Tag Archives: admiralty lawyer

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.

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Survivors of Tug Captain Found Dead and Floating Alongside Allowed to Proceed With Claims Against Tug Owner

In In re Complaint of McAllister Towing & Transp. Co., Inc., 2015 WL 1515369 (S.D.N.Y. Mar. 31, 2015), the tug owner, McAllister, filed suit under the Vessel Owners’ Limitation of Liability Act and later sought to dismiss on motion for summary judgment the claims brought by the survivors of the captain of its tug, the A.J. McALLISTER.  The tug’s captain, Edward Cornelius, was last seen alive aboard the tug at 0922.  Just seven minutes later, dock surveillance video showed him floating lifeless in the water.

McAllister, the tug owner, argued Captain Cornelius likely had a heart attack and tumbled into the water afterwards, and thus that his death could not be its fault.  Cornelius’ survivors, however, argued the captain may have slipped while climbing from the tug to the pier, an accident they argued could have been avoided had the tug owner provided a proper gangway.

More facts: On the morning of the accident, Captain Cornelius told another crewmember he was going to have coffee, read a paper, then go ashore to his truck to get some paint.  The evidence supported that the captain, in fact, did have coffee and read the paper on the tug.  Then he was captured on video surveillance footage at 0922 facing in the direction of the port side of the tug, which side was tied to the pier, appearing as though he were going to debark.  At 0923, he was not in view of the pier surveillance camera on the boat or at the pier.  The captain was not seen again until 0929, when pier surveillance video showed his lifeless body floating in the water, two feet from the tug.

The Court found that, like the majority of McAllister’s tugs, the A.J. McALLISTER did not have a gangway, or any means of exiting the boat that was enclosed on both sides, to get to the pier. So, to exit the boat, the Court noted, a crewmember would have to walk up a three-step stool on the tug, then step onto the cap rail — a raised metal surface on the boat that was sloped downward from bow to stern and had a “little bubble” on part of its surface, then possibly step onto the pier fendering system, to which the tug was not tied tightly, then step onto the concrete of the pier.

The Court described how the fendering system at the New Bedford, Massachusetts, pier where the tug was moored had boards that suffered from heavy wear and tear and draped over them were the lines used to moor the tug.  There was also a strong wind between 25 and 30 miles per hour the morning of the captain’s death.  Also, there were no handrails for support during this exiting process.  Captain Cornelius was not intoxicated or under the influence of drugs at the time of the accident, and he was known to be a safe and outstanding captain.

The Court concluded this factual record presented sufficient issues to require the case to be tried and denied the tug owner’s motion for summary judgment as to both the survivors’ Jones Act negligence and general maritime law unseaworthiness claims.

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Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen (including cooks, engineers, mates, deckhands, pilots, and captains) of towboats, tugs, barges, and other commercial vessels, and passengers aboard cruise and excursion boats and ships, in personal injury and wrongful death claims.  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 Vessel Owners’ Limitation of Liability Act, 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 PA, WV, and OH, but also all over the inland waterways.

Court Invokes Flotilla Doctrine, Orders Vessel Owner to Increase Security in Limitation Act Case to Include Value of 2d Tug Involved in Accident

The federal case of Crosby Marine Transp., LLC v. Triton Diving Servs., LLC, CIV. 13-2399, 2014 WL 5026070 (W.D. La. Oct. 8, 2014) arises out of accident which occurred in May 2013, in which a tug, the M/V CROSBY MARINER, and another Crosby Marine Transportation-owned tug, the M/V CROSBY EXPRESS, were moving a barge in Bayou Chene near Amelia, Louisiana. The CROSBY EXPRESS was the lead tug that was towing the barge, while the CROSBY MARINER had the barge on its hip to stabilize the barge during transit.  Both tugs were manned by captains, but all passing arrangements and decisions about the speed of the tow and navigation came from the captain of the lead tug, the CROSBY EXPRESS.

Mark Rottinghaus, a Crosby Tugs, L.L.C. employee and crewman aboard the M/V CROSBY MARINER, was injured when the M/V TRITON ACHIEVER, a vessel owned and operated by another company, collided with the CROSBY MARINER.

Crosby Marine Transportation, L.L.C., as owner of the M/V CROSBY MARINER, and Crosby Tugs, L.L.C., as owner pro hac vice of the M/V CROSBY MARINER, filed a Verified Complaint for Exoneration from or Limitation of Liability, pursuant to Rule F of the Supplemental Rules for Certain Admiralty and Maritime Claims and the Vessel Owners’ Limitation of Liability Act, seeking to be exonerated or alternatively to limit its liability to the value of the tug, with pending freight, upon which Rottinghaus was serving.  Simultaneously with the filing of its complaint, Crosby filed an Ad Interim Stipulation and posted security only in the amount of its interest in the M/V CROSBY MARINER and pending freight together with interest at the rate of 6% per annum from the date of the stipulation and for costs.

Rottinghaus then filed a motion under Supplemental Rule F(7) asking the federal judge to order Crosby to increase its filed security to include the value of the other Crosby tug, the CROSBY EXPRESS.  Rottinghaus cited the “Flotilla Doctrine.”  Under this Doctrine,  where vessels involved in a casualty are (i) commonly-owned, (ii) engaged in a common enterprise, and (iii) under a single command, the court may order that all vessels in the flotilla, or their value, together with pending freight, be tendered to the court as security for claimants when the vessel owner files for court protection under the federal Vessel Owners’ Limitation of Liability Act.

Rule F(7), entitled “Insufficiency of Fund or Security,” states:

“Any claimant may by motion demand that the funds deposited in court or the security given by the plaintiff be increased on the ground that they are less than the value of the plaintiff’s interest in the vessel and pending freight. Thereupon the court shall cause due appraisement to be made of the value of the plaintiff’s interest in the vessel and pending freight; and if the court finds that the deposit or security is either insufficient or excessive it shall order its increase or reduction. In like manner any claimant may demand that the deposit or security be increased on the ground that it is insufficient to carry out the provisions of the statutes relating to claims in respect of loss of life or bodily injury; and, after notice and hearing, the court may similarly order that the deposit or security be increased or reduced.”

The purpose of Rule F(7), the Court found, “is to ensure that the plaintiff-in-limitation is not permitted to submit an inadequate bond with impunity and that the claimant may not contend that the bond should be higher than the actual value of the vessel.”

The Court agreed with Rottinghaus and granted his motion under Rule F(7) to increase security.  It ordered that a court-appointed expert appraise the value of both the second tug, the M/V CROSBY EXPRESS, along with the CROSBY MARINER, or, alternatively, that the parties file a stipulation — or written agreement, as to the value of both tugs along with their pending freight, as the Limitation Act and Rule F require.

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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, and passengers aboard cruise and excursion boats and ships.  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 Vessel Owners’ Limitation of Liability Act, feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 (toll-free), 412-281-4340, or info@golawllc.com.  Our website is http://www.golawllc.com.  We practice primarily in PA, WV, and OH, but also all over the inland waterways.

Towboat Company’s One-Sided Review of, and Delay in Paying, Seaman’s Maintenance and Cure Claim Draws $300,000 Punitive Damages Judgment

In Stermer v. Archer-Daniels-Midland Co., 2014 WL 25153872014 (La. App. 3d Cir.  June 4, 2014), American River Transportation Company (ARTCO) employed Adrienne Stermer as a cook on its towboat.  About two weeks into her hitch, while the towboat was facing up to its tow and Stermer was in the galley, kneeling before an open refrigerator, cleaning a steak sauce tray, the vessel’s movements caused her to lose her balance and fall forward.  Apparently no one warned her to “watch the bump.”  Stermer tried to steady herself by grabbing a shelf inside the refrigerator, but her fingers went through the rack and her right hand was pushed backward.  Her knees hit the floor.  She tried to use her left hand to brace herself for the fall, but instead rolled onto her right ankle.  Nevertheless, she got herself up, brushed herself off, and returned to work.  While she had pain and swelling in her hands and right ankle, she just took Advil.  Stermer testified she was afraid to report her accident for fear of being fired.  But, five days later, when her hands and right ankle continued to swell and she could no longer tie her shoes, Stermer reported her injuries to the boat’s engineer, who informed the pilot.  Stermer then completed an ARTCO accident report.

Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

Adrienne Stermer worked as a cook aboard the ARTCO towboat, the M/V COOPERATIVE ENTERPRISE

Three days later, ARTCO put Stermer ashore in Paducah, Kentucky, and to a hospital there.  The history of her injuries that Stermer gave to medical personnel at Western Baptist Hospital was consistent with what she had told the engineer and what she had written in her accident report.  The ER physician diagnosed bilateral hand and wrist sprains and a right ankle sprain, and prescribed antiinflammatories, pain medication, and an air cast for Stermer’s right ankle.  She then returned to her towboat, tried to work, but was relieved, and sent home to Louisiana.

Later, the vessel’s captain and a deckhand testified they were in the galley when Stermer claimed to have been hurt, that there were two bumps during the facing-up, but they did not see her fall into the refrigerator.  Just five days after Stermer reported her accident, ARTCO sent Stermer a letter asserting her “recent complaints did not manifest itself [sic] in the service of the vessel” and that it would not pay her maintenance and cure.  Three days later, ARTCO sent Stermer another letter, this time to fire her.  It wrote her “willful disregard for the truth … demonstrated an unacceptable standard of conduct.”

A hand surgery specialist in Louisiana continued to treat Stermer, at first conservatively, but then with surgery, to repair a scapholunate dissociation.  This is a tear in the ligament between the scaphoid and lunate bones in the wrist.  This surgeon found Stermer’s injury was not preexisting.  ARTCO obtained an “IME,” or “independent medical opinion,” from an orthopedic surgeon who opined the injury was present before the accident aboard the towboat.  ARTCO, despite being kept continuously apprised of Stermer’s medical course, and despite Stermer’s demands for maintenance and cure, including a request to pay for her surgery, refused to pay maintenance and cure for two and a half years.  It delayed approving the surgery for 27 months, even though its IME physician agreed Stermer needed the surgery.

Stermer brought claims in state court against ARTCO for negligence under the Jones Act and, under the general maritime law, for unseaworthiness, maintenance and cure, and retaliatory discharge.  At trial, the judge awarded Stermer on her Jones Act negligence claim nearly $100,000 for lost employee benefits, $337,000 in lost wages, and $200,000 for pain and suffering.  The court also found ARTCO’s refusal to pay Stermer maintenance and cure for two and a half years “arbitrary and capricious” and assessed an additional $300,000 in punitive damages and $150,000 in attorney’s fees.  The court found she had not proved her unseaworthiness and retaliatory discharge claims.

ARTCO appealed only the punitive damages and attorney’s fee aspects of the trial court’s judgment.  The Louisiana appellate court described the seaman’s maintenance and cure claim under the general maritime law, the deferential standard under which it is to be judged, and the consequences maritime employers face when they callously disregard their maintenance and cure obligation.

The appeals court in its opinion wrote how maintenance and cure “is an ancient duty imposed upon the owner of a ship to provide food, lodging and necessary medical services to seamen who become ill or injured during service to the ship” and how “[r]ecovery is not dependent upon negligence of the vessel or the owner and the burden of proof in seeking maintenance and cure is relatively light.”  To win a maintenance and cure claim, “a seaman need only prove that the injury arose during his service of the vessel” and the seaman does not even have to prove his or her duties caused the injury.

Continuing, the appeals court noted that while an employer is entitled to investigate a seaman’s claim for maintenance and cure, to rely on recognized defenses to deny benefits when appropriate, and to require corroboration of the claim, the employer cannot be “lax” in its investigation.  Further, the court wrote, “when an employer’s investigation of a seaman’s claim reveals that doubts or ambiguities exist as to whether the seaman is entitled to maintenance and cure, they are resolved in favor of the seaman.”  “If an employer fails to properly investigate a claim for maintenance and cure or unreasonably rejects a claim after investigating the claim, the employer may be liable for compensatory damages that are a consequence of the failure to pay maintenance and cure. … The employer may also be liable for punitive damages and attorney fees if it is ‘more egregiously at fault’ in denying a proper claim for maintenance and cure. … This higher degree of fault has been explained as ‘callous and recalcitrant, arbitrary and capricious, or willful, callous and persistent.’ … An employer’s failure or refusal to consider the medical evidence of an injury or illness submitted by a seaman in support of his claim for maintenance and cure is grounds for concluding the employer’s failure to institute maintenance and cure is arbitrary and willful.”

The appellate court affirmed the trial court’s $300,000 punitive damages award for willful failure to timely pay maintenance and cure, but sent the case back to the trial court to develop further evidence on the lower court’s attorney’s fee award.  It found ARTCO “considered only evidence that indicated the incident Ms. Stermer reported did not occur before denying her claim for maintenance and cure,” yet disregarded seven key facts that supported the validity of Stermer’s maintenance and cure claim.  The appeals court held: “The totality of the evidence leads to the conclusion that once ARTCO had evidence that no accident occurred, it did not consider evidence corroborating Ms. Stermer’s claim that she was injured October 9.  Under these facts, we find that ARTCO’s investigation of Ms. Stermer’s claim was neither diligent nor reasonable and, therefore, find no manifest error in the trial court’s conclusion that ARTCO was arbitrary and capricious in denying Ms. Stermer’s claim.”  The appeals court also tacked-onto the judgment $10,000 for Stermer’s attorney’s fees on appeal.

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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, as well as passengers aboard cruise and excursion boats and ships.  If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact Fred Goldsmith or Rich Ogrodowski toll-free at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.

Federal Judge Refuses to Enforce Release Deckhand Signed While Unrepresented by Counsel, Lacking Specialized Medical Advice, and Paid Only $860 for Serious Back Injury

While deckhanding for Double J. Marine, LLC aboard its towboat, the M/V MISS KAYLYNN, Matthew Nuber seriously injured his back while pulling on a face wire.  On the day of the accident, Nuber only had the benefit of an emergency room physician’s opinion, without any diagnostic testing, such as an x-ray or an MRI, that he had only pulled a muscle.  One week later, Nuber returned to the ER where another physician released him to work full duty, still without any diagnostic testing, and without the opinion of a specialist, such as an orthopedic or neurosurgeon.

A deckhand handling a facewire.

A deckhand handling a face wire aboard a barge.

Later the same day, deckhand Nuber met with the vessel owner’s claims adjuster at a gas station and signed a “Receipt, Release, and Hold Harmless Agreement.”  The adjuster read and explained the release to Nuber and Nuber signed the release, purportedly knowingly giving up all his claims against Double J for the shipboard accident.  In exchange for signing the release, Double J paid Nuber only $860.  Nuber returned to work for Double J the next day.

About one month later, Nuber’s back pain returned.  Double J placed him on light duty, until Nuber could no longer continue to work.  Then, Double J finally sent Nuber to see a back specialist, an orthopedic surgeon, who promptly ordered an MRI.  The doctor diagnosed Nuber with herniated discs, recommended surgery, and opined the shipboard accident had caused the back injury.  Nuber then demanded Double J pay him maintenance and cure under the general maritime law.  Double J responded by filing this lawsuit, seeking a declaratory judgment that the release Nuber signed insulated it from Nuber’s claims.  Nuber then filed a Jones Act negligence, general maritime law unseaworthiness and maintenance and cure lawsuit against Double J in state court.

In Double J. Marine, LLC v. Nuber, 2013 U.S. Dist. LEXIS 173408 (E.D. La. Dec. 11, 2013), U.S. District Judge Martin L.C. Feldman of the Eastern District of Louisiana denied Double J’s motion for summary judgment, finding there were fact issues as to whether the release was enforceable.  Consistent with longstanding admiralty law, Judge Feldman discussed how the courts are charged with being protective of the rights of seamen:

“Seamen are wards of admiralty law, whose rights federal courts are duty-bound to jealously protect. … In protecting their rights, the Court must be ‘particularly vigilant to guard against overreaching when a seaman purports to release his right to compensation for personal injuries.’ … At the same time, however, the Court must balance the utility of maintaining confidence in the finality of such settlements. … In carefully scrutinizing releases or settlement agreements involving seamen, the Court must ultimately determine whether the seaman had ‘an informed understanding of his rights and a full appreciation of the consequences’ of executing the release at the time he executed it.”

Judge Feldman further wrote how the seaman’s employer bears the burden of proving the validity of a release, how the amount of money he or she is paid for the release is significant, as is the nature and extent of any medical and legal advice the seaman had available to him or her when signing the release:

“The party claiming that the matter has been settled bears the burden of demonstrating that a seaman’s release of claims was ‘executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights.’ …  Adequacy of consideration is one factor for the Court to consider in determining whether the seaman had an informed understanding of his rights. … However, the Court ‘lacks authority, especially where the seaman testifies to complete satisfaction, to void the agreement simply because the court thinks the seaman could have negotiated a better deal.’ … Another factor the Court considers in determining whether the seaman had an informed understanding of his rights is the nature of medical and legal advice available to him. … In this regard, a seaman ‘may have to take his chances’ that a properly diagnosed condition is ‘more serious and extensive than originally thought.’ … Other factors the Court considers include whether the parties negotiated at arm’s length and in good faith, and whether there is the appearance of fraud, deception, coercion, or overreaching.”

Here, Judge Feldman had to review competing versions of the gas station release signing: a transcript of the “ceremony” versus an affidavit from Nuber.  He concluded the release could not be summarily enforced against Nuber.  The Court’s analysis:

“Double J. contends that the record establishes that, at the time of releasing his rights, Nuber had an informed understanding of his rights and a full appreciation of the consequences. The Court disagrees. The record includes, on the one hand, a transcript of the meeting between Nuber and the adjuster in which Nuber indicated that he understood his rights and agreed to release them, and on the other, an affidavit executed by Nuber in which he swears he did not fully understand the ramifications of the release. That alone creates a genuine issue regarding whether Nuber executed the release freely and with a full understanding of his rights.”

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“The record also reveals that Nuber has only completed the 10th grade in special education classes, that he only received $530 in [new] consideration for settlement, and that he was not represented by counsel when he executed the release. ‘Although a court may uphold a release even when the seaman is not represented by his own attorney, [the Fifth Circuit] has repeatedly emphasized the importance of counsel in determining whether a seaman fully understood his rights and the consequences of releasing those rights.’ … Neither did Nuber receive an independent medical opinion regarding his injuries before executing the release.”

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“Double J. contends that the record clearly establishes that Nuber received adequate medical advice. The Court again disagrees. The record reveals that, before he signed the release, Nuber was treated twice at River Parishes Hospital where he was diagnosed with a pulled muscle and told to return to work. The emergency room physicians did not conduct any diagnostic testing, and did not refer Nuber to a specialist. When Nuber later sought more treatment, Dr. Nutik ordered an MRI, diagnosed Nuber with herniated discs, and recommended surgery. The record at least reveals a genuine issue regarding the adequacy of the medical advice Nuber initially received, if not a mutual mistake regarding the nature of Nuber’s injury.”

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“Finally, although Double J. maintains that the parties negotiated at an arm’s length and in good faith, the record shows that Nuber signed the release at a gas station on the very same day he received treatment. Double J. has failed to meet its burden of establishing that Nuber signed the release freely, without deception or coercion, and with a full understanding of his rights.”

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Our law firm, Goldsmith & Ogrodowski, LLC, represents the families of captains, pilots, mates, deckhands, engineers, and cooks who work aboard towboats, barges, and other commercial vessels, and who are seriously injured or killed on the job.  If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact us at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.

Influential U.S. 5th Circuit Court of Appeals: Jones Act Seaman Can Recover Punitive Damages In General Maritime Law Unseaworthiness Claim

In McBride v. Estis Well Service, L.L.C., 2013 U.S. App. LEXIS 20187 (5th Cir.  Oct. 2, 2013), a panel of the U.S. Fifth Circuit Court of Appeals, one of, if not the, most respected federal appellate courts when it comes to the development of maritime law in the United States, found that the Jones Act, which has been held to prohibit the recovery by seamen of non-pecuniary damages in a negligence claim brought under that statute, was no bar to the recovery of a form of non-pecuniary damages, specifically punitive damages, under the general maritime law in a seaman’s unseaworthiness action.  The Court described how punitive damages were available under the general maritime law long before the passage in 1920 of the Jones Act, and how the Jones Act did not expressly eliminate such damages.

The Fifth Circuit navigated around the Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), by following the Supreme Court’s more recent decision in Atlantic Sounding Co., Inc. v. Townsend, 557 U.S. 404 (2009).  In Townsend, the Supreme Court wrote:

“Because punitive damages have long been an accepted remedy under general maritime law, and because nothing in the Jones Act altered this understanding, such damages for the willful and wanton disregard of the maintenance and cure obligation should remain available in the appropriate case as a matter of general maritime law.  Limiting recovery for maintenance and cure to whatever is permitted by the Jones Act would give greater pre-emptive effect to the Act than is required by its text, Miles, or any of this Court’s other decisions interpreting the statute.”

The Fifth Circuit in McBride v. Estis Well Service, L.L.C built on the foundation excavated by the Supreme Court in Townsend, writing:

“…Townsend established a straightforward rule going forward: if a general maritime law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remains available under that cause of action unless and until Congress intercedes.”

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We viewed this as a good decision for our clients and the river industry workers we regularly represent.  Unfortunately, on September 25, 2014, all the judges of the Fifth Circuit Court of Appeals, sitting en banc, revisited this decision and overruled it, and on May 18, 2015, the U.S. Supreme Court decided not to review that decision.  Perhaps after this issue has been addressed by other federal circuit courts of appeal, and conflicts develop amongst the circuits, the U.S. Supreme Court will agree to address the issue of the recoverability by Jones Act seamen of both punitive and loss of consortium / loss of society damages under the general maritime law.  We believe they are recoverable under the sound logic of the U.S. Supreme Court’s 2009 decision in Atlantic Sounding Co. v. Townsend.

Our law firm, Goldsmith & Ogrodowski, LLC, serves as legal counsel for captains, pilots, deckhands, engineers, and cooks who work aboard towboats, barges, and other commercial vessels, and who are seriously injured or killed on the job.  If you have questions about your or your family’s legal rights under the Jones Act or the general maritime law, also known as “admiralty law,” feel free to contact us at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.

Louisiana Federal Court: Punitive Damages Recoverable Under the General Maritime Law in Longshoreman’s Section 905(b) Case

Since the U.S. Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), lower state and federal courts have been grappling with whether punitive damages and other nonpecuniary damage claims (like loss of consortium and loss of society) are available to seamen under the general maritime law, and to longshore and harbor workers in a negligence action against vessel operators under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. Section 905(b) (“LHWCA”). 

Section 905(b) of the LHWCA states:

“(b) Negligence of vessel. In the event of injury to a person covered under this Act caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 33 of this Act [33 USCS § 933], and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed to provide shipbuilding, repairing, or breaking services and such person’s employer was the owner, owner pro hac vice, agent, operator, or charterer of the vessel, no such action shall be permitted, in whole or in part or directly or indirectly, against the injured person’s employer (in any capacity, including as the vessel’s owner, owner pro hac vice, agent, operator, or charterer) or against the employees of the employer. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this Act.”

In Callahan v. Gulf Logistics, LLC, 2013 U.S. Dist. LEXIS 133050 (W.D. La. Sept. 16, 2013), U.S. District Judge Patricia Minaldi of the Western District of Louisiana, Lake Charles Division, found, citing the U.S. Supreme Court’s Atlantic Sounding decision, that a longshoreman could recover punitive damages under the general maritime law in a negligence action, and that such damages were not prohibited by Section 905(b) or the Supreme Court’s 1990 decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990).

Judge Minaldi wrote:

“Further, the Court in Townsend dispensed with the petitioners’ argument that Miles precluded the availability of punitive damages under general maritime law, stating that a reading which interprets Miles as ‘limit[ing] recovery in maritime cases involving death or personal injury to the remedies available under the Jones Act and the Death on the High Seas Act (DOHSA) . . . is far too broad.’  Townsend, 557 U.S. at 418-19 (citing 46 U.S.C. §§ 30301-30306).  ‘[B]y providing a remedy for wrongful death suffered on the high seas or in territorial waters, [Miles recognized that] the Jones Act and DOHSA displaced a general maritime rule that denied any recovery for wrongful death.’  Id. at 419 (citing Miles, 498 U.S. at 23-24).  Thus, the Court in Miles was tasked only with determining whether statutory maritime law such as the Jones Act and DOHSA expanded the relief previously available under general maritime law.  Id.  Discussing such relief, the Court notes that punitive damages ‘were well established before the passage of the Jones Act.’  Id. at 420 (internal citations omitted).  As such, these were damages previously available as part of general maritime law, and the availability of such damages was not altered by the enactment of § 905(b).  Ultimately, the Supreme Court finds that ‘the availability of punitive damages for maintenance and cure actions is entirely faithful to these ‘general principles of maritime tort law,’ and no statute casts doubt on their availability under general maritime law.’ Id. at 421….As a result of the Supreme Court’s recent assertion in Townsend, and its clarification of its holding in Miles, it seems clear that punitive damages are available for actions under general maritime law unless Congress has expressly forbade such availability. This court finds nothing in the language of § 905(b) which could be construed as so limiting the availability of punitive damages in a negligence action under the LHWCA.”

The Court also explained why it was not following a contrary view of at least one other Louisiana federal trial court: “It should be noted that the court is aware that at least one other court in this circuit has reached a contrary conclusion on this issue.  See In re: Int’l Marine, L.L.C., 2013 U.S. Dist. LEXIS 91370, 30 (E.D. La. 2013) (holding that under Scarborough v. Clemco Indus., 391 F.3d 660 (5th Cir. 2004), a seaman and his spouse are barred from seeking punitive damages . . . from a non-employer third party.).  However, the court therein acknowledged that ‘[t]he reasoning employed in Townsend casts doubt on the continued applicability of Scarborough.’ Id. at 31, n. 10.”

We view this decision as highly positive for our clients.  Our law firm, Goldsmith & Ogrodowski, LLC, represents captains, pilots, deckhands, engineers, and cooks who serve aboard towboats, barges, and other commercial vessels, as well as longshore and harbor workers, who are seriously injured or killed on the job.  If you have questions about your or your family’s legal rights under the general maritime law, also known as “admiralty law,” feel free to contact us at 877-404-6529 or 412-281-4340.  Our website is www.golawllc.com.  Our e-mail address is info@golawllc.com.