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January 2013

Materials Vessel Operator Provides to U.S. Coast Guard to Further Agency’s Marine Casualty Investigation Not Exempt From Discovery by Injured Claimant

Patricia Guest, one of about 4,500 passengers and crew aboard the CARNIVAL SPLENDOR cruise liner in November 2010, allegedly slipped and fell, injuring her shoulder. She claimed in a personal injury lawsuit against Carnival Corporation her accident occurred while the vessel, including its stabilizers, was disabled and adrift following an engine room fire and that the ship “violently lurched,” causing her fall.



The U.S. Coast Guard conducted an investigation into the engine room fire and the failure of the ship’s automatic CO2 fire suppression system to deploy. Guest’s lawyers, as part of her lawsuit’s discovery process, asked Carnival for photographs it had taken, communications between it and the Coast Guard with respect to this investigation, and reports, memoranda, and documents Carnival had submitted to the Coast Guard. In response, Carnival claimed a federal law protected it from having to turn over the materials it had given to the Coast Guard.

The federal statute in question, codified at 46 U.S. Code Section 6308, is entitled “Information barred in legal proceedings.” It states, in pertinent part:

“…no part of a [U.S. Coast Guard] report of a marine casualty investigation…including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceedings, other than an administrative proceeding initiated by the United States” and “[a]ny member or employee of the Coast Guard investigating a marine casualty…shall not be subject to deposition or other discovery, or otherwise testify in such proceedings relevant to a marine casualty investigation, without the permission of the Secretary [of the Department of Homeland Security].”

A Coast Guard regulation, appearing at 46 C.F.R. § 4.07-1(b), states the “investigations of marine casualties and accidents and the determinations made [by this agency] are for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility.”

In Guest v. Carnival Corp., 2012 U.S. Dist. LEXIS 184936 (S.D. Fla. Nov. 7, 2012), a U.S. Magistrate Judge found that when reading Section 6308 together with Section 4.07-1(b), “it is clear that the scope of the statutory protection [of Section 6308] is limited to the Coast Guard’s investigative report, and anything included within that report, in order to avoid having the Coast Guard’s investigative report and its conclusions influence the litigation process.” But, the Court found, Section 6308 did not protect vessel owners like Carnival from having to hand-over to parties like Guest the materials Carnival had provided to the Coast Guard in furtherance of the Coast Guard’s investigation. The Court wrote:

“Ultimately, the issue before this Court is whether or not the material that Defendant produced to the Coast Guard is precluded from discovery pursuant to 46 U.S.C. § 6308(a). Defendant has failed to provide the Court with any compelling support for that proposition, and this Court has been unable to find the same independently. In addition, a review of the applicable case law unequivocally demonstrates that 46 U.S.C. § 6308(a) extends to the specific Coast Guard investigative report and, arguably, any other Coast Guard document produced in the course of its investigation that contains any findings of fact, opinion or conclusions – not, however, a litigant’s own documents. Accordingly, Defendant’s objections are overruled…..Defendant shall produce copies of all documents, photographs and any other materials provided to any governmental agency, classification society or flag state, including but not limited to the U.S. Coast Guard, in connection with the fire; the failure of the fire suppression systems; and the loss of propulsion aboard the vessel. Defendant shall produce the above-described documents within seven (7) days of this Order.”

About two months later, the parties announced to the Court the case had settled.


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U.S. Supreme Court: Floating Home Not Designed to Any Practical Degree for Carrying People or Things on Water not a “Vessel”

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.

Fane Lozman's (now destroyed) floating home

Fane Lozman’s (now destroyed) floating home

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”].


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52 Year-Old Crewman of Offshore Tug Injured During Submerged Pipeline Anchor Pulling Entitled to $1,678,948 in Damages

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.”


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Jury Awards $100,000 in Punitive Damages to Whistleblower Engineer Under Seaman’s Protection Act

Jeffrey Polek, a newly-licensed engineer aboard Grand River Navigation Co., Inc.’s M/V MANISTEE, reported to the U.S. Coast Guard a fracture in the vessel’s side shell, after his reports of the fracture to company personnel were shrugged off.  A Michigan federal court jury decided Grand River “unlawfully terminated Plaintiff’s employment because of his good faith report of the hull fracture to the Coast Guard, and further found that Defendant’s retaliatory conduct toward Plaintiff merited an award of punitive damages to punish Defendant for its wrongful conduct.”  In Polek v. Grand River Navigation, 872 F. Supp. 2d 582 (E.D. Mich. 2012), the jury awarded Polek $1,000 in statutory damages, $33,500 in compensatory damages, and another $100,000 in punitive damages.  In awarding punitive damages, the jury found, and the federal district court agreed, the vessel owner’s conduct was unreasonable and reprehensible.



At trial, Grand River downplayed the severity of the hull fracture.  The Court found, however:

“…there was evidence that the fracture was below the waterline when the vessel was in a loaded configuration and was the type of damage about which the Coast Guard expected to be notified.  Both Captain Brezinski and first mate George Bouhall testified at trial that they were admonished by the Coast Guard for not reporting the hull fracture.  While Plaintiff acknowledges that Defendant is correct in observing that it was not ‘cited’ by the Coast Guard, Plaintiff notes that the Coast Guard still issued a Form CG 835 which is a directive to effectuate repairs in a specified period of time—here, immediately upon the vessel’s return to Cleveland.”

The Court also found that Polek repeatedly expressed his “concern not only for his own safety, but the safety of his fellow shipmates,” and that Grand River “disregarded his legitimate concerns.”

Polek presented evidence at trial showing that Grand River’s conduct in concealing facts from the Coast Guard was not an isolated occurrence.  In response to Polek’s expression of “legitimate and bonafide safety concerns,” Grand River personnel labeled Polek a “potential liability to the company,” called his concerns the “non-sensical ravings of a junior engineer,” and branded him a “weenie.”

In addition to assessing punitive damages, to emphasize their feelings about Grand River’s conduct, the jury returned a note along with their verdict which stated:

“On [b]ehalf of the jury we wish to extend one additional comment to Grand River Navigation Co., Inc. After extensive discussion regarding the content of the case we collectively recommend that the company invest the resources necessary to improve the management skills of their organization’s structure.”

*   *   *

The Seaman’s Protection Act, enacted by the U.S. Congress in 2010, codified at 46 U.S. Code § 2114, formally entitled, “Protection of seamen against discrimination,” provides as follows:

(1) A person may not discharge or in any manner discriminate against a seaman because—
(A) the seaman in good faith has reported or is about to report to the Coast Guard or other appropriate Federal agency or department that the seaman believes that a violation of a maritime safety law or regulation prescribed under that law or regulation has occurred;
(B) the seaman has refused to perform duties ordered by the seaman’s employer because the seaman has a reasonable apprehension or expectation that performing such duties would result in serious injury to the seaman, other seamen, or the public;
(C) the seaman testified in a proceeding brought to enforce a maritime safety law or regulation prescribed under that law;
(D) the seaman notified, or attempted to notify, the vessel owner or the Secretary of a work-related personal injury or work-related illness of a seaman;
(E) the seaman cooperated with a safety investigation by the Secretary or the National Transportation Safety Board;
(F) the seaman furnished information to the Secretary, the National Transportation Safety Board, or any other public official as to the facts relating to any marine casualty resulting in injury or death to an individual or damage to property occurring in connection with vessel transportation; or
(G) the seaman accurately reported hours of duty under this part.
(2) The circumstances causing a seaman’s apprehension of serious injury under paragraph (1)(B) must be of such a nature that a reasonable person, under similar circumstances, would conclude that there is a real danger of an injury or serious impairment of health resulting from the performance of duties as ordered by the seaman’s employer.
(3) To qualify for protection against the seaman’s employer under paragraph (1)(B), the employee must have sought from the employer, and been unable to obtain, correction of the unsafe condition.
(b) A seaman alleging discharge or discrimination in violation of subsection (a) of this section, or another person at the seaman’s request, may file a complaint with respect to such allegation in the same manner as a complaint may be filed under subsection (b) of section 31105 of title 49. Such complaint shall be subject to the procedures, requirements, and rights described in that section, including with respect to the right to file an objection, the right of a person to file for a petition for review under subsection (c) of that section, and the requirement to bring a civil action under subsection (d) of that section.


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