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  • NTSB Posts “Illustrated Digest” on Why the EL FARO Sank, Killing 33 Souls

    The National Transportation Safety Board recently published online a concise and easy-to-understand 16-page pdf document entitled “Sinking of the US Cargo Vessel El Faro.”  The ship sank on October 1, 2015, 36 nautical miles northeast of Acklins and Crooked Islands, Bahamas, and close to the eye of Hurricane Joaquin, which packed average wind speeds of 117 knots (134 miles per hour).

    The document, an illustrated brochure, includes the timeline and track of the ship’s final voyage, highlights of key decisions made by the ship’s captain, examples of the disregarding by the captain of timely weather data, the lack of shoreside oversight by the ship’s owner, an explanation of how seawater got inside the ship, and several of the NTSB’s safety recommendations made to try to prevent a re-occurrence.

    https://www.ntsb.gov/investigations/AccidentReports/Reports/SPC1801.pdf

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    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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  • 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.”

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    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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  • 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.

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    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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  • Survivors of Tug Captain Found Dead and Floating Alongside Allowed to Proceed With Claims Against Tug Owner

    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 info@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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