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Towboatlaw – Towboat & Barge Lawyer, Admiralty & Maritime Law on the Rivers

  • Tug Operator’s Lack of Training and Procedures Lead to Deckhand’s Crushing Death in Capstan and $1.6 Million Judgment

    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 Tug TURECAMO GIRLS

    The Tug TURECAMO GIRLS

    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.

     

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  • Influential U.S. 5th Circuit Court of Appeals: Jones Act Seaman Can Recover Punitive Damages In General Maritime Law Unseaworthiness Claim

    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.”

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    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.

     

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  • In Vessel Owner’s Limitation of Liability Act Case in Federal Court, Injured Claimant Need Not Stipulate to Owner’s Right to Seek Exoneration

    In two unrelated Vessel Owner’s Limitation of Liability Act (46 U.S.C. § 30501, et. seq.) cases decided the same day, a Wheeling, West Virginia-based federal judge ruled in Complaint of: Bellaire Harbor Service, LLC, 2013 U.S. Dist. LEXIS 117991 (N.D. W. Va. Aug. 20, 2013) and In re Campbell Transportation Co., 2013 U.S. Dist. LEXIS 117992 (N.D. W. Va. Aug. 20, 2013), that the vessel owners were seeking more than the general maritime law entitled them to in attempting to require the injured claimants–both Jones Act seamen–to stipulate, in order to resume their West Virginia state court lawsuits, that the vessel owners were entitled to litigate the issue of exoneration from liability, in addition to the issue of limitation of liability, in federal court.  The Court wrote:

    “If courts required an exoneration stipulation prior to lifting the stay on a case, courts would be ‘enlarg[ing] shipowners’ rights under the Limitation Act and abridg[ing] claimants’ rights under the savings to suitor clause’….This Court agrees with the Fifth Circuit’s explanation and analysis of the issue. Thus, again this Court finds that the claimants need not stipulate to the plaintiffs’ right to litigate the exoneration issue in this Court. The claimants’ stipulation to the plaintiffs’ right to litigate all issues related to the limitation of liability, along with the claimants’ other stipulations, is sufficient for this Court to lift the injunction on the state court action and grant the motion to stay this action.”

    The Court also held in the cases:

    1. The husband and wife claimants’ stipulation that the claims of the injured husband will have irrevocable priority over the claims for damages of the wife transformed the case into the functional  equivalent of a single claimant case, protecting the vessel owner while allowing the claimants to pursue their state court action;
    2. The claimants are not required to agree to limit damages to the value of the vessel and its attending freight, nor are they required to stipulate to the precise amount of the limitation fund, or rather the precise amount of the vessel owners’ interest in the vessel and freight; and
    3. It was improper to determine [at this early stage] whether the claimants’ maintenance and cure claim was subject to the Vessel Owners’ Limitation of Liability Act.

     

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  • Employer Blocked in Attempt to Require Injured Seaman to Litigate Maintenance and Cure Claim in Federal Court

    In Parker Drilling Offshore USA LLC v. Lee, 2013 U.S. Dist. LEXIS 100271 (W.D. La. June 6, 2013), a federal Magistrate Judge recommended that Parker Drilling’s Declaratory Judgment Act suit against its Jones Act seaman employee, Andrew Lee, be dismissed in deference to Lee’s later-filed Texas state court suit against Parker Drilling.  In the federal case, Parker Drilling sought “a judgment declaring (1) that Lee is not entitled to additional maintenance and cure since his back/leg complaints did not manifest in the ‘service of the vessel’ and predate his alleged accident, (2) that Lee is not entitled to maintenance and cure benefits based on the alleged willful concealment of a pre-existing condition and the applicability of McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968), and (3) that Parker acted in good faith toward Lee and its actions have not been ‘arbitrary, capricious or callous.'”

    Rig_50-B

    Parker Drilling’s Rig 50-B, upon which Jones Act seaman Andrew Lee allegedly sustained a lower back injury

    Parker Drilling filed its federal court suit less than three months after Lee’s alleged accident aboard Parker Drilling Rig 50B, which was then operating in Louisiana coastal waters.  Lee claimed he injured his lower back in the accident.  Lee filed his Texas state court suit, which sought damages for his injuries under the Jones Act (for negligence) and under the general maritime law (for unseaworthiness and maintenance and cure), just a few days after Parker Drilling filed its federal suit.

    The federal Magistrate Judge noted that while the federal court had jurisdiction to hear Parker Drilling’s case, it also had discretion under the Declaratory Judgment Act to abstain from exercising jurisdiction over Parker Drilling’s case.  Magistrate Judge Hanna found the questions in controversy between the parties could be better settled in the state court action and that the federal court action did not serve a purpose beyond duplicating the claims of the parties.  Specifically, the Magistrate Judge found:

        • Parker Drilling’s McCorpen defense to Lee’s maintenance and cure claim could be “fully litigated” in Lee’s Texas state court action and that it has long been held that “[w]here a maintenance and cure claim is joined with Jones Act negligence and unseaworthiness claims, the seaman should be allowed to try all of the claims together.”
        • Parker Drilling could have reasonably anticipated Lee’s state court suit given his accident and Parker’s suspension of maintenance and cure payments to him.
        • Even though Lee had not filed his Texas state court suit by the time Parker Drilling filed its federal action, Parker’s federal court suit came early — less than three months after Lee’s accident (“While the plaintiff is not required to wait indefinitely for the defendant employee to act, the Fifth Circuit has cautioned that using a declaratory judgment action to race to res judicata or to change forums is inconsistent with the purposes of the Declaratory Judgment Act.”).The fact Lee had not yet filed his state court suit by the time Parker Drilling filed its federal court suit was not dispositive (“It is a well-settled principle that the real or traditional plaintiff Lee (the party who was allegedly injured) is entitled to choose his forum, and that choice is ‘highly esteemed’…. Lee’s Texas suit was filed two days before he filed the Motion to Dismiss in this court. He chose the Texas state court forum, although he is a resident of Mississippi and worked for Parker in Louisiana. The [Texas state court] forum is nevertheless appropriate, since the record demonstrates that Parker is a Texas-based corporation and venue would be proper in Harris County. To allow this [federal] case to go forward would effectively deny Lee his choice of forum on the general maritime law claim for maintenance and cure.”).
        • While Parker Drilling argued the federal court in the Western District of Louisiana was more convenient for both parties and witnesses, the court found: “The Louisiana federal court forum may be a more convenient venue which would favor maintaining the action in this court. However, in considering and deferring to Lee’s choice of forum and the judicial economy of having all matters in controversy heard by one court, which can occur in the Texas forum, the undersigned finds that [this] factor weighs in favor of dismissal.”

    Magistrate Judge Hanna concluded:

    “…the interests of fairness and judicial efficiency are better served if the declaratory judgment action is dismissed. This finding is consistent and in accord with other cases addressing similar issues in dismissing an employer’s preemptive declaratory judgment action regarding maintenance and cure benefits in a maritime personal injury case ….. The interests of comity, judicial economy and deference to the traditional plaintiff’s choice of forum weigh in favor of allowing the Texas court to adjudicate the entirety of this dispute.”

     

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  • Lead Mate Aboard Towboat Secures $621K Judgment for Shoulder Injury in Ratchet Accident

    Deckhands working with ratchet

    Deckhands working with a ratchet on the line deck of a jumbo hopper barge

    Quincy Allen was employed by American River Transportation Co. (“ARTCO”) as lead mate aboard the ARTCO towboat, the M/V SCARLETT GEM, a fleet boat on the lower Mississippi River. While assisting in the removal of a barge from the tow of an AEP River Operations, LLC towboat near ARTCO’s Kenner Bend Fleet, Allen sustained a serious shoulder injury. The AEP deckhand assisting Allen kicked loose the coupling on the barge by releasing the pelican hook on a ratchet while the line was under strain. Unbeknownst to the two workers, the wire was kinked and, when it was released, it recoiled and caught Allen’s arm, injuring his shoulder. Allen testified he had specifically instructed the AEP deckhand to warn him before kicking loose the pelican hook, should that become necessary, but, the Court found, the AEP deckhand failed to do so.

    Allen’s orthopedic surgeon performed a right shoulder bursectomy, subacromial decompression, distal clavicle resection, and labral debridement. After an attempt to return to work, Allen was required to undergo another surgery to repair a degenerative tear of the proximal biceps with an intact superior labral complex and some fraying of the biceps tendon. The treating surgeon opined that Allen continued to suffer from residual stiffness and pain in his right shoulder and that Allen would be unable to return to heavy-duty work aboard a towboat, that he was permanently restricted to light duty work. Allen settled his claims against his employer, ARTCO, and tried to resume work for fear if he did not he would lose his job, but was physically unable to do so. He then brought suit against AEP.

    Following a nonjury trial, the New Orleans-based federal judge found AEP liable in negligence under the general maritime law due to the actions of its deckhand, Allen not liable to any extent, and that Allen was entitled to pain and suffering damages of $150,000, medical damages of $45,048, and past and future lost earnings damages of $426,866. The case is reported at Allen v. AEP River Operations, LLC, 2013 U.S. Dist. LEXIS 89797 (E.D. La. June 25, 2013).

     

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