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
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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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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Court Invokes Flotilla Doctrine, Orders Vessel Owner to Increase Security in Limitation Act Case to Include Value of 2d Tug Involved in Accident
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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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.
In 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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Port Engineer Who Worked Mostly on Stationary Vessels Entitled to Jury Trial on Seaman Status
In Haas v. Beatty Street Properties, Inc., 2014 WL 2932258 (S.D. Tex. June 27, 2014), Timothy Haas worked as an assistant port engineer for Beatty Street Properties, Inc. (“BSP”). His job was to maintain the mechanical systems on BSP’s boats. He spent about 90% of his working hours on the boats, which were docked about 60% of the time. But, about 40% of the time, the boats were moving, often carrying pilots to ships. One day, while working on a docked boat, Haas claimed he injured his lower back while handling a water pump.
BSP asked the court to dismiss his Jones Act case, arguing Haas couldn’t possibly be a seaman. The court refused Haas’ employer’s motion, citing the Fifth Circuit’s 2014 decision in Naquin v. Elevating Boats, L.L.C., 744 F.3d 927 (5th Cir. 2014). Judge Costa found that the appeals court in Naquin had held that “an employee who performed nearly all of his work on docked vessels was a seaman.” Accordingly, the court ruled Haas was entitled to a jury trial on whether he qualified as a seaman under the Jones Act.
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