Category Archives: U.S. Coast Guard

U.S. Coast Guard Ups Dollar Thresholds for Property Damage Marine Casualty Reporting

USCG

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.”

* * *

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.

 

Advertisements

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.”

* * *

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.

Materials Vessel Operator Provides to U.S. Coast Guard to Further Agency’s Marine Casualty Investigation Not Exempt From Discovery by Injured Claimant

Patricia Guest, one of about 4,500 passengers and crew aboard the CARNIVAL SPLENDOR cruise liner in November 2010, allegedly slipped and fell, injuring her shoulder. She claimed in a personal injury lawsuit against Carnival Corporation her accident occurred while the vessel, including its stabilizers, was disabled and adrift following an engine room fire and that the ship “violently lurched,” causing her fall.

Cruise liner CARNIVAL SPLENDOR

Cruise liner CARNIVAL SPLENDOR

The U.S. Coast Guard conducted an investigation into the engine room fire and the failure of the ship’s automatic CO2 fire suppression system to deploy. Guest’s lawyers, as part of her lawsuit’s discovery process, asked Carnival for photographs it had taken, communications between it and the Coast Guard with respect to this investigation, and reports, memoranda, and documents Carnival had submitted to the Coast Guard. In response, Carnival claimed a federal law protected it from having to turn over the materials it had given to the Coast Guard.

The federal statute in question, codified at 46 U.S. Code Section 6308, is entitled “Information barred in legal proceedings.” It states, in pertinent part:

“…no part of a [U.S. Coast Guard] report of a marine casualty investigation…including findings of fact, opinions, recommendations, deliberations, or conclusions, shall be admissible as evidence or subject to discovery in any civil or administrative proceedings, other than an administrative proceeding initiated by the United States” and “[a]ny member or employee of the Coast Guard investigating a marine casualty…shall not be subject to deposition or other discovery, or otherwise testify in such proceedings relevant to a marine casualty investigation, without the permission of the Secretary [of the Department of Homeland Security].”

A Coast Guard regulation, appearing at 46 C.F.R. § 4.07-1(b), states the “investigations of marine casualties and accidents and the determinations made [by this agency] are for the purpose of taking appropriate measures for promoting safety of life and property at sea, and are not intended to fix civil or criminal responsibility.”

In Guest v. Carnival Corp., 2012 U.S. Dist. LEXIS 184936 (S.D. Fla. Nov. 7, 2012), a U.S. Magistrate Judge found that when reading Section 6308 together with Section 4.07-1(b), “it is clear that the scope of the statutory protection [of Section 6308] is limited to the Coast Guard’s investigative report, and anything included within that report, in order to avoid having the Coast Guard’s investigative report and its conclusions influence the litigation process.” But, the Court found, Section 6308 did not protect vessel owners like Carnival from having to hand-over to parties like Guest the materials Carnival had provided to the Coast Guard in furtherance of the Coast Guard’s investigation. The Court wrote:

“Ultimately, the issue before this Court is whether or not the material that Defendant produced to the Coast Guard is precluded from discovery pursuant to 46 U.S.C. § 6308(a). Defendant has failed to provide the Court with any compelling support for that proposition, and this Court has been unable to find the same independently. In addition, a review of the applicable case law unequivocally demonstrates that 46 U.S.C. § 6308(a) extends to the specific Coast Guard investigative report and, arguably, any other Coast Guard document produced in the course of its investigation that contains any findings of fact, opinion or conclusions – not, however, a litigant’s own documents. Accordingly, Defendant’s objections are overruled…..Defendant shall produce copies of all documents, photographs and any other materials provided to any governmental agency, classification society or flag state, including but not limited to the U.S. Coast Guard, in connection with the fire; the failure of the fire suppression systems; and the loss of propulsion aboard the vessel. Defendant shall produce the above-described documents within seven (7) days of this Order.”

About two months later, the parties announced to the Court the case had settled.

Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.  If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529, 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.

New York State’s Highest Court Dismisses Claim That State Inspectors Failed to Certify Safe Passenger Capacity of Tour Boat “Ethan Allen”

Tour boat Ethan Allen in operation.  It capsized and sank on October 2, 2005.

Tour boat Ethan Allen in operation sometime before it capsized and sank on October 2, 2005

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 after it was raised from 70 feet of water in Lake George

The Ethan Allen after it was raised from 70 feet of water in Lake George

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.”

Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen of towboats, barges, and other commercial vessels, as well as passengers aboard cruise and excursion boats and ships, primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.  If you have questions about your or your family’s legal rights under admiralty and maritime law, feel free to contact us at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is www.golawllc.com.