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April 2015

Tug Operator Ordered to Pay Injured Deckhand’s Attorney’s Fees and Punitive Damages for Willful Failure to Pay Maintenance and Cure

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.

Vane Line Bunkering, Inc.'s Tug PATRIOT

Vane Line Bunkering, Inc.’s Tug PATRIOT

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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Survivors of Tug Captain Found Dead and Floating Alongside Allowed to Proceed With Claims Against Tug Owner

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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