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  • Coast Guard Dials Back Radar Endorsement Training Requirement

    In a June 7, 2019, notice in the Federal Register the Coast Guard announces a “final rule,” effective July 22, 2019:

    “This rule will affect mariners who have served on radar-equipped vessels, in a position that routinely uses radar for 1 year in the previous 5 years for navigation and collision avoidance purposes, and mariners who have taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years. These mariners will no longer be required to complete a Coast Guard-approved or accepted radar refresher or recertification course in order to renew their radar observer endorsements. We are retaining the existing requirements for mariners seeking an original radar observer endorsement and for mariners who do not have 1 year of routine relevant sea service on board radar-equipped vessels in the previous 5 years or have not taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years.” (emphasis supplied)

    Your blog editor, who has practiced admiralty law for 28 years and taken and successfully passed a Coast Guard-approved radar endorsement course administered by The River School, is highly concerned about this rule change by the Coast Guard.  It dangerously disregards the history of the radar endorsement rule, a rule intended to save lives.

    The radar endorsement rule was promulgated in response to the Amtrak Sunset Limited train derailment disaster.  On September 22, 1993, at 0245 hours, this passenger train was attempting to transit a railroad bridge over Big Bayou Canot, near Mobile, Alabama.  The pilot of the towboat, the M/V MAUVILLA, operated by Warrior & Gulf Navigation, while navigating nearby in fog, did not know where his towboat and tow were on the river system. He thought he was still on the Mobile River and the barges forming his tow had touched up against other barges across the Mobile River.

    In reality, his tow had struck the railroad bridge over Big Bayou Canot, with enough force to displace the center span on which the rails were mounted by 38 inches — more than a yard.

    Aftermath of the 9/22/93 Sunset Limited Disaster

    Unfortunately, the allision (when a moving vessel strikes a fixed object) of the MAUVILLA’s tow of barges with the railroad bridge was not forceful enough to trigger a track displacement warning to the rapidly-approaching train or train controllers, because the rails only bent, they did not break.  So, the electrical circuit comprised by the rails remained intact, and the broken track alarm was never triggered.

    Minutes later, the train, traveling at 72 miles per hour, derailed.  Forty-two passengers and five crewmembers were killed.  Many drowned or died from smoke inhalation. One hundred and three passengers were injured.

    The National Transportation Safety Board (NTSB) found in its report (pdf copy) among the “Probable Causes” of the casualty was the MAUVILLA pilot had received no formal training on how to use his towboat’s radar:

    “The National Transportation Safety Board determines that the probable causes of Amtrak train 2’s derailment were the displacement of the Big Bayou Canot railroad bridge when it was struck by the MAUVILLA and tow as a result of the MAUVILLA’s pilot becoming lost and disoriented in the dense fog because of (1) the pilot’s lack of radar navigation competency; (2) Warrior & Gulf Navigation Company’s failure to ensure that its pilot was competent to use radar to navigate his tow during periods of reduced visibility; and (3) the U.S. Coast Guard’s failure to establish higher standards for inland towing vessel operator licensing. Contributing to the accident was the lack of a national risk assessment program to determine bridge vulnerability to marine vessel collision.”

    In its report, the NTSB recommended the Coast Guard beef-up its radar training requirements:

    “In consultation with the inland towing industry, develop radar training course curricula standards for river towboat operations that emphasize navigational use of radar on rivers and inland waters”

    “Upgrade licensing standards to require that persons licensed as Operators of Uninspected Towing Vessels hold valid river-inland waters radar observer certification if they stand navigation watch on radar-equipped towing vessels and to require that employers provide more specific evidence of training.”

    Why did the Coast Guard relax the radar endorsement rule?  It wrote today in its notice in the Federal Register the rule change was Congressionally-mandated by the Coast Guard Authorization Act of 2015, which required the Coast Guard to “harmonize the expiration dates of the mariner’s radar observer endorsement with expiration of the mariner’s MMC [Merchant Mariner Credential].”

    But, the Coast Guard also wrote its relaxation of the rule was “[i]n response to [President Trump’s] Executive Order 13771 of January 30, 2017,” entitled “Reducing Regulation and Controlling Regulatory Costs.”  This Executive Order arbitrarily directed federal agencies that “for every one new regulation issued, at least two prior regulations be identified for elimination….”  So, the Coast Guard “asked the public and each of the Coast Guard’s federal advisory committees for suggestions on Coast Guard regulations, guidance documents, interpretive documents, and collections of information that should be removed or modified to alleviate unnecessary burdens.” (emphasis supplied)

    The Coast Guard found requiring licensed mariners to take and pass a radar refresher course every five years “unnecessarily burdensome to mariners who serve in a position that routinely uses radar for navigational and collision avoidance purposes.”

    In my view, the fallacy in the Coast Guard’s logic is the pilot of the MAUVILLA would theoretically also have had to “routinely use radar for navigational and collision purposes” in the months or years preceding the Sunset Limited tragedy.

    Many professions, include medical, legal, insurance, and law enforcement, require annual or biennial hours of continuing education or recertification in relevant fields to maintain licensure, accreditation, or qualification.  That’s not “unnecessarily burdensome,” particularly in a profession where lack of proficiency in equipment operation can result in death.

    This is a well-produced National Geographic video on the disaster and its causes: http://www.dailymotion.com/video/x4i17ve

    * * *

    Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.  See http://www.golawllc.com/admiralty-maritime/.  We also represent pleasure and excursion boat passengers who have been injured or killed.  We represent railroad crewmembers injured on the job and bring claims under the FELA (Federal Employers Liability Act).  And we are prepared to represent injured or killed railroad passengers and bystanders, or their families, in the event of a train derailment.  See http://www.golawllc.com/railroad-fela/.

    If you have questions about this post or your or your family’s legal rights under admiralty and maritime law, or the law relating to railroad crashes, derailments, injuries and death, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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  • U.S. Coast Guard Releases Marine Board of Investigation Report on EL FARO Tragedy

    All thirty-three crew members of the container and roll-on/roll-off cargo ship, the EL FARO, perished on October 1, 2015, when the vessel sank near the eye of Hurricane Joaquin, en route from Jacksonville, Florida, to San Juan, Puerto Rico.  The Coast Guard in its report faults, among others, the ship’s master and operating companies.  You can read the enthralling 199-page report here:

    https://media.defense.gov/2017/Oct/01/2001820187/-1/-1/0/FINAL%20PDF%20ROI%2024%20SEP%2017.PDF

    The M/V EL FARO

    Some excerpts from the report’s conclusions:

    • “The loss of the U.S. flagged cargo vessel EL FARO, along with its 33 member crew, ranks as one of the worst maritime disasters in U.S. history, and resulted in the highest death toll from a U.S. commercial vessel sinking in almost 40 years.”
    • “TOTE [the EL FARO’s operator] did not ensure the safety of marine operations and failed to provide shore side nautical operations supports to its vessels.”
    • “TOTE and the Master and ship’s officers were not aware of vessel vulnerabilities and
      operating limitations in heavy weather conditions.”
    • “The Master did not effectively integrate the use of Bridge Resource Management
      techniques during the accident voyage. Furthermore, the Master of EL FARO did not order a
      reduction in the speed or consider the limitations of the engineering plant as EL FARO
      converged on a rapidly intensifying hurricane. This resulted in loss of propulsion, cargo shifting and flooding.”
    • “The crew’s complacency, lack of training and procedures, and EL FARO’s design
      contributed to the crew’s failure to assess whether the vessel’s watertight integrity was
      compromised.”
    • “TOTE’s lack of procedures for storm avoidance and vessel specific heavy weather
      plans containing engineering operating procedures for heavy weather contributed to the loss of propulsion.”
    • “The loss of propulsion resulted in the vessel drifting and aligning with the trough of
      the sea, exposing the beam of the vessel to the full force of the sea and wind.”
    • “A lack of effective training and drills by crew members, and inadequate oversight by
      TOTE, Coast Guard and ABS, resulted in the crew and riding crew members being unprepared to undertake the proper actions required for surviving in an abandon ship scenario.”
    • “After 5:43 AM on October 1, the Master failed to recognize the magnitude of the
      threat presented by the flooding into the hold combined with the heavy weather conditions. The Master did not take appropriate action commensurate with the emergent nature of the situation onboard EL FARO, including alerting the crew and making preparations for abandoning ship.”

    * * *

    Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.  We also represent passengers and families when an injury or death occurs aboard or involving recreational or commercial passenger vessels.

    If you have questions about this post or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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  • Court Finds Seaman’s Protection Act Requires Tug Captain Fired for Reporting Safety Violations be Re-Hired

    In Harley Marine Services, Inc. v. U.S. Department of Labor, 2017 WL 370843 (11th Cir. Jan. 26. 2017), the Court ruled the justification Harley Marine gave for firing tug captain Joseph E. Dady was pretextual, that Harley Marine fired Dady for reporting unsafe activities which violated federal law or regulation, and that Harley knew about Dady’s reports when it fired him. The violations Dady reported related to inadequate crewing, inadequate lookouts, sewage runoff, and steering failure.

    ***
    OSHA has a webpage devoted to the Seaman’s Protection Act and how to report violations:
    https://www.whistleblowers.gov.
    ***

    Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We regularly bring 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–particularly including towboat 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 info@golawllc.com. Our website is www.golawllc.com.

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  • Punitive Damages Claim Against Operator of Lift Bridge, Which Crushed Tug’s Wheelhouse, Killing Captain, May Proceed to Trial

    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.

    Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

    Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

    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.

    * * *

    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 info@golawllc.com.  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.

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  • Tug Operator Ordered to Pay Injured Deckhand’s Attorney’s Fees and Punitive Damages for Willful Failure to Pay Maintenance and Cure

    Ciro Charles Hicks was serving as a deckhand on the Tug PATRIOT, operated by Vane Line Bunkering, Inc., when he injured his shoulder while handling heavy towing gear.  About two months later, following a diagnosis of a possible rotator cuff tear, and failure of a cortisone injection to relieve his pain, Hicks underwent surgery on his shoulder.  Afterwards, he underwent several months of physical therapy, yet continued to have significant pain in his shoulder.  Five months after the surgery, Hicks told his treating physician he still had limited range of motion of his arm.

    Vane Line put Hicks under surveillance.  The investigator obtained video of Hicks planting a small tree and playing with his grandson.  In response to Hicks’ doctor’s request for Vane Line to approve an additional MRI scan, Vane Line showed the doctor the surveillance video and a document purporting to show that Hicks’ job as a deckhand only required light lifting–something Vane Line later conceded was inaccurate.  Based on the video and the incorrect work requirements document, this physician opined Hicks was fit to return to work.  Vane Line then terminated Hicks’ maintenance and cure payments.

    Vane Line Bunkering, Inc.'s Tug PATRIOT

    Vane Line Bunkering, Inc.’s Tug PATRIOT

    Hicks then saw a second doctor, who diagnosed a recurrent rotator cuff tear.  The second doctor recommended another surgery followed by six months of physical therapy to repair the additional shoulder damage. Because of the maintenance rate Vane Line had been paying him before it cut off maintenance, $15 per day, versus his actual food and lodging costs of $69.67 per day, Hicks felt compelled to return to work, even though the second physician had told him his shoulder was still injured.  Severe financial difficulties caused Hicks to miss some of his physical therapy appointments, his house was foreclosed upon, and he was unable to pay for health insurance.

    Hicks then sued Vane Line in federal court.  As reported previously on this blog, the jury found in favor of his employer on Hicks’ Jones Act negligence and general maritime law unseaworthiness claims, but for Hicks on his general maritime law maintenance and cure claim.  The jury found Vane Line breached its general maritime law maintenance obligation to Hicks by paying him an insufficient daily maintenance rate and for prematurely cutting-off maintenance.  The jury verdict included $77,000 in compensatory damages for past maintenance and cure, $16,000 in future maintenance, $97,000 in future cure, and $132,000 to compensate for past pain and suffering.  The jury also found the employer’s failure to pay maintenance and cure unreasonable and willful and included in its verdict an additional $123,000 in punitive damages. Based on the jury’s finding of willfulness, the district court, under Federal Rule of Civil Procedure 54(d), granted Hicks an additional $112,083.77 in attorney’s fees.

    Recently, in Hicks v. Tug PATRIOT, 2015 WL 1740383 (2d Cir. Apr. 17, 2015), the U.S. Second Circuit Court of Appeals affirmed the trial court’s judgment in its entirety.  It found the jury’s findings as to the culpability of Vane Line’s conduct and the damages caused Hicks were entitled to deference, and that Hicks was also entitled, due to Vane Line’s willful conduct, to both attorney’s fees and punitive damages.  The appeals court found support for its decision in the U.S. Supreme Court’s 2009 decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009), in which the Court ruled that punitive damages are available to a seaman under the general maritime law for an employer’s willful failure to pay maintenance and cure.

    * * *

    Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings claims 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.  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 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in PA, WV, and OH, but also all over the inland waterways.

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