Published: March 10, 2017
By: Frederick B. Goldsmith
In Tabingo v. American Triumph LLC, No. 92913-1 (Wa. March 9, 2017) (en banc), the Washington (state) Supreme Court held, as a matter of law, the issue of the recoverability of punitive damages in a Jones Act seaman’s general maritime law unseaworthiness claim is governed by the U.S. Supreme Court’s analysis in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009). The Washington Supreme Court, frontally disagreeing with the oft-cited U.S. Court of Appeals for the Fifth Circuit’s en banc decision in McBride v. Estis Well Service, LLC, 768 F.3d 382 (5th Cir. 2014), which held the issue of the recoverability of punitive damages in a GML unseaworthiness claim is controlled by the U.S. Supreme Court’s earlier decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), wrote:
“It followed Miles‘s reasoning, noting that because the Jones Act limits recovery of punitive damages for actions brought under it, the same result must occur when a Jones Act claim and general maritime claim are joined in the same action. McBride, 768 F.3d at 388-89. However, as discussed above, this rationale misinterprets both Miles and its interaction with Townsend. Miles is limited to tort remedies grounded in statute. Unseaworthiness is not such a remedy. Congress has not directly addressed the damages available for an unseaworthiness claim. Because of this, following Townsend, punitive damages for unseaworthiness have not been curtailed. Absent an indication that a general maritime cause of action has been removed from the general maritime rule, common law remedies are still available. Therefore, we apply Townsend‘s rationale and find that punitive damages are available for unseaworthiness claims.”
The facts of the underlying serious injury, as alleged by the plaintiff, Allan Tabingo, as summarized by the Court, are as follows:
“In February 2015, Tabingo was tasked with moving the fish below decks. He was on his knees near the hatch’s hinge, gathering the last remaining fish, when another deckhand started closing the hatch. Realizing how close Tabingo’ s hands were to the hatch, the deckhand attempted to correct his mistake. However, the hatch’s control handle was broken and the deckhand could not stop the hatch. The hydraulic hatch closed on Tabingo’ s hand, resulting in the amputation of two fingers. Tabingo alleges that American Seafoods knew about the broken handle for two years before the incident but had failed to repair it.”
Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat and barge crewmembers–and their families, when a crewmember has been seriously injured or killed.
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, 412-281-4340, or email@example.com. We invite you to learn more about us on our website, www.golawllc.com.
Published: December 28, 2015
By: Frederick B. Goldsmith
In Collins v. A.B.C. Marine Towing, L.L.C. and Board of Commissioners of the Port of New Orleans, 2015 WL 9257862 (E.D. La. Dec. 18, 2015), a Louisiana federal court reconsidered its prior decision and denied the Board of Commissioners of the Port of New Orleans’ motion to dismiss punitive damages claims against it. The case grew out of the accident which occurred when a tug, operated by ABC Marine, towing a deck barge owned by Boh Bros. Construction Co., was transiting the Inner Harbor Navigation Canal in Orleans Parish, Louisiana. Aboard the barge was a large crane. Around midnight on August 13, 2014, the mast of the crane struck the Florida Avenue lift bridge, which had not been raised to its highest position. The crane boom then fell atop the tug’s pilothouse, killing tug captain, Michael Collins, and seriously damaging the crane barge.While the Bridge’s Operator Manual required the bridge to be opened to its fullest extent for each opening, the Court found “several bridge tenders testified that they did not review any operating or policy manuals as part of their bridge tender training.”
The lift bridge also suffered from mechanical problems before the accident, leading bridge tenders to deviate from the Operator’s Manual and not fully open the bridge for each opening. Instead, the bridge tenders were trained to only raise the bridge several feet above the height requested by each passing vessel. On the night of the accident, the bridge tender claimed she raised the bridge four feet higher than that requested by Captain Collins. But this was not high enough.
Why did the Court change its position? Boh Bros., owner of the crane barge, showed the Court video which revealed the Board’s bridge tenders, even after this fatal accident, continued to fail to raise the bridge to its fullest extent. The Court also referenced a federal law, specifically a Coast Guard bridge operation regulation found at 33 C.F.R. § 117.5, which also required the Board to “fully open” the bridge every time (“[e]xcept as otherwise authorized or required by this part, drawbridges must open promptly and fully for the passage of vessels when a request or signal to open is given in accordance with this subpart.”).
The Court concluded:
“Therefore, notwithstanding the fatal tragedy that is the basis of this case, the video footage demonstrates that the Board continues to disregard the mandate of 33 C.F.R. § 117.5. The Court appreciates the Board’s argument that this video footage is inapposite because it was taken on a day when the Bridge was undergoing electrical repairs. However, the Court notes that any conclusions it might draw from this video footage would be based on material facts in dispute. In other words, whether or not this evidence confirms that the Board had in the past and continues to act with reckless conduct and callous disregard for life and property sufficient to justify an award of punitive damages is not an issue that can be determined summarily at this time in view of their arguably continuing practice. Rather, this new evidence, particularly taken together with the genuine issues of material fact discussed in the October 14 Order & Reasons, introduces a new fact issue that must be decided at trial.”
The Court had previously decided that punitive damages were available under the general maritime law in this case, and denied a defense motion to dismiss them as a matter of law.
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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers and their families. 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, 412-281-4340, or firstname.lastname@example.org. Our website is www.golawllc.com. While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider taking cases anywhere on the U.S. inland waterways.