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 firstname.lastname@example.org.
Published: October 18, 2013
By: Frederick B. Goldsmith
In McBride v. Estis Well Service, L.L.C., 2013 U.S. App. LEXIS 20187 (5th Cir. Oct. 2, 2013), a panel of the U.S. Fifth Circuit Court of Appeals, one of, if not the, most respected federal appellate courts when it comes to the development of maritime law in the United States, found that the Jones Act, which has been held to prohibit the recovery by seamen of non-pecuniary damages in a negligence claim brought under that statute, was no bar to the recovery of a form of non-pecuniary damages, specifically punitive damages, under the general maritime law in a seaman’s unseaworthiness action. The Court described how punitive damages were available under the general maritime law long before the passage in 1920 of the Jones Act, and how the Jones Act did not expressly eliminate such damages.
The Fifth Circuit navigated around the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), by following the Supreme Court’s more recent decision in Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009). In Townsend, the Supreme Court wrote:
“Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law. Limiting recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater pre-emptive effect to the Act than is required by its text, Miles, or any of this Court’s other decisions interpreting the statute.”
The Fifth Circuit in McBride v. Estis Well Service, L.L.C built on the foundation excavated by the Supreme Court in Townsend, writing:
“…Townsend established a straightforward rule going forward: if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remains available under that cause of action unless and until Congress intercedes.”
We viewed this as a good decision for our clients and the river industry workers we regularly represent. Unfortunately, on September 25, 2014, all the judges of the Fifth Circuit Court of Appeals, sitting en banc, revisited this decision and overruled it, and on May 18, 2015, the U.S. Supreme Court decided not to review that decision. Perhaps after this issue has been addressed by other federal circuit courts of appeal, and conflicts develop amongst the circuits, the U.S. Supreme Court will agree to address the issue of the recoverability by Jones Act seamen of both punitive and loss of consortium / loss of society damages under the general maritime law. We believe they are recoverable under the sound logic of the U.S. Supreme Court’s 2009 decision in Atlantic Sounding Co. v. Townsend.
Our law firm, Goldsmith & Ogrodowski, LLC, serves as legal counsel for 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.