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 email@example.com. We practice primarily in PA, WV, and OH, but also all over the inland waterways.
Published: October 17, 2014
By: Frederick B. Goldsmith
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.
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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, 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 firstname.lastname@example.org. Our website is http://www.golawllc.com. We practice primarily in PA, WV, and OH, but also all over the inland waterways.
Published: November 15, 2013
By: Frederick B. Goldsmith
Two days after Christmas 2009 aboard the Tug TURECAMO GIRLS, deckhand Ricardo Young was crushed to death in the tug’s capstan. Medical experts testified Young was conscious for over two minutes to experience his body being torn apart as the towing line, attached to a sludge barge weighing 15 million pounds, wrapped him around the capstan while the captain attempted a “swing maneuver” on the Hackensack River. The case was tried to the bench. In In re Moran Towing Corp., 2013 U.S. Dist. LEXIS 161482 (S.D.N.Y. Nov. 11, 2013), the court found Moran directly and vicariously negligent under the Jones Act and its tug unseaworthy under the general maritime law.
The court found:
“Moran failed to adequately implement any procedures or guidelines that would provide its crew with the requisite training, skill and knowledge to safely perform a swing maneuver, operate the capstan or handle towlines. … In fact, Moran issued no policies as to line-handling whatsoever, including ongoing training or standards for handling a line under strain. Additionally, Moran did not provide a safe work environment in which to handle the capstan, forcing Young to operate in a danger zone. These failures proximately contributed to Young’s death.”
The court further found:
“Moran also failed to provide any written policies or safety procedures regarding the swing maneuver as required under the ISM [International Safety Management Code] and RCP [American Waterways Operators Responsible Carrier Program]. Moran adheres to the ISM and the RCP, which respectively require that ‘the company should establish procedures, plans and instructions, including checklists as appropriate, for key shipboard operations concerning the safety of the personnel’ and ‘establish documented procedures for the use of . . . winches.’ … The capstan is a type of winch, and line-handling is arguably the most important ‘shipboard operation.’ … Despite subscribing to these safety requirements, Moran did not have any written guidelines, instructions or procedures whatsoever for line handling during swing maneuvers or capstan operations. … Moran did not have a risk assessment for a swing maneuver or handling lines under pressure, or safety procedures for capstan operations in any of its Port Advisories or safety meetings, or require its captains and crews to dedicate time during the safety meetings to discuss or practice the swing maneuver or capstan operations for lines under strain. … Additionally, Moran’s [safety and operations manual] contains no instructions with respect to line handling or the swing maneuver.”
The court held Moran had failed to prove it was entitled to limit its liability under the Vessel Owners’ Limitation of Liability Act and that Young’s widow and estate were entitled to about $1.6 million in damages.
Our law firm, Goldsmith & Ogrodowski, LLC, represents the families of captains, pilots, 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 email@example.com.
Published: September 13, 2013
By: Frederick B. Goldsmith
In In Re: BOPCO, L.P., 2013 U.S. Dist. LEXIS 128991 (E.D. La. Sept. 9, 2013), two vessels collided at the intersection of the Back Levee Canal and the Main Canal at Point à La Hache, Louisiana. BOPCO, L.P.’s vessel, the M/V MR. JOE, operated by Captain Tyrell DuPont, collided with crabber Ryk Frickey’s vessel as Frickey was returning from checking his traps. It was a clear day, but the view of the intersection the two vessels was entering was partially obstructed by vegetation and marsh grass. The Court, well-respected U.S. District Judge Helen Ginger Berrigan, found the M/V MR. JOE had an operational radar system, but it was not in use.
BOPCO filed this lawsuit under the federal Vessel Owners’ Limitation of Liability Act, 46 U.S.C. Section 30501, et seq., seeking to limit its liability to the value of its vessel, $45,000. Frickey, however, was seriously injured in the collision. He was unable to return to work and had to undergo lumbar fusion surgery.
A jury found BOPCO negligent under the general maritime law and awarded damages to Frickey. It found BOPCO 75% at fault, Frickey 25%. Judge Berrigan, in this decision, addressed whether BOPCO was entitled under the Limitation of Liability Act to limit its damages exposure to Frickey to the $45,000, which was the value of its vessel. The Court described the burden on a vessel owner in these circumstances:
“The Limitation of Liability Act provides that a vessel owner may limit its liability after an accident to the value of the vessel and pending freight….Despite this, if ‘the vessel’s negligence or unseaworthiness is the proximate cause of the claimant’s loss, the [defendant]-in-limitation must prove it had no privity or knowledge of the unseaworthy conditions or negligent acts.’…Privity or knowledge is understood to be complicity in the fault that caused the accident….Privity or knowledge is imputed to a shipowner if he personally participated in the negligent conduct or brought about the unseaworthy condition….A corporation has knowledge of the negligent act if its managing officers knew or should have known about conditions or accidents likely to cause the loss….The corporation may be found to have knowledge if the negligent condition could have been discovered through reasonable diligence….The corporation must overcome a presumption that its officers and managers had actual knowledge, and that they should have known of the negligent condition that caused the harm….The burden of proving lack of privity or knowledge of the negligence by a preponderance of the evidence is on the owner of the vessel seeking to limit its liability.”
In this case, BOPCO argued to the Court that the accident occurred soley because of navigational or other errors of its captain—that is, acts of negligence of which it could not have had privity to or knowledge of, and that it had done all it had to do by hiring a competent captain. Judge Berrigan disagreed. She found BOPCO’s Captain DuPont “did not make a decision not to operate the radar because he thought it would be a better idea to use binoculars.” Rather, the Court held, “DuPont followed BOPCO’s policy not to operate the radar system on a clear day in the channel.” (emphasis added) Thus, Judge Berrigan found BOPCO had privity or knowledge of the accident’s causes and thus could not limit its liability under the Limitation of Liability Act because BOPCO “(1) failed to train DuPont, and (2) not only failed to require the use of radar, but had a policy stipulating that radar should not be used in conditions such as those on the day of this accident.”
Specifically, the Court wrote: “While DuPont knew that he was required to follow the Rules of the Road, and had a general knowledge of what he thought the rules were, his idea of the Rules of the Road was clearly hazy, and this led him not to follow the Rules, which led to the collision….The Court agrees with Frickey that it was not enough for BOPCO’s safety manual to require a vessel operator to know and obey the Rules of the Road. BOPCO needed to train DuPont on the Rules. It was required to do due diligence to know that DuPont had not received past training, and BOPCO’s lack of due diligence leads to privity or knowledge of the accident that ensued as a result of DuPont not receiving proper training.”
On the policy of BOPCO to not require use of radar during the day, the Court was highly critical. Judge Berrigan wrote:
“BOPCO was required to use its radar. Fernandez explained that the reason he tells his men not to turn the radar on during the day is that it is ‘almost looking like at a video game while you’re driving.’ Fernandez said that he would prefer for his captains to have their eyes on the waterways. BOPCO made its decision to tell its captains not to use radar during the day in contravention of the Rules of the Road. The Court does not understand how radar could be distracting during the day, but not during the night. Additionally, people drive with GPS devices all the time, and while they may be distracting, they are considered to be more helpful than they are distracting. A device, such as radar, that is not just helpful, but also a tool to ensure greater safety, is surely more of a help than it is a hindrance. Under Judge Learned Hand’s theory, the burden of taking the precaution to use radar is certainly less than the probability of the accident multiplied by the injury. It was negligent for BOPCO not to use the radar, and BOPCO propagated the negligence through a policy. Even Fernandez admitted that there is no harm in using radar on a bright, sunny day.”
Since BOPCO was not entitled to the cap afforded by a successful invocation of the Limitation of Liability Act, Judge Berrigan held it responsible for Frickey’s damages, as follows: (A) $258,571.78 for medical expenses, past and future; (B) $50,250.00 for loss of earning capacity, past and future; (C) $153,750.00 for physical pain and suffering, past and future; and (D) $367,500.00 for mental anguish and emotional distress, past and future.
Our law firm, Goldsmith & Ogrodowski, LLC, represents captains, pilots, deckhands, engineers, and cooks who serve aboard towboats, barges, and other commercial vessels who, like Frickey, are seriously injured or killed on the job. We regularly face vessel owners who attempt to assert the Vessel Owners’ Limitation of Liability Act as a defense. If you have questions about your or your family’s legal rights under maritime, or 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.
Published: August 26, 2013
By: Frederick B. Goldsmith
In two unrelated Vessel Owner’s Limitation of Liability Act (46 U.S.C. § 30501, et. seq.) cases decided the same day, a Wheeling, West Virginia-based federal judge ruled in Complaint of: Bellaire Harbor Service, LLC, 2013 U.S. Dist. LEXIS 117991 (N.D. W. Va. Aug. 20, 2013) and In re Campbell Transportation Co., 2013 U.S. Dist. LEXIS 117992 (N.D. W. Va. Aug. 20, 2013), that the vessel owners were seeking more than the general maritime law entitled them to in attempting to require the injured claimants–both Jones Act seamen–to stipulate, in order to resume their West Virginia state court lawsuits, that the vessel owners were entitled to litigate the issue of exoneration from liability, in addition to the issue of limitation of liability, in federal court. The Court wrote:
“If courts required an exoneration stipulation prior to lifting the stay on a case, courts would be ‘enlarg[ing] shipowners’ rights under the Limitation Act and abridg[ing] claimants’ rights under the savings to suitor clause’….This Court agrees with the Fifth Circuit’s explanation and analysis of the issue. Thus, again this Court finds that the claimants need not stipulate to the plaintiffs’ right to litigate the exoneration issue in this Court. The claimants’ stipulation to the plaintiffs’ right to litigate all issues related to the limitation of liability, along with the claimants’ other stipulations, is sufficient for this Court to lift the injunction on the state court action and grant the motion to stay this action.”
The Court also held in the cases:
Our law firm, Goldsmith & Ogrodowski, LLC, represents the towboat deckhand claimants in the above cases and we regularly represent deckhands and other crewmen of towboats, barges, and other commercial vessels who are seriously injured or killed on the job. If you have questions about your or your family’s legal rights under maritime, or 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 email@example.com.