Published: December 7, 2012
By: Frederick B. Goldsmith
In Laborde v. SGS North America, Inc., 2012 U.S. Dist. LEXIS 170544 (M.D. La. Nov. 29, 2012), Brent Laborde sued his employer, SGS, as a seaman under the Jones Act, 46 U.S.C.A. § 30104, for personal injuries he sustained while moving a heavy coil of rope aboard the M/V Helen G, which was also owned, operated, and maintained by SGS. He claimed SGS was negligent and the M/V Helen G was unseaworthy. SGS filed a motion for partial summary judgment, asking the federal trial court to dismiss Laborde’s unseaworthiness claim. In his opinion denying SGS’s motion, Judge James J. Brady of the U.S. District Court for the Middle District of Louisiana reviewed the law on the vessel owner’s warranty of seaworthiness which it owes its crewmembers, and what can constitute an “unseaworthy” condition aboard a vessel.
Citing the U.S. Supreme Court’s decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, (1960), the Baton Rouge-based court discussed how a shipowner’s warranty of seaworthiness encompasses a duty to “furnish a vessel and appurtenances reasonably fit for their intended use.” Other courts have explained this duty as requiring the vessel owner to “provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purpose for which it is to be used.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Unseaworthiness can also be “manifested by an unsafe method of work, such as the failure by a shipowner to provide adequate equipment for the performance of an assigned task.” Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354-1355 (5th Cir. 1988).
In Usner v. Luckenbach, 400 U.S. 494, 498 (1971), the Supreme Court held that “unseaworthiness is a condition, and how that condition came into being – whether by negligence or otherwise – is quite irrelevant to the owner’s liability for personal injuries resulting from it.”
To win an unseaworthiness claim, the seaman plaintiff must also establish causation, that is, prove that the “unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d at 1354.
Under the general maritime law, there is a difference between “transitory unseaworthiness,” which subjects a vessel owner to liability, and “instant unseaworthiness,” caused by a single, unforeseeable act of operational negligence, which does not. A transitory unseaworthy condition, like a permanent defect, will render a ship unseaworthy.
Published: December 3, 2012
By: Frederick B. Goldsmith
The New York Court of Appeals on November 29, 2012, resolved the issue of whether the State of New York “can be held liable to individuals who were injured and the personal representatives of those who lost their lives due to the tragic capsizing of a public vessel — the Ethan Allen.” The court, in Metz v. State of New York, held “that because the State owes no special duty to these claimants, the claims that the State’s inspectors failed to certify safe passenger capacity on the vessel must be dismissed.”
Forty-seven mostly elderly passengers were aboard the tour boat “Ethan Allen” on October 2, 2005, for what was to be a one-hour cruise to view foliage along Lake George. The boat suddenly capsized and sank in 70-feet deep waters. Twenty passengers died. Several others were injured. As a “public vessel,” the Ethan Allen was subject to yearly state inspections, following which an inspector appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation would issue a certificate indicating the vessel’s maximum passenger capacity. When the Ethan Allen sank, it was carrying 47 passengers and one crewmember, thus within the 48-passenger limit set forth in its state-issued certificate of inspection.
New York’s “Navigation Law” requires a certificate of inspection to operate a a public vessel upon the state’s waters. A state inspector must carefully examine the vessel and its equipment and only if satisfied that the vessel is in all respects safe and conforms to the requirements of the Navigation Law execute the certificate of inspection. The state inspector is also required to set forth in the certificate of inspection the number of passengers the vessel can safely transport and the number of crewmembers necessary to safely operate the vessel.
The Ethan Allen was built in 1964 and first inspected by the U.S. Coast Guard. The vessel’s last U.S. Coast Guard-issued certificate of inspection stated its maximum passenger capacity was 48 persons and that two crewmembers were required to be aboard. Testimony in the case indicated that when New York took over issuing the Ethan Allen’s certificate of inspection in 1979, until the date of the accident, the boat’s passenger capacity remained at 48. The boat’s passenger capacity remained unchanged even though its owners modified it in 1989 by replacing its canvas canopy with a heavier one made of wood. Several state inspectors testified they did not independently verify the vessel’s passenger capacity by conducting a stability test, but rather relied on the number certified from the previous year. One inspector agreed the passenger capacity figure was simply “rubber stamped,” based on the previously-issued capacity figure from the prior certificate of inspection. Another inspector referred to the Coast Guard COI’s passenger capacity number as “gospel.”
The New York Court of Appeals agreed with the plaintiffs that “[t]he 48-passenger limit certified by the State inspectors was, however, much higher than the level at which the vessel could safely be operated. Notably, since this accident, the State has increased the average weight per passenger from 140 pounds — an approximation apparently adopted in the 1950s and utilized by the Coast Guard — to 174 pounds.” The plaintiffs sued the State of New York, claiming it was “negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified.” In response, the state raised several affirmative defenses, including governmental immunity, which was the primary focus of the appeal to the New York Court of Appeals.
The Court of Appeals wrote that its prior decisions had established that “claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity,” and that “it is well settled that the State ‘is not liable for the negligent performance of a governmental function unless there existed ‘a special duty to the injured person, in contrast to a general duty owed to the public.'”
The Court of Appeals held the inspections of the Ethan Allen were “governmental functions” and that “in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation.” The Court held that while “[t]he statutory scheme at issue here does require inspectors to issue a certificate of inspection indicating that the vessel is safe and, specifically, certifying the number of passengers the vessel can safely transport…these statutory obligations do not create a special duty of care owed by the State to particular passengers.” Further, the court found that “recognizing a private right of action would be incompatible with the legislative design. The Navigation Law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators.” The court found that when the state leglislature amended the Navigation Law in response to the Ethan Allen tragedy, “it imposed additional safety standards and enhanced certain penalties, but still did not provide for a private right of action.” Thus, the court wrote, “[u]nder these circumstances, we can infer that the Legislature has determined that these penalties are the best way to enforce violations of the Navigation Law and that the failure to establish a private right of action against the State was deliberate.”
The court concluded: “Although the law is clear, the upshot is that, regardless of any negligence on the part of the State, the victims of this disastrous wreck are essentially left without an adequate remedy. The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance (2011 NY Assembly Bill A6699). We note that such a requirement — had it existed — might have been able to provide a modicum of relief here.”