U.S. Coast Guard Ups Dollar Thresholds for Property Damage Marine Casualty Reporting
On March 19, 2018, the U.S. Coast Guard published a formal notice in the Federal Register, amending its regulations to increase the estimated dollar value of property damage required for vessel operators to immediately report the incident to this federal agency. A reportable property damage “marine casualty” increases to $100,000, from $25,000, and a “serious marine incident” in the property damage realm increases from $100,000 to $200,000.
The Coast Guard’s notice explains the increases are intended to catch-up with inflation and maintain the agency’s intent that “relatively minor” or “insignificant” property damage need not be reported.
The notice explains that while these increased thresholds may result in less frequent post-casualty drug testing in property damage incidents, mandatory drug testing following and reporting of other “reportable” incidents remains in place:
“We feel that the various types of reportable casualties detailed in 46 CFR 4.05-1 ensure we are made aware of those incidents that could indicate more serious problems and that may be averted in the future with timely intervention. These include groundings, bridge allisions, loss of propulsion or steering, certain equipment failures, incidents resulting in significant harm to the environment, fire or flooding that adversely affects the vessel’s seaworthiness or fitness for service, injuries beyond first aid, and loss of life—regardless of property damage cost.”
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U.S. Coast Guard Releases Marine Board of Investigation Report on EL FARO Tragedy
All thirty-three crew members of the container and roll-on/roll-off cargo ship, the EL FARO, perished on October 1, 2015, when the vessel sank near the eye of Hurricane Joaquin, en route from Jacksonville, Florida, to San Juan, Puerto Rico. The Coast Guard in its report faults, among others, the ship’s master and operating companies. You can read the enthralling 199-page report here:
https://media.defense.gov/2017/Oct/01/2001820187/-1/-1/0/FINAL%20PDF%20ROI%2024%20SEP%2017.PDF
The M/V EL FARO
Some excerpts from the report’s conclusions:
- “The loss of the U.S. flagged cargo vessel EL FARO, along with its 33 member crew, ranks as one of the worst maritime disasters in U.S. history, and resulted in the highest death toll from a U.S. commercial vessel sinking in almost 40 years.”
- “TOTE [the EL FARO’s operator] did not ensure the safety of marine operations and failed to provide shore side nautical operations supports to its vessels.”
- “TOTE and the Master and ship’s officers were not aware of vessel vulnerabilities and
operating limitations in heavy weather conditions.” - “The Master did not effectively integrate the use of Bridge Resource Management
techniques during the accident voyage. Furthermore, the Master of EL FARO did not order a
reduction in the speed or consider the limitations of the engineering plant as EL FARO
converged on a rapidly intensifying hurricane. This resulted in loss of propulsion, cargo shifting and flooding.” - “The crew’s complacency, lack of training and procedures, and EL FARO’s design
contributed to the crew’s failure to assess whether the vessel’s watertight integrity was
compromised.” - “TOTE’s lack of procedures for storm avoidance and vessel specific heavy weather
plans containing engineering operating procedures for heavy weather contributed to the loss of propulsion.” - “The loss of propulsion resulted in the vessel drifting and aligning with the trough of
the sea, exposing the beam of the vessel to the full force of the sea and wind.” - “A lack of effective training and drills by crew members, and inadequate oversight by
TOTE, Coast Guard and ABS, resulted in the crew and riding crew members being unprepared to undertake the proper actions required for surviving in an abandon ship scenario.” - “After 5:43 AM on October 1, the Master failed to recognize the magnitude of the
threat presented by the flooding into the hold combined with the heavy weather conditions. The Master did not take appropriate action commensurate with the emergent nature of the situation onboard EL FARO, including alerting the crew and making preparations for abandoning ship.”
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National Transportation Safety Board (NTSB) Releases 2016 Digest of Lessons Learned from 27 Major Maritime Casualties
According to the NTSB press release (https://www.ntsb.gov/news/press-releases/Pages/PR20170727.aspx), “The lessons learned from the investigation of 27 major, maritime accidents involving loss of life, injuries and property damage are detailed in the National Transportation Safety Board’s Safer Seas Digest 2016, released online Thursday [7/27/17].The publication is a compendium of the marine accident reports that the agency adopted or issued during calendar year 2016. The 68-page Safer Seas Digest 2016 contains information that can help mariners at the deckplate level prevent future accidents, and, can help maritime industry C-suites build and sustain a culture of safety at sea.
The lessons learned in the Safer Seas Digest 2016 are highlighted in 10 categories including Standard Maintenance and Repair Procedures, Operational Testing Procedures, Operating in Strong Currents, Familiarization with Local Recommendations, Bridge Resource Management, Safety Equipment and Access to High-Risk Spaces. The remaining three categories, Distraction, Fatigue, and Use of Medication While Operating Vessels, relate to issues on the NTSB’s Most Wanted List of Transportation Safety Improvements, highlighting the multi-modal nature of these threats to transportation safety.”
The digest includes lessons learned from four towing vessel collisions and one towing vessel fire. It also discusses the 2008 Memorandum of Understanding (MOU) between the NTSB and the U.S. Coast Guard as to which agency leads the investigation of any particular major marine casualty.
You can download the pdf file containing the digest, which includes photographs of the involved vessels and which is attractive and professionally-produced, here:
https://go.usa.gov/xRQgC
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$400,000 Judgment for Seaman’s Pre-Death Fear and Conscious Pain and Suffering Affirmed on Appeal
In McBride v. Estis Well Service, L.L.C., 2017 WL 1321979 (5th Cir. Apr. 10, 2017), Sky Sonnier, a crewman on a barge supporting a truck-mounted drilling rig operating in Louisiana navigable waters, was killed when the rig and truck toppled over, pinning him between the derrick and mud tank. The Fifth Circuit Court of Appeals affirmed the district judge’s finding that Sonnier’s survivors were entitled to recover $400,000 in damages for the fear he experienced trying to avoid the impact and the few minutes of conscious pain and suffering he endured before he expired. The appeals court wrote:
“As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible.”
The appellate court noted that the Jones Act enables a plaintiff to recover damages for pre-death pain and suffering, and that “[c]ompensable pain and suffering includes a victim’s ’emotional injury caused by fear of physical injury to himself.'” For a plaintiff to recover damages for a decedent’s post-injury pain and suffering, “he ‘must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.'”
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WA State Supreme Court: Jones Act Seaman Can Recover Punitive Damages in Unseaworthiness Claim
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.”
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