman

    BP’s production drilling quarters “Thunder Horse,” located in 6,000 feet deep waters approximately 175 miles southeast of New Orleans in the Gulf of Mexico

    In recent years, the oil and gas industry has designed, built, and installed in the Gulf of Mexico hugely expensive and technologically complex drilling and production structures capable of extracting hydrocarbons from beneath the seabed in the Gulf’s deep waters.  In shallower waters, the industry can use jack-up drilling rigs, which, since they have hulls and other vessel-like features, and are comparatively easy to relocate from well to well, courts have repeatedly held are “vessels in navigation” for purposes of admiralty and maritime law.  If a crewman of a “vessel in navigation” is injured, then he or she is generally entitled to bring personal injury claims as a “seaman” under the federal Jones Act (for negligence) and under the general maritime law (or federal common law) for unseaworthiness and maintenance and cure.  But, if the structure is not a “vessel in navigation,” then the worker injured while working on it cannot claim to be a crewman of a “vessel in navigation” and entitled to the remedies reserved to seamen.

    Kerr-McGee’s spar, “Red Hawk,” in 5,300 feet of water in the Gulf of Mexico

    A typical jack-up drilling rig

    Recently, a federal district court in Louisiana held that a massive “floating production drilling quarters” called the Thunder Horse, operated by BP, is not a “vessel in navigation,” and, thus, that the claimant, a worker aboard the structure, could not be a seaman as to that structure, and thus that he was not entitled to pursue a seaman’s personal injury claims, noted above.  In Washington v. BP America, Inc., 2012 U.S. Dist. LEXIS 164371 (W.D. La. Nov. 16, 2012), the court focused on how the Thunder Horse was, with reference to the U.S. Supreme Court’s 2005 decision in Stewart v. Dutra Construction Co., not “practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.”  In Stewart, the Supreme Court concluded, “[t]he question remains in all cases whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.”  In Washington v. BP America, Inc., the court decided the Thunder Horse, like another deep water drilling and production structure at work in the Gulf of Mexico, a “spar” called Red Hawk, is a “work platform,” not a “vessel.”

    The key aspects of the Thunder Horse which render it a “work platform,” and not a “vessel,” the court found, are:

    • While it floats like a vessel (on four partially submerged columns), it lacks any means of significant self-propulsion.
    • It was towed to its location in the Gulf of Mexico.
    • It lacks a raked bow.
    • It is “secured to the Outer Continental Shelf with 16 wire and chain mooring lines attached to 19-foot wide piles driven 90 feet into the seabed.”
    • Thunder Horse is connected to the seabed by eight hydrocarbon production lines.
    • Thunder Horse can only move within a 350-foot radius by tightening and slackening its mooring lines and, apart from being temporarily jarred outside this radius in 2005 by Hurricane Dennis, the structure “has stayed within the 350-foot radius.”
    • BP plans to keep Thunder Horse secured to the Outer Continental Shelf for the balance of the 25 year productive life of the wells it services.
    • BP estimated $400 million as the cost to detach Thunder Horse’s mooring lines, secure the wells, and move the structure elsewhere.

    Having found the Thunder Horse is not a “vessel,” the Louisiana federal court also concluded the plaintiff in the case, Terrance Washington, who was working as a cook, and who claimed he was injured after he slipped and fell on a walkway on the structure, could not be a seaman under the Jones Act as to the Thunder Horse, and therefore he was not entitled to pursue a seaman’s personal injury claims against BP.

    Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.  If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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  • Welcome to Towboatlaw

    Welcome to Towboatlaw, a blog focused on admiralty & maritime law as it is applied by judges and lawyers on the rivers and other inland waterways of the United States.  My name is Fred Goldsmith.  I am a lawyer who focuses his practice on admiralty and maritime law.  I, along with my partner, Rich Ogrodowski, am the co-founder of Goldsmith & Ogrodowski, LLC (http://www.golawllc.com), a law firm based in Pittsburgh, Pennsylvania, which is dedicated to representing workers, or families of workers, who have been seriously injured or killed working aboard towboats and barges as deckhands, pilots, captains, engineers, mates, and cooks.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

    Through this blog I hope to highlight legal and other issues that may interest the men and women, and their families, who work in one of the most important, yet dangerous, occupations in this country.  Towboats push barges on the inland waterways, or “brown waters,” of the United States, transporting products which are critical to the American economy, such as: coal for power plants and steel mills; oil, gasoline, and diesel to power and lubricate cars, trucks, and machinery; sand, gravel, and other aggregates which are used to pave our streets and highways, build our homes, offices, and factories; steel, aluminum, and scrap metals which are the building blocks of automobiles, refrigerators, freezers, and the feedstock for steel mills; and corn and wheat for our domestic food industries and for export.

    Paddlewheel towboat “Mark Twain” and barge tow circa 1930s

    The basic technology of the river industry, as important as it is, however, has not really changed in over 100 years.  Towboats (sometimes also called “pushboats”), historically powered by steam-driven engines, yet now diesel-powered, still, as they were many decades ago, are wired to (or “faced up” to) and push barges, formerly made of wood, now made of steel.  This industry still requires men and women to be away from home and family for days and weeks at at time.  It still demands these same men and women work around the clock, every single day of the year, in the heat and humidity of a Louisiana summer and the numbing cold of a western Pennsylvania winter.  They must work in ultra-hazardous locations, amidst tremendous forces.

    The most unfortunate part of the towboat and barge industry, however, is when companies do not operate their vessels safely.  When companies are unsafe, when they fail to have a corporate culture focused on safety, from the chairman on down, it is these men and women, who serve as deckhands, engineers, captains, pilots, mates, and cooks, who can be seriously injured or killed.  I have been involved in maritime law for over two decades.  I have seen cases involving maritime workers who have suffered, for instance, electrocutions, amputations, and serious back injuries requiring the surgical fusing together of vertebrae and the surgical implantation of titanium rods and screws.

    In my law practice, I endeavor to stay abreast of the changing landscape of the law, including state and federal statutes, regulations, and judicial decisions, which applies to the cases I used to defend, but now prosecute, when these hardworking men and women are injured or killed.  Through this blog, I intend to share with you some of these legal developments.  I hope you find the blog interesting and enlightening.

    If you have questions you’d like to ask our lawyers about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

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