Published: January 18, 2013
By: Frederick B. Goldsmith
Whether a structure is a “vessel” under maritime law has significant consequences, including, for example, whether those aboard it may be considered “seamen” under the Jones Act, whether it is subject to regulation by the U.S. Coast Guard, or whether those furnishing “necessaries” to it are entitled to assert a maritime lien against it when those necessaries are not paid for. The last consequence was at issue in Lozman v. City of Riviera Beach, 2013 U.S. LEXIS 907 (U.S. Jan. 15, 2013), decided earlier this week.
In 2002, Fane Lozman bought the 60-foot by 12-foot floating home pictured here. It was constructed of plywood and had French doors on three sides. Inside, it had a sitting room, bedroom, closet, bathroom, kitchen, and a stairway leading to a second level with office space. Under the main floor, an empty bilge space kept the structure afloat. After be bought it, Lozman had the house towed about 200 miles to North Bay Village, Florida. He moored it there and then twice more had it towed between nearby marinas. Four years later, Lozman had the structure towed 70 miles to a marina owned by the city of Riviera Beach, Florida. There he docked it. Lozman and the city had disagreements, the city tried to evict him from the marina, and then the city sued the floating home in federal court “in rem,” invoking the federal district court’s admiralty jurisdiction, seeking to assert against it a maritime lien for dockage fees and damages for trespass.
The Federal Maritime Lien Act, 46 U.S.C. § 31342, entitled “Establishing maritime liens,” states that “a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner…has a maritime lien on the vessel” and “may bring a civil action in rem to enforce the lien…” The federal jurisdictional statute, 28 U.S.C. § 1333(1), entitled “Admiralty, maritime and prize cases,” provides that “[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of…[a]ny civil case of admiralty or maritime jurisdiction….”
Lozman asked the federal trial court to dismiss the city’s lawsuit because, he argued, his floating home was not a “vessel,” and thus the court lacked admiralty jurisdiction, or power to hear the city’s case. Both the trial court and the federal appeals court sitting over it, the Eleventh Circuit Court of Appeals, sided with the city, finding the floating home was a “vessel” under admiralty law and thus that the trial court did have power to hear the city’s case. The Supreme Court, however, disagreed, finding the two lower courts had erred by interpreting the statutory definition of a “vessel” too broadly. Its 7-2 opinion, authored by Justice Breyer, focused on the phrase, “capable of being used…as a means of transportation on water,” in the federal statutory definition of a vessel appearing in 1 U.S.C. § 3. This provision, entitled “‘Vessel’ as including all means of water transportation,” states: “The word “vessel” includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”
The Supreme Court held, “in our view a structure does not fall within the scope of this statutory phrase unless a reasonable observer, looking to the home’s physical characteristics and activities, would consider it designed to a practical degree for carrying people or things over water.” The Court also found that “nothing about Lozman’s home suggests that it was designed to any practical degree to transport persons or things over water. It had no rudder or other steering mechanism….Its hull was unraked…and it had a rectangular bottom 10 inches below the water….It had no special capacity to generate or store electricity but could obtain that utility only through ongoing connections with the land….Its small rooms looked like ordinary nonmaritime living quarters. And those inside those rooms looked out upon the world, not through watertight portholes, but through French doors or ordinary windows…..The home has no other feature that might suggest a design to transport over water anything other than its own furnishings and related personal effects. In a word, we can find nothing about the home that could lead a reasonable observer to consider it designed to a practical degree for ‘transportation on water.'”
The Court concluded:
“We are willing to assume for argument’s sake that sometimes it is possible actually to use for water transportation a structure that is in no practical way designed for that purpose….But even so, the City cannot show the actual use for which it argues. Lozman’s floating home moved only under tow. Before its arrest, it moved significant distances only twice in seven years. And when it moved, it carried, not passengers or cargo, but at the very most (giving the benefit of any factual ambiguity to the City) only its own furnishings, its owner’s personal effects, and personnel present to assure the home’s safety….This is far too little actual ‘use’ to bring the floating home within the terms of the [statutory definition of a “vessel”].
Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise liners and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways. If you have questions about your or your family’s legal rights under maritime, or admiralty, law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or email@example.com. Our website is www.golawllc.com.
Published: January 11, 2013
By: Frederick B. Goldsmith
In Harrington v. Atlantic Sounding Co., 2013 U.S. Dist. LEXIS 2988 (E.D.N.Y. Jan. 7, 2013), Brooklyn-based U.S. District Judge Nina Gershon found Atlantic Sounding Co., Inc. and Weeks Marine, Inc. negligent under the Jones Act and the tug M/V CANDACE unseaworthy under the general maritime law. She found no contributory negligence. She 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 accident occurred on April 10, 2005, while the CANDACE was offshore Panama City, Florida, and its crew was moving a submerged pipeline. Before the crew could move the pipeline, though, it had to lift the anchors attached to the ends of the pipeline, a process called “anchor pulling” or “line pulling.” The court discussed how, to “lift the anchor, a tugboat is required to position itself near a buoy, floating on the surface of the water, which is connected by a pennant wire to the anchor on the floor of the ocean.”
Judge Gershon was persuaded by Harrington’s maritime expert, Mitchell Stoller, who testified that the tug should have been positioned to minimize vessel movement during the operation, which movement could cause the crewmen working on the deck “to get jerked or lose their balance or [get] hurt.” The court described how the accident occurred, as follows:
“As plaintiff and [another crewman] began the process of retrieving and lifting the line anchor, plaintiff was tasked with using the boat hook to capture the pennant wire, while [the other crewman] held the winch cable and hook. [The tug’s First Mate] had maneuvered the boat so that it was abeam to the sea, and therefore the boat was rolling back and forth. The rolling, combined with the wet stainless steel deck and the open stern, left plaintiff standing in an awkward position. After plaintiff captured the pennant wire and pulled the buoy toward the boat, he was crouched in a wide stance, in order to maintain his footing while leaning forward to retrieve the pennant wire’s eyelet. After retrieving the pennant wire, while attempting to connect it to the trip hook, the boat moved out of position, causing the pennant wire to go taut, which twisted plaintiff’s back causing the injury in question. Nevertheless, because there was slack in the winch cable, plaintiff was able to make the connection with the trip hook and successfully complete the task.”
Judge Gershon found the defendants negligent because the First Mate failed to ensure Harrington was in a position to perform the task safely and failed to maintain the tug in a proper position. The judge found the M/V CANDACE unseaworthy because the entire crew “had very limited experience pulling line anchors through floating buoys on a tug with an open stern,” and that the First Mate, who was at the wheel, “had none.” Further, the crew was “working on a brand new vessel unlike any that defendants had previously launched and which was designed for a task different from that in which the three were engaged.” Also, “defendants provided no training, no assessment of the risks, and provided no instruction on how the task might be performed safely or how plaintiff might position himself while attempting to pull an anchor without a stern on which to brace himself. Finally, and most importantly, defendants failed to train [the First Mate] on how best to position, and keep in position, the tug while plaintiff was pulling the anchors.”
A neurosurgeon diagnosed Harrington with a herniated lumbar disc and right foot drop, that was a result of a severely compressed nerve in his lower back. Harrington underwent two surgeries: An L4-L5 diskectomy, followed by an L4-L5 fusion. The fusion involved removal of the spinal disc and implantation of a carbon-fiber cage, fastened with screws to the bone above and below the disc space.
Judge Gershon determined Harrington’s loss of enjoyment of life was significant. She found he “can no longer do any of the activities that he did prior to the injury, including fishing, maintenance of his home, walking on the beach, scuba diving, or riding a bike. In addition, because of his limitations regarding sitting and walking, plaintiff is substantially confined to his home and has gained a significant amount of weight. Plaintiff attempted to take computer classes, so that he would be able to work a computer, but was unable to take the class because he could not sit for the required period of time.”
Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways. If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com.
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.
Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways. If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529, 412-281-4340, or email@example.com. Our website is www.golawllc.com.
Published: November 15, 2012
By: Frederick B. Goldsmith
Welcome to Towboatlaw, a blog focused on admiralty & maritime law as it is applied by judges and lawyers on the rivers and other inland waterways of the United States. My name is Fred Goldsmith. I am a lawyer who focuses his practice on admiralty and maritime law. I, along with my partner, Rich Ogrodowski, am the co-founder of Goldsmith & Ogrodowski, LLC (https://www.golawllc.com), a law firm based in Pittsburgh, Pennsylvania, which is dedicated to representing workers, or families of workers, who have been seriously injured or killed working aboard towboats and barges as deckhands, pilots, captains, engineers, mates, and cooks. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.
Through this blog I hope to highlight legal and other issues that may interest the men and women, and their families, who work in one of the most important, yet dangerous, occupations in this country. Towboats push barges on the inland waterways, or “brown waters,” of the United States, transporting products which are critical to the American economy, such as: coal for power plants and steel mills; oil, gasoline, and diesel to power and lubricate cars, trucks, and machinery; sand, gravel, and other aggregates which are used to pave our streets and highways, build our homes, offices, and factories; steel, aluminum, and scrap metals which are the building blocks of automobiles, refrigerators, freezers, and the feedstock for steel mills; and corn and wheat for our domestic food industries and for export.
The basic technology of the river industry, as important as it is, however, has not really changed in over 100 years. Towboats (sometimes also called “pushboats”), historically powered by steam-driven engines, yet now diesel-powered, still, as they were many decades ago, are wired to (or “faced up” to) and push barges, formerly made of wood, now made of steel. This industry still requires men and women to be away from home and family for days and weeks at at time. It still demands these same men and women work around the clock, every single day of the year, in the heat and humidity of a Louisiana summer and the numbing cold of a western Pennsylvania winter. They must work in ultra-hazardous locations, amidst tremendous forces.
The most unfortunate part of the towboat and barge industry, however, is when companies do not operate their vessels safely. When companies are unsafe, when they fail to have a corporate culture focused on safety, from the chairman on down, it is these men and women, who serve as deckhands, engineers, captains, pilots, mates, and cooks, who can be seriously injured or killed. I have been involved in maritime law for over two decades. I have seen cases involving maritime workers who have suffered, for instance, electrocutions, amputations, and serious back injuries requiring the surgical fusing together of vertebrae and the surgical implantation of titanium rods and screws.
In my law practice, I endeavor to stay abreast of the changing landscape of the law, including state and federal statutes, regulations, and judicial decisions, which applies to the cases I used to defend, but now prosecute, when these hardworking men and women are injured or killed. Through this blog, I intend to share with you some of these legal developments. I hope you find the blog interesting and enlightening.
If you have questions you’d like to ask our lawyers about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com.