Published: January 24, 2014
By: Frederick B. Goldsmith
I posted in Towboatlaw on this case in January 2013, four days after U.S. District Judge Nina Gershon entered her decision in Harrington v. Atlantic Sounding Co., 2013 U.S. Dist. LEXIS 2988 (E.D.N.Y. Jan. 7, 2013), finding Atlantic Sounding Co., Inc. and Weeks Marine, Inc. negligent under the Jones Act and the tug CANDACE unseaworthy under the general maritime law. She found no contributory negligence and awarded Frederick J. Harrington Jr., 52 at the time of the accident, $478,948 in past lost wages and loss of future earning capacity, $500,000 for past pain and suffering, and $700,000 for future pain and suffering. The defendants appealed to the U.S. Second Circuit Court of Appeals.
Three days ago, in Marasa v. Atlantic Sounding Co., 2014 U.S. App. LEXIS 1073 (2d Cir. Jan. 21, 2014) (unpub.), this appeals court largely affirmed the judgment, which, with prejudgment interest, totaled $1,727,471.16. The Second Circuit only reduced the judgment by $16,308, the sum which the defendants previously paid pursuant to a Claim Arbitration Agreement.
Of particular interest in the appeals court’s decision is its approval of the trial court’s findings in favor of the injured crewman on his claim for general maritime law unseaworthiness, and the trial judge’s award of $1.2 million for past and future pain and suffering damages.
As to unseaworthiness, the Second Circuit wrote how its precedent has long held that a vessel can be unseaworthy if its crew is inadequately trained: “Our precedent recognizes that ‘a vessel being operated by an incompetent captain or crew is considered unseaworthy,'” citing Complaint of Messina, 574 F.3d 119, 127 (2d Cir. 2009), Matter of Guglielmo, 897 F.2d 58, 61 (2d Cir. 1990), Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1155 (2d Cir. 1978), and 1B Benedict on Admiralty § 24 (2004) (recognizing that “an unseaworthy condition . . . on an otherwise fit vessel” can be created by “incompetent training or experience” or “unsafe method of work”).
In affirming Judge Gershon’s assessment of $500,000 in past and $700,000 in future pain and suffering damages, the Second Circuit found, first, that even though the injured crewman, Frederick J. Harrington Jr., died while the appeal was pending (Madeline Marasa is the personal representative of Harrington, in whose name the appeal was defended), the defendants were unentitled to a reduction in his estate’s future pain and suffering damages award. Second, the appeals court discussed how the trial court found “Harrington’s injury resulted in extraordinary pain and suffering, requiring multiple spinal surgeries and daily medication.” Judge Gershon had described in detail Harrington’s two back surgeries and the many activities he could no longer perform, given his injuries. Accordingly, the Second Circuit did not find the $1.2 million pain and suffering damages award excessive, and affirmed.
* * *
Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen 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 email@example.com.
Published: September 23, 2013
By: Frederick B. Goldsmith
Since the U.S. Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), lower state and federal courts have been grappling with whether punitive damages and other nonpecuniary damage claims (like loss of consortium and loss of society) are available to seamen under the general maritime law, and to longshore and harbor workers in a negligence action against vessel operators under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Section 905(b) (“LHWCA”).
Section 905(b) of the LHWCA states:
“(b) Negligence of vessel. In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USCS § 933], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act.”
In Callahan v. Gulf Logistics, LLC, 2013 U.S. Dist. LEXIS 133050 (W.D. La. Sept. 16, 2013), U.S. District Judge Patricia Minaldi of the Western District of Louisiana, Lake Charles Division, found, citing the U.S. Supreme Court’s Atlantic Sounding decision, that a longshoreman could recover punitive damages under the general maritime law in a negligence action, and that such damages were not prohibited by Section 905(b) or the Supreme Court’s 1990 decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990).
Judge Minaldi wrote:
“Further, the Court in Townsend dispensed with the petitioners’ argument that Miles precluded the availability of punitive damages under general maritime law, stating that a reading which interprets Miles as ‘limit[ing] recovery in maritime cases involving death or personal injury to the remedies available under the Jones Act and the Death on the High Seas Act (DOHSA) . . . is far too broad.’ Townsend, 557 U.S. at 418-19 (citing 46 U.S.C. §§ 30301-30306). ‘[B]y providing a remedy for wrongful death suffered on the high seas or in territorial waters, [Miles recognized that] the Jones Act and DOHSA displaced a general maritime rule that denied any recovery for wrongful death.’ Id. at 419 (citing Miles, 498 U.S. at 23-24). Thus, the Court in Miles was tasked only with determining whether statutory maritime law such as the Jones Act and DOHSA expanded the relief previously available under general maritime law. Id. Discussing such relief, the Court notes that punitive damages ‘were well established before the passage of the Jones Act.’ Id. at 420 (internal citations omitted). As such, these were damages previously available as part of general maritime law, and the availability of such damages was not altered by the enactment of § 905(b). Ultimately, the Supreme Court finds that ‘the availability of punitive damages for maintenance and cure actions is entirely faithful to these ‘general principles of maritime tort law,’ and no statute casts doubt on their availability under general maritime law.’ Id. at 421….As a result of the Supreme Court’s recent assertion in Townsend, and its clarification of its holding in Miles, it seems clear that punitive damages are available for actions under general maritime law unless Congress has expressly forbade such availability. This court finds nothing in the language of § 905(b) which could be construed as so limiting the availability of punitive damages in a negligence action under the LHWCA.”
The Court also explained why it was not following a contrary view of at least one other Louisiana federal trial court: “It should be noted that the court is aware that at least one other court in this circuit has reached a contrary conclusion on this issue. See In re: Int’l Marine, L.L.C., 2013 U.S. Dist. LEXIS 91370, 30 (E.D. La. 2013) (holding that under Scarborough v. Clemco Indus., 391 F.3d 660 (5th Cir. 2004), a seaman and his spouse are barred from seeking punitive damages . . . from a non-employer third party.). However, the court therein acknowledged that ‘[t]he reasoning employed in Townsend casts doubt on the continued applicability of Scarborough.’ Id. at 31, n. 10.”
We view this decision as highly positive for our clients. Our law firm, Goldsmith & Ogrodowski, LLC, represents captains, pilots, deckhands, engineers, and cooks who serve aboard towboats, barges, and other commercial vessels, as well as longshore and harbor workers, who are seriously injured or killed on the job. If you have questions about your or your family’s legal rights under 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.