Published: January 4, 2013
By: Frederick B. Goldsmith
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.
Published: December 7, 2012
By: Frederick B. Goldsmith
In Laborde v. SGS North America, Inc., 2012 U.S. Dist. LEXIS 170544 (M.D. La. Nov. 29, 2012), Brent Laborde sued his employer, SGS, as a seaman under the Jones Act, 46 U.S.C.A. § 30104, for personal injuries he sustained while moving a heavy coil of rope aboard the M/V Helen G, which was also owned, operated, and maintained by SGS. He claimed SGS was negligent and the M/V Helen G was unseaworthy. SGS filed a motion for partial summary judgment, asking the federal trial court to dismiss Laborde’s unseaworthiness claim. In his opinion denying SGS’s motion, Judge James J. Brady of the U.S. District Court for the Middle District of Louisiana reviewed the law on the vessel owner’s warranty of seaworthiness which it owes its crewmembers, and what can constitute an “unseaworthy” condition aboard a vessel.
Citing the U.S. Supreme Court’s decision in Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, (1960), the Baton Rouge-based court discussed how a shipowner’s warranty of seaworthiness encompasses a duty to “furnish a vessel and appurtenances reasonably fit for their intended use.” Other courts have explained this duty as requiring the vessel owner to “provide a vessel, including her equipment and crew, which is reasonably fit and safe for the purpose for which it is to be used.” Boudreaux v. United States, 280 F.3d 461, 468 (5th Cir. 2002). Unseaworthiness can also be “manifested by an unsafe method of work, such as the failure by a shipowner to provide adequate equipment for the performance of an assigned task.” Johnson v. Offshore Express, Inc., 845 F.2d 1347, 1354-1355 (5th Cir. 1988).
In Usner v. Luckenbach, 400 U.S. 494, 498 (1971), the Supreme Court held that “unseaworthiness is a condition, and how that condition came into being – whether by negligence or otherwise – is quite irrelevant to the owner’s liability for personal injuries resulting from it.”
To win an unseaworthiness claim, the seaman plaintiff must also establish causation, that is, prove that the “unseaworthy condition played a substantial part in bringing about or actually causing the injury and that the injury was either a direct result or a reasonably probable consequence of the unseaworthiness.” Johnson v. Offshore Express, Inc., 845 F.2d at 1354.
Under the general maritime law, there is a difference between “transitory unseaworthiness,” which subjects a vessel owner to liability, and “instant unseaworthiness,” caused by a single, unforeseeable act of operational negligence, which does not. A transitory unseaworthy condition, like a permanent defect, will render a ship unseaworthy.
Published: December 3, 2012
By: Frederick B. Goldsmith
The New York Court of Appeals on November 29, 2012, resolved the issue of whether the State of New York “can be held liable to individuals who were injured and the personal representatives of those who lost their lives due to the tragic capsizing of a public vessel — the Ethan Allen.” The court, in Metz v. State of New York, held “that because the State owes no special duty to these claimants, the claims that the State’s inspectors failed to certify safe passenger capacity on the vessel must be dismissed.”
Forty-seven mostly elderly passengers were aboard the tour boat “Ethan Allen” on October 2, 2005, for what was to be a one-hour cruise to view foliage along Lake George. The boat suddenly capsized and sank in 70-feet deep waters. Twenty passengers died. Several others were injured. As a “public vessel,” the Ethan Allen was subject to yearly state inspections, following which an inspector appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation would issue a certificate indicating the vessel’s maximum passenger capacity. When the Ethan Allen sank, it was carrying 47 passengers and one crewmember, thus within the 48-passenger limit set forth in its state-issued certificate of inspection.
New York’s “Navigation Law” requires a certificate of inspection to operate a a public vessel upon the state’s waters. A state inspector must carefully examine the vessel and its equipment and only if satisfied that the vessel is in all respects safe and conforms to the requirements of the Navigation Law execute the certificate of inspection. The state inspector is also required to set forth in the certificate of inspection the number of passengers the vessel can safely transport and the number of crewmembers necessary to safely operate the vessel.
The Ethan Allen was built in 1964 and first inspected by the U.S. Coast Guard. The vessel’s last U.S. Coast Guard-issued certificate of inspection stated its maximum passenger capacity was 48 persons and that two crewmembers were required to be aboard. Testimony in the case indicated that when New York took over issuing the Ethan Allen’s certificate of inspection in 1979, until the date of the accident, the boat’s passenger capacity remained at 48. The boat’s passenger capacity remained unchanged even though its owners modified it in 1989 by replacing its canvas canopy with a heavier one made of wood. Several state inspectors testified they did not independently verify the vessel’s passenger capacity by conducting a stability test, but rather relied on the number certified from the previous year. One inspector agreed the passenger capacity figure was simply “rubber stamped,” based on the previously-issued capacity figure from the prior certificate of inspection. Another inspector referred to the Coast Guard COI’s passenger capacity number as “gospel.”
The New York Court of Appeals agreed with the plaintiffs that “[t]he 48-passenger limit certified by the State inspectors was, however, much higher than the level at which the vessel could safely be operated. Notably, since this accident, the State has increased the average weight per passenger from 140 pounds — an approximation apparently adopted in the 1950s and utilized by the Coast Guard — to 174 pounds.” The plaintiffs sued the State of New York, claiming it was “negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the vessel had been significantly modified.” In response, the state raised several affirmative defenses, including governmental immunity, which was the primary focus of the appeal to the New York Court of Appeals.
The Court of Appeals wrote that its prior decisions had established that “claimants must first establish the existence of a special duty owed to them by the State before it becomes necessary to address whether the State can rely upon the defense of governmental immunity,” and that “it is well settled that the State ‘is not liable for the negligent performance of a governmental function unless there existed ‘a special duty to the injured person, in contrast to a general duty owed to the public.'”
The Court of Appeals held the inspections of the Ethan Allen were “governmental functions” and that “in the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation.” The Court held that while “[t]he statutory scheme at issue here does require inspectors to issue a certificate of inspection indicating that the vessel is safe and, specifically, certifying the number of passengers the vessel can safely transport…these statutory obligations do not create a special duty of care owed by the State to particular passengers.” Further, the court found that “recognizing a private right of action would be incompatible with the legislative design. The Navigation Law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators.” The court found that when the state leglislature amended the Navigation Law in response to the Ethan Allen tragedy, “it imposed additional safety standards and enhanced certain penalties, but still did not provide for a private right of action.” Thus, the court wrote, “[u]nder these circumstances, we can infer that the Legislature has determined that these penalties are the best way to enforce violations of the Navigation Law and that the failure to establish a private right of action against the State was deliberate.”
The court concluded: “Although the law is clear, the upshot is that, regardless of any negligence on the part of the State, the victims of this disastrous wreck are essentially left without an adequate remedy. The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance (2011 NY Assembly Bill A6699). We note that such a requirement — had it existed — might have been able to provide a modicum of relief here.”
Published: November 27, 2012
By: Frederick B. Goldsmith
In recent years, the oil and gas industry has designed, built, and installed in the Gulf of Mexico hugely expensive and technologically complex drilling and production structures capable of extracting hydrocarbons from beneath the seabed in the Gulf’s deep waters. In shallower waters, the industry can use jack-up drilling rigs, which, since they have hulls and other vessel-like features, and are comparatively easy to relocate from well to well, courts have repeatedly held are “vessels in navigation” for purposes of admiralty and maritime law. If a crewman of a “vessel in navigation” is injured, then he or she is generally entitled to bring personal injury claims as a “seaman” under the federal Jones Act (for negligence) and under the general maritime law (or federal common law) for unseaworthiness and maintenance and cure. But, if the structure is not a “vessel in navigation,” then the worker injured while working on it cannot claim to be a crewman of a “vessel in navigation” and entitled to the remedies reserved to seamen.
Recently, a federal district court in Louisiana held that a massive “floating production drilling quarters” called the Thunder Horse, operated by BP, is not a “vessel in navigation,” and, thus, that the claimant, a worker aboard the structure, could not be a seaman as to that structure, and thus that he was not entitled to pursue a seaman’s personal injury claims, noted above. In Washington v. BP America, Inc., 2012 U.S. Dist. LEXIS 164371 (W.D. La. Nov. 16, 2012), the court focused on how the Thunder Horse was, with reference to the U.S. Supreme Court’s 2005 decision in Stewart v. Dutra Construction Co., not “practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment.” In Stewart, the Supreme Court concluded, “[t]he question remains in all cases whether the watercraft’s use as a means of transportation on water is a practical possibility or merely a theoretical one.” In Washington v. BP America, Inc., the court decided the Thunder Horse, like another deep water drilling and production structure at work in the Gulf of Mexico, a “spar” called Red Hawk, is a “work platform,” not a “vessel.”
The key aspects of the Thunder Horse which render it a “work platform,” and not a “vessel,” the court found, are:
Having found the Thunder Horse is not a “vessel,” the Louisiana federal court also concluded the plaintiff in the case, Terrance Washington, who was working as a cook, and who claimed he was injured after he slipped and fell on a walkway on the structure, could not be a seaman under the Jones Act as to the Thunder Horse, and therefore he was not entitled to pursue a seaman’s personal injury claims against BP.
Published: November 16, 2012
By: Frederick B. Goldsmith
The Deepwater Horizon semi-submersible drilling rig was owned and operated by Transocean and drilling for British Petroleum in the Macondo Prospect (situated in Mississippi Canyon Block 252), about 50 miles offshore Louisiana on April 20, 2010. When the rig exploded, 11 men were killed, 17 were injured, 99 survived. The Deepwater Horizon burned and eventually sank. The loss of well control resulted in a multi-day massive oil spill which affected the Gulf of Mexico, the coastlines and economies of several states, and significantly damaged numerous natural resources, both flora and fauna.
In general, I believe when a corporation is allowed to plead guilty and pay a fine, it is unlikely that it will change the corporation’s conduct. This mindset seems to inform the U.S. Department of Justice’s recent indictment of individual BP employees. It seems only a matter of human nature that one is more likely to pay closer attention to one’s actions when the individual faces time behind bars. Do I think these individuals should have been indicted? Do I think they’re guilty? I do not know the facts of the case well enough to articulately comment. And, in my experience, there is no substitute for sitting through an entire trial and hearing all the testimony, watching the demeanor of all the witnesses, and seeing all the trial exhibits, before forming an opinion about any civil or criminal case.
Thus, even though I, like most of us, may reach tentative conclusions in my mind when hearing of an event, or reading in the newspaper a reporter’s account of the day’s testimony in a civil or criminal case, there is simply no substitute for being in the courtroom and listening and watching for oneself. In this spirit, here are links to the…