Published: June 7, 2019
By: Frederick B. Goldsmith
In a June 7, 2019, notice in the Federal Register the Coast Guard announces a “final rule,” effective July 22, 2019:
“This rule will affect mariners who have served on radar-equipped vessels, in a position that routinely uses radar for 1 year in the previous 5 years for navigation and collision avoidance purposes, and mariners who have taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years. These mariners will no longer be required to complete a Coast Guard-approved or accepted radar refresher or recertification course in order to renew their radar observer endorsements. We are retaining the existing requirements for mariners seeking an original radar observer endorsement and for mariners who do not have 1 year of routine relevant sea service on board radar-equipped vessels in the previous 5 years or have not taught a Coast Guard-approved or accepted radar course at least twice within the past 5 years.” (emphasis supplied)
Your blog editor, who has practiced admiralty law for 28 years and taken and successfully passed a Coast Guard-approved radar endorsement course administered by The River School, is highly concerned about this rule change by the Coast Guard. It dangerously disregards the history of the radar endorsement rule, a rule intended to save lives.
The radar endorsement rule was promulgated in response to the Amtrak Sunset Limited train derailment disaster. On September 22, 1993, at 0245 hours, this passenger train was attempting to transit a railroad bridge over Big Bayou Canot, near Mobile, Alabama. The pilot of the towboat, the M/V MAUVILLA, operated by Warrior & Gulf Navigation, while navigating nearby in fog, did not know where his towboat and tow were on the river system. He thought he was still on the Mobile River and the barges forming his tow had touched up against other barges across the Mobile River.
In reality, his tow had struck the railroad bridge over Big Bayou Canot, with enough force to displace the center span on which the rails were mounted by 38 inches — more than a yard.
Unfortunately, the allision (when a moving vessel strikes a fixed object) of the MAUVILLA’s tow of barges with the railroad bridge was not forceful enough to trigger a track displacement warning to the rapidly-approaching train or train controllers, because the rails only bent, they did not break. So, the electrical circuit comprised by the rails remained intact, and the broken track alarm was never triggered.
Minutes later, the train, traveling at 72 miles per hour, derailed. Forty-two passengers and five crewmembers were killed. Many drowned or died from smoke inhalation. One hundred and three passengers were injured.
The National Transportation Safety Board (NTSB) found in its report (pdf copy) among the “Probable Causes” of the casualty was the MAUVILLA pilot had received no formal training on how to use his towboat’s radar:
“The National Transportation Safety Board determines that the probable causes of Amtrak train 2’s derailment were the displacement of the Big Bayou Canot railroad bridge when it was struck by the MAUVILLA and tow as a result of the MAUVILLA’s pilot becoming lost and disoriented in the dense fog because of (1) the pilot’s lack of radar navigation competency; (2) Warrior & Gulf Navigation Company’s failure to ensure that its pilot was competent to use radar to navigate his tow during periods of reduced visibility; and (3) the U.S. Coast Guard’s failure to establish higher standards for inland towing vessel operator licensing. Contributing to the accident was the lack of a national risk assessment program to determine bridge vulnerability to marine vessel collision.”
In its report, the NTSB recommended the Coast Guard beef-up its radar training requirements:
“In consultation with the inland towing industry, develop radar training course curricula standards for river towboat operations that emphasize navigational use of radar on rivers and inland waters”
“Upgrade licensing standards to require that persons licensed as Operators of Uninspected Towing Vessels hold valid river-inland waters radar observer certification if they stand navigation watch on radar-equipped towing vessels and to require that employers provide more specific evidence of training.”
Why did the Coast Guard relax the radar endorsement rule? It wrote today in its notice in the Federal Register the rule change was Congressionally-mandated by the Coast Guard Authorization Act of 2015, which required the Coast Guard to “harmonize the expiration dates of the mariner’s radar observer endorsement with expiration of the mariner’s MMC [Merchant Mariner Credential].”
But, the Coast Guard also wrote its relaxation of the rule was “[i]n response to [President Trump’s] Executive Order 13771 of January 30, 2017,” entitled “Reducing Regulation and Controlling Regulatory Costs.” This Executive Order arbitrarily directed federal agencies that “for every one new regulation issued, at least two prior regulations be identified for elimination….” So, the Coast Guard “asked the public and each of the Coast Guard’s federal advisory committees for suggestions on Coast Guard regulations, guidance documents, interpretive documents, and collections of information that should be removed or modified to alleviate unnecessary burdens.” (emphasis supplied)
The Coast Guard found requiring licensed mariners to take and pass a radar refresher course every five years “unnecessarily burdensome to mariners who serve in a position that routinely uses radar for navigational and collision avoidance purposes.”
In my view, the fallacy in the Coast Guard’s logic is the pilot of the MAUVILLA would theoretically also have had to “routinely use radar for navigational and collision purposes” in the months or years preceding the Sunset Limited tragedy.
Many professions, include medical, legal, insurance, and law enforcement, require annual or biennial hours of continuing education or recertification in relevant fields to maintain licensure, accreditation, or qualification. That’s not “unnecessarily burdensome,” particularly in a profession where lack of proficiency in equipment operation can result in death.
This is a well-produced National Geographic video on the disaster and its causes: http://www.dailymotion.com/video/x4i17ve
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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed. See https://www.golawllc.com/admiralty-maritime/. We also represent pleasure and excursion boat passengers who have been injured or killed. We represent railroad crewmembers injured on the job and bring claims under the FELA (Federal Employers Liability Act). And we are prepared to represent injured or killed railroad passengers and bystanders, or their families, in the event of a train derailment. See https://www.golawllc.com/railroad-fela/.
If you have questions about this post or your or your family’s legal rights under admiralty and maritime law, or the law relating to railroad crashes, derailments, injuries and death, call or write us for a free consultation at 877-404-6529, 412-281-4340, or email@example.com. We invite you to learn more about our lawyers and our law firm on our website, https://www.golawllc.com.
Published: May 29, 2018
By: Frederick B. Goldsmith
The National Transportation Safety Board recently published online a concise and easy-to-understand 16-page pdf document entitled “Sinking of the US Cargo Vessel El Faro.” The ship sank on October 1, 2015, 36 nautical miles northeast of Acklins and Crooked Islands, Bahamas, and close to the eye of Hurricane Joaquin, which packed average wind speeds of 117 knots (134 miles per hour).
The document, an illustrated brochure, includes the timeline and track of the ship’s final voyage, highlights of key decisions made by the ship’s captain, examples of the disregarding by the captain of timely weather data, the lack of shoreside oversight by the ship’s owner, an explanation of how seawater got inside the ship, and several of the NTSB’s safety recommendations made to try to prevent a re-occurrence.
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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.
We also represent passengers and families when an injury or death occurs aboard or involving recreational or commercial passenger vessels.
If you have questions about this post or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or firstname.lastname@example.org. We invite you to learn more about our lawyers and our law firm on our website, https://www.golawllc.com.
Published: April 24, 2015
By: Frederick B. Goldsmith
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.
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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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings claims for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, such as deckhands, mates, cooks, engineers, pilots, and captains. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529 (toll-free), 412-281-4340, or email@example.com. Our website is www.golawllc.com. We practice primarily in PA, WV, and OH, but also all over the inland waterways.
Published: April 10, 2015
By: Frederick B. Goldsmith
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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Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, and passengers aboard cruise and excursion boats and ships, in personal injury and wrongful death claims. If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the Vessel Owners’ Limitation of Liability Act, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340. Our website is https://www.golawllc.com. Our e-mail address is firstname.lastname@example.org. We practice primarily in PA, WV, and OH, but also all over the inland waterways.
Published: July 4, 2014
By: Frederick B. Goldsmith
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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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships. 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 Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 (toll-free), 412-281-4340, or via e-mail at email@example.com. Our website is www.golawllc.com. We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.