Published: February 6, 2017
By: Frederick B. Goldsmith
In Harley Marine Services, Inc. v. U.S. Department of Labor, 2017 WL 370843 (11th Cir. Jan. 26. 2017), the Court ruled the justification Harley Marine gave for firing tug captain Joseph E. Dady was pretextual, that Harley Marine fired Dady for reporting unsafe activities which violated federal law or regulation, and that Harley knew about Dady’s reports when it fired him. The violations Dady reported related to inadequate crewing, inadequate lookouts, sewage runoff, and steering failure.
Published: January 9, 2017
By: Frederick B. Goldsmith
In Seemann v. Coastal Environmental Group, Inc., 2016 WL 7015728 (E.D.N.Y. Nov. 29, 2016), Johnny Seemann, a crewman aboard a self-propelled barge named the “Army I,” claimed he hurt his back and shoulder when he slipped and fell on a patch of ice and/or snow on the deck of the barge. Among other claims, Seemann alleged the company which owned the barge but had chartered it out was nevertheless liable for the conditions aboard the barge which caused his injuries. Seemann claimed the deck was not properly de-iced, lacked a non-skid surface, and his requests for salt or de-icing materials had gone unfulfilled.
The Court denied the barge owner’s motion to dismiss Seemann’s unseaworthiness claim, writing:
“The Second Circuit [Court of Appeals] has held that the presence of ice on a ship’s deck may present a condition of unseaworthiness. In Oxley v. City of N.Y., 923 F.2d 22 (2d Cir. 1991), the court held that a district court’s granting of summary judgment for a defendant owner was improper where a third party had slipped on ice that had accumulated on the deck and fell on the plaintiff, causing injuries to the plaintiff. Id. at 24–26. The court stated: ‘It seems to us that [the plaintiff’s] claim of unseaworthiness also must be resolved by a jury. To prevail on this claim, [the plaintiff] need only prove that the [vessel] was insufficiently or defectively equipped, and that his injuries resulted from the unseaworthy condition of the vessel.’ Id. at 26 (citing Waldron v. Moore–McCormack Lines, Inc., 386 U.S. 724, 726, 87 S.Ct. 1410, 1412, 18 L.Ed.2d 482 (1967); Poignant v. United States, 225 F.2d 595, 596 (2d Cir. 1955)), The Oxley court specifically referred to evidence in the record that showed that the vessel was not adequately furnished with sand and that the deck heating system was inadequate. Id.”
The Court cited other decisions holding that ice or a slippery substance on deck may render a vessel unseaworthy, including conditions such as wet and melted sugar; steps which are painted and maintained so as to be excessively slippery, especially when wet; where design of the vessel may have contributed to the accumulation of ice on deck; and degreaser solvent which is left on deck and the area not cordoned-off nor warning signs posted.
The Court noted the law in this realm is essentially this: “a seaman is not absolutely entitled to a deck that is not slippery. He is absolutely entitled to a deck that is not unreasonably slippery.”
Published: May 23, 2016
By: Frederick B. Goldsmith
In Bordas v. Marquette Transp. Co. Gulf-Inland LLC, 2016 WL 2866266 (S.D. Tex. Apr. 26, 2016), report and recommendation adopted, 2016 WL 2858905 (S.D. Tex. May 16, 2016), U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas agreed with U.S. Magistrate Judge Jason B. Libby that Marquette Transportation Company Gulf–Inland, L.L.C. deckhand John Bordas’ case against Marquette, his employer and the operator of his towboat, and Ingram Barge Company, the owner of the barge upon which he was injured, should be tried, and thus denied both defendants’ pretrial motions for summary judgment. Due to his injuries, Bordas had to undergo three back surgeries, including a lumbar fusion. He was working as a first mate for Marquette aboard its towboat, the M/V ST. JOSEPH. Bordas claimed he injured his back while aboard Ingram’s barge, in the process of securing a second barge into tow. He alleged that as he tried to singlehandedly move the swivel winch on the Ingram barge into position, it became caught or stuck and caused his injury.
The Court described how the defendants tried to lay all blame for the injury on Bordas himself:
“Here, Marquette moves for summary judgment, arguing it cannot be held liable for Plaintiff’s injury because the sole cause of Plaintiff’s injuries ‘was wholly unexpected, undetectable, and was not caused or contributed to by any of Marquette’s acts or omissions.’ Marquette also argues Plaintiff ‘was the only person in a position to judge whether the winch was functioning and how much force he could safely apply.’ In making these arguments, Marquette relies solely on Plaintiff’s testimony that there was adequate crew to perform the operation, Plaintiff inspected the barge beforehand and all equipment appeared normal, nothing indicated the subject winch was defective, and he injured himself when he attempted to move the winch and it did not move or swivel as designed.”
Captain Phillip Hogan, the main captain of the M/V ST. JOSEPH, however, testified at deposition about “the status of swivel winches in the industry, their known hazards, and the condition of the winch in question.” The Court found Captain Hogan’s testimony sufficient to establish a material issue of fact for trial “as to whether Marquette violated its duty to provide Bordas with a safe place to work through its failure to inspect the Ingram barge and its winches.” The Court wrote, “an employer has a duty to inspect third party ships to which it sends its employee to work upon….If, by reasonable inspection, Marquette could have discovered the improperly functioning winch, then Marquette can be charged with notice of that condition.”
In denying Ingram–the barge owner’s–motion for summary judgement, the Court again relied on Captain Hogan’s testimony, writing:
“Further, Captain Hogan’s testimony establishes a deck hand from the towing vessel is at some point going to be on a towed barge to make and break tow and the towed barge’s winches are used to make and break tow. A defective or non-functioning winch could easily cause harm to the deckhand of the towing vessel. Captain Hogan’s testimony provides some evidence that the very nature of swivel winches causes hazards that are not present with stationary winches and the industry is moving away from swivel winches due to their hazards. Plaintiff has produced evidence that creates an issue of material fact–whether Ingram knew or should have known the swivel winch on its barge was not working properly and advised Marquette.
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.
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.