Category Archives: OH admiralty lawyer

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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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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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.

Punitive Damages Claim Against Operator of Lift Bridge, Which Crushed Tug’s Wheelhouse, Killing Captain, May Proceed to Trial

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.

Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

Florida Avenue lift bridge spanning the Inner Harbor Navigation Canal in Orleans Parish, Louisiana

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.

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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 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 taking cases anywhere on the U.S. inland waterways.

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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Our law firm, Goldsmith & Ogrodowski, LLC, regularly brings claims for negligence under the Jones Act and unseaworthiness and maintenance and cure under the general maritime law on behalf of commercial vessel crewmembers, both men and women, such as deckhands, mates, cooks, engineers, pilots, and captains.  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 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.  We practice primarily in PA, WV, and OH, but also all over the inland waterways.

Jury Properly Instructed “Assumption of the Risk” is No Defense, When Employer Injects Such Evidence and Argument Into Case

Union Pacific R. Co. v. Estate of Gutierrez, 2014 WL 4109586 (Tex.App. — Houston [1st Dist.] August 21, 2014), is a Federal Employers Liability Act (or “FELA”) case.  But, the Jones Act, applicable to a seaman’s negligence action against his employer for personal injury or death, expressly incorporates the FELA by reference, so court decisions under the FELA are highly persuasive in Jones Act cases, and vice versa.

UPIn this case, although the Court found Congress had amended the FELA in 1939 to abolish the assumption of the risk defense in actions brought under this statute, the Court agreed with plaintiff’s counsel that the railroad’s lawyer had repeatedly placed before the jury argument and evidence implying the deceased rail worker had a choice in many aspects of his job, and essentially that the worker could have through his choices avoided his own accident.  Under these circumstances, the appeals court agreed with the trial judge that it was necessary to instruct the jury before it retired to reach its verdict that the assumption of the risk defense was not available to the railroad defendant, in order to ensure the jury had a proper understanding of applicable law.

The appeals court summarized the deceased worker’s estate’s position on appeal as follows:

“Appellees, however, argue that appellant injected the issue of assumption of the risk by repeatedly telling the jury that Gutierrez had chosen to work the job on which he was injured, in the location where he was injured, and under the conditions existing at the time, despite there being no requirement for him to do so because his seniority allowed him to choose a different job. In support of their position, appellees point to several exchanges in voir dire during which appellant’s counsel asked venire members how they responded to unsafe working conditions in their job, suggesting that stopping work in such conditions was ‘good sense’ and assuming ‘personal responsibility.’ In opening statements, appellant’s counsel referred several times to Gutierrez’s seniority, that it allowed him to bid on any job he wanted, and that he picked the RIP track because that was his preferred location. Appellees also point to co-workers’ testimony elicited by [the railroad] that Gutierrez chose to work the job on which he was injured, despite seniority that allowed him to choose any position. Appellees argue that given these examples, and the fact that appellant claimed that Gutierrez had been contributorily negligent in causing his injury, an instruction that assumption of the risk is not a defense was warranted.”

The appeals court, in agreeing that the curative instruction to the jury on the non-applicability of the assumption of the risk defense was warranted, wrote:

“[A] trial court may instruct a jury that assumption of the risk is not a defense if there are ‘facts strongly suggesting assumption of the risk…..Here, appellant’s counsel reminded the jury numerous times—in voir dire, in opening statements, and through witness testimony—of the fact that Gutierrez’s seniority allowed him to choose any job he wanted but that he had chosen the job and location where he worked….Further, we note that a defendant’s intentions in presenting such evidence is not the proper focus; rather, it is the potential impact on the jury that governs whether an instruction is given….”

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Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, passengers aboard cruise and excursion boats and ships, and railroad workers covered by the FELA. If you have questions about your or your family’s legal rights under the Jones Act, the general maritime law, also known as “admiralty law,” or the FELA, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340. Our website is http://www.golawllc.com.  Our e-mail address is info@golawllc.com.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.