Author Archives: Fred Goldsmith

About Fred Goldsmith

Admiralty & maritime lawyer with Goldsmith & Ogrodowski (http://www.golawllc.com) in Pittsburgh, PA.

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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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed. 

We also represent passengers and families when an injury or death occurs aboard or involving recreational or commercial passenger vessels.

If you have questions about this post or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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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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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.

If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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 TownsendMiles 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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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat and barge crewmembers–and their families, when a crewmember has been seriously injured or killed.

If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about us on our website, http://www.golawllc.com.

Court Finds Seaman’s Protection Act Requires Tug Captain Fired for Reporting Safety Violations be Re-Hired

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.

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OSHA has a webpage devoted to the Seaman’s Protection Act and how to report violations:
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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the rights of commercial vessel crewmembers. We regularly bring personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat crewmembers–and their families. If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. Our website is http://www.golawllc.com.

Crewman Seriously Injured From Fall on Icy Barge Deck Can Pursue Unseaworthiness Claim

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.

Icy barge decks like this can be an "unseaworthy" condition under the general maritime law, entitling a Jones Act seaman to recover for his or her injuries.

An icy barge deck like this can be an “unseaworthy” condition under the general maritime law, entitling a crewmember to recover significant money damages for his or her injuries.

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.”

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat crewmembers–and their families.  If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

Court Orders Towboat Company to Produce Surveillance Video Before Crewman’s Deposition

In Meyer v. Turn Services, L.L.C., 2016 WL 6610931 (E.D. La.  Nov. 9, 2016), a federal magistrate judge granted the plaintiff towboat crewman’s motion to compel the defendant towboat company to produce surveillance video it had shot of the crewman.  The Court also denied the company’s motion for a protective order to allow it to withhold the video until after its lawyer had taken the crewman’s deposition.  Magistrate Judge Wilkinson wrote:

“Defendant has failed to make a particular and specific demonstration of fact, that withholding [its] surveillance evidence will either encourage a dishonest plaintiff to testify honestly or enable them to catch plaintiff in a lie….To conclude that a witness would lie or would testify truthfully only because of the threat that a surveillance tape might exist is simply stereotyping, an exercise in speculation….[Defendant’s argument is] a faulty one, because it flies directly in the face of the very purpose of discovery. The federal rules promote broad discovery so that all relevant evidence is disclosed as early as possible,…a fair contest, where each party can knowledgeably evaluate the strength of its evidence and chances of ultimate success.”

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“To permit plaintiff’s deposition to go forward before production of the surveillance evidence that all parties know exists undermines the search for truth, inhibits full trial preparation and settlement evaluation and invites an evidentiary mess at trial. I have reviewed numerous surveillance films and photographs in personal injury cases during my 21 years as a magistrate judge, both during and before trial. They depict what they depict, but seldom provide a full evidentiary picture. Invariably, the secretly recorded plaintiff has some explanation for the conduct being photographed, some testimony about the absolute necessity of his or her engaging in the photographed activity or some complaint that the photography does not also show the pain, discomfort, disability or medical treatment experienced in the aftermath of the surreptitiously recorded activity. The very purpose of discovery is to get all such facts and explanations on the table and out in the open, so that the case may be fully and accurately evaluated and adjudicated.”

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat crewmembers–and their families.  If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

Texas Federal Judge Sends to Trial Case of Deckhand Who Seriously Injured His Back Trying to Swing a Barge Swivel Winch

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.

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings personal injury lawsuits for negligence under the Jones Act and, under the general maritime law, for negligence, unseaworthiness, and maintenance and cure, on behalf of commercial vessel crewmembers–particularly including towboat crewmembers–and their families.  If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, contact us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.  While we practice primarily in Pennsylvania, West Virginia, and Ohio, we will also consider accepting cases anywhere in the U.S., typically with assistance from local counsel.