Tag Archives: Limitation of Liability Act

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.

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Tug Operator’s Lack of Training and Procedures Lead to Deckhand’s Crushing Death in Capstan and $1.6 Million Judgment

Two days after Christmas 2009 aboard the Tug TURECAMO GIRLS, deckhand Ricardo Young was crushed to death in the tug’s capstan.  Medical experts testified Young was conscious for over two minutes to experience his body being torn apart as the towing line, attached to a sludge barge weighing 15 million pounds, wrapped him around the capstan while the captain attempted a “swing maneuver” on the Hackensack River.  The case was tried to the bench.  In In re Moran Towing Corp., 2013 U.S. Dist. LEXIS 161482 (S.D.N.Y. Nov. 11, 2013), the court found Moran directly and vicariously negligent under the Jones Act and its tug unseaworthy under the general maritime law.

The Tug TURECAMO GIRLS

The Tug TURECAMO GIRLS

The court found:

“Moran failed to adequately implement any procedures or guidelines that would provide its crew with the requisite training, skill and knowledge to safely perform a swing maneuver, operate the capstan or handle towlines. … In fact, Moran issued no policies as to line-handling whatsoever, including ongoing training or standards for handling a line under strain. Additionally, Moran did not provide a safe work environment in which to handle the capstan, forcing Young to operate in a danger zone. These failures proximately contributed to Young’s death.”

The court further found:

“Moran also failed to provide any written policies or safety procedures regarding the swing maneuver as required under the ISM [International Safety Management Code] and RCP [American Waterways Operators Responsible Carrier Program].  Moran adheres to the ISM and the RCP, which respectively require that ‘the company should establish procedures, plans and instructions, including checklists as appropriate, for key shipboard operations concerning the safety of the personnel’ and ‘establish documented procedures for the use of . . . winches.’ … The capstan is a type of winch, and line-handling is arguably the most important ‘shipboard operation.’ … Despite subscribing to these safety requirements, Moran did not have any written guidelines, instructions or procedures whatsoever for line handling during swing maneuvers or capstan operations. … Moran did not have a risk assessment for a swing maneuver or handling lines under pressure, or safety procedures for capstan operations in any of its Port Advisories or safety meetings, or require its captains and crews to dedicate time during the safety meetings to discuss or practice the swing maneuver or capstan operations for lines under strain. … Additionally, Moran’s [safety and operations manual] contains no instructions with respect to line handling or the swing maneuver.”

The court held Moran had failed to prove it was entitled to limit its liability under the Vessel Owners’ Limitation of Liability Act and that Young’s widow and estate were entitled to about $1.6 million in damages.

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Our law firm, Goldsmith & Ogrodowski, LLC, represents the families of 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.

Vessel Owner Not Entitled to Damages Cap of Limitation of Liability Act When it Fails to Properly Train its Captain and Has Policy of Violating the Rules of the Road

In In Re: BOPCO, L.P., 2013 U.S. Dist. LEXIS 128991 (E.D. La. Sept. 9, 2013), two vessels collided at the intersection of the Back Levee Canal and the Main Canal at Point à La Hache, Louisiana. BOPCO, L.P.’s vessel, the M/V MR. JOE, operated by Captain Tyrell DuPont, collided with crabber Ryk Frickey’s vessel as Frickey was returning from checking his traps.  It was a clear day, but the view of the intersection the two vessels was entering was partially obstructed by vegetation and marsh grass.  The Court, well-respected U.S. District Judge Helen Ginger Berrigan, found the M/V MR. JOE had an operational radar system, but it was not in use.

A typical marine radar control unit and screen.  The vessel owner in this case, incredibly, had a policy that its captains not use radar during the day.

A typical marine radar control unit and screen. The vessel owner in this case, incredibly, had a policy that its captains not use radar during the day.

BOPCO filed this lawsuit under the federal Vessel Owners’ Limitation of Liability Act, 46 U.S.C. Section 30501, et seq., seeking to limit its liability to the value of its vessel, $45,000.  Frickey, however, was seriously injured in the collision.  He was unable to return to work and had to undergo lumbar fusion surgery.

A jury found BOPCO negligent under the general maritime law and awarded damages to Frickey.  It found BOPCO 75% at fault, Frickey 25%.  Judge Berrigan, in this decision, addressed whether BOPCO was entitled under the Limitation of Liability Act to limit its damages exposure to Frickey to the $45,000, which was the value of its vessel.  The Court described the burden on a vessel owner in these circumstances:

“The Limitation of Liability Act provides that a vessel owner may limit its liability after an accident to the value of the vessel and pending freight….Despite this, if ‘the vessel’s negligence or unseaworthiness is the proximate cause of the claimant’s loss, the [defendant]-in-limitation must prove it had no privity or knowledge of the unseaworthy conditions or negligent acts.’…Privity or knowledge is understood to be complicity in the fault that caused the accident….Privity or knowledge is imputed to a shipowner if he personally participated in the negligent conduct or brought about the unseaworthy condition….A corporation has knowledge of the negligent act if its managing officers knew or should have known about conditions or accidents likely to cause the loss….The corporation may be found to have knowledge if the negligent condition could have been discovered through reasonable diligence….The corporation must overcome a presumption that its officers and managers had actual knowledge, and that they should have known of the negligent condition that caused the harm….The burden of proving lack of privity or knowledge of the negligence by a preponderance of the evidence is on the owner of the vessel seeking to limit its liability.”

In this case, BOPCO argued to the Court that the accident occurred soley because of navigational or other errors of its captain—that is, acts of negligence of which it could not have had privity to or knowledge of, and that it had done all it had to do by hiring a competent captain.  Judge Berrigan disagreed.  She found BOPCO’s Captain DuPont “did not make a decision not to operate the radar because he thought it would be a better idea to use binoculars.”  Rather, the Court held, “DuPont followed BOPCO’s policy not to operate the radar system on a clear day in the channel.” (emphasis added)  Thus, Judge Berrigan found BOPCO had privity or knowledge of the accident’s causes and thus could not limit its liability under the Limitation of Liability Act because BOPCO “(1) failed to train DuPont, and (2) not only failed to require the use of radar, but had a policy stipulating that radar should not be used in conditions such as those on the day of this accident.”

Specifically, the Court wrote: “While DuPont knew that he was required to follow the Rules of the Road, and had a general knowledge of what he thought the rules were, his idea of the Rules of the Road was clearly hazy, and this led him not to follow the Rules, which led to the collision….The Court agrees with Frickey that it was not enough for BOPCO’s safety manual to require a vessel operator to know and obey the Rules of the Road.  BOPCO needed to train DuPont on the Rules. It was required to do due diligence to know that DuPont had not received past training, and BOPCO’s lack of due diligence leads to privity or knowledge of the accident that ensued as a result of DuPont not receiving proper training.”

On the policy of BOPCO to not require use of radar during the day, the Court was highly critical.  Judge Berrigan wrote:

“BOPCO was required to use its radar. Fernandez explained that the reason he tells his men not to turn the radar on during the day is that it is ‘almost looking like at a video game while you’re driving.’ Fernandez said that he would prefer for his captains to have their eyes on the waterways. BOPCO made its decision to tell its captains not to use radar during the day in contravention of the Rules of the Road. The Court does not understand how radar could be distracting during the day, but not during the night. Additionally, people drive with GPS devices all the time, and while they may be distracting, they are considered to be more helpful than they are distracting. A device, such as radar, that is not just helpful, but also a tool to ensure greater safety, is surely more of a help than it is a hindrance. Under Judge Learned Hand’s theory, the burden of taking the precaution to use radar is certainly less than the probability of the accident multiplied by the injury. It was negligent for BOPCO not to use the radar, and BOPCO propagated the negligence through a policy. Even Fernandez admitted that there is no harm in using radar on a bright, sunny day.”

Since BOPCO was not entitled to the cap afforded by a successful invocation of the Limitation of Liability Act, Judge Berrigan held it responsible for Frickey’s damages, as follows: (A) $258,571.78 for medical expenses, past and future; (B) $50,250.00 for loss of earning capacity, past and future; (C) $153,750.00 for physical pain and suffering, past and future; and (D) $367,500.00 for mental anguish and emotional distress, past and future.

Our law firm, Goldsmith & Ogrodowski, LLC, represents captains, pilots, deckhands, engineers, and cooks who serve aboard towboats, barges, and other commercial vessels who, like Frickey, are seriously injured or killed on the job.  We regularly face vessel owners who attempt to assert the Vessel Owners’ Limitation of Liability Act as a defense.   If you have questions about your or your family’s legal rights under maritime, or 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.

In Vessel Owner’s Limitation of Liability Act Case in Federal Court, Injured Claimant Need Not Stipulate to Owner’s Right to Seek Exoneration

In two unrelated Vessel Owner’s Limitation of Liability Act (46 U.S.C. § 30501, et. seq.) cases decided the same day, a Wheeling, West Virginia-based federal judge ruled in Complaint of: Bellaire Harbor Service, LLC, 2013 U.S. Dist. LEXIS 117991 (N.D. W. Va. Aug. 20, 2013) and In re Campbell Transportation Co., 2013 U.S. Dist. LEXIS 117992 (N.D. W. Va. Aug. 20, 2013), that the vessel owners were seeking more than the general maritime law entitled them to in attempting to require the injured claimants–both Jones Act seamen–to stipulate, in order to resume their West Virginia state court lawsuits, that the vessel owners were entitled to litigate the issue of exoneration from liability, in addition to the issue of limitation of liability, in federal court.  The Court wrote:

“If courts required an exoneration stipulation prior to lifting the stay on a case, courts would be ‘enlarg[ing] shipowners’ rights under the Limitation Act and abridg[ing] claimants’ rights under the savings to suitor clause’….This Court agrees with the Fifth Circuit’s explanation and analysis of the issue. Thus, again this Court finds that the claimants need not stipulate to the plaintiffs’ right to litigate the exoneration issue in this Court. The claimants’ stipulation to the plaintiffs’ right to litigate all issues related to the limitation of liability, along with the claimants’ other stipulations, is sufficient for this Court to lift the injunction on the state court action and grant the motion to stay this action.”

The Court also held in the cases:

  1. The husband and wife claimants’ stipulation that the claims of the injured husband will have irrevocable priority over the claims for damages of the wife transformed the case into the functional  equivalent of a single claimant case, protecting the vessel owner while allowing the claimants to pursue their state court action;
  2. The claimants are not required to agree to limit damages to the value of the vessel and its attending freight, nor are they required to stipulate to the precise amount of the limitation fund, or rather the precise amount of the vessel owners’ interest in the vessel and freight; and
  3. It was improper to determine [at this early stage] whether the claimants’ maintenance and cure claim was subject to the Vessel Owners’ Limitation of Liability Act.

Our law firm, Goldsmith & Ogrodowski, LLC, represents the towboat deckhand claimants in the above cases and we regularly represent deckhands and other crewmen of towboats, barges, and other commercial vessels who are seriously injured or killed on the job.   If you have questions about your or your family’s legal rights under maritime, or 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.

Liability Waiver Signed by Cruise Line Passenger While on Sea-Doo Excursion is Void Under Limitation of Liability Act

As described in In re Royal Caribbean Cruises, 2013 U.S. Dist. LEXIS 14610 (S.D. Fla. Feb. 4, 2013), Linda Arnold and her husband, Glynn Daniels [the Court in its opinion refers to Daniels as her “boyfriend,” but in her filings in the case, Arnold says Daniels is her husband], went on a three-day cruise aboard Royal Caribbean Cruises, Ltd.’s (“Royal”) ship, the “MONARCH OF THE SEAS.” The cruise began and ended at Port Canaveral, Florida. While on a planned stop at Coco Cay, Bahamas (an island operated by Royal), Arnold and Daniels signed up for a personal watercraft (“PWC”) tour of the island, offered by Royal. To participate, they had to go through a safety orientation conducted by Royal employees. They were each also required to sign Royal’s liability waiver form, called a “Personal Watercraft (Wave Jet Tour) Express Assumption of the Risk – Waiver & Release of Liability.”

2010 Sea-Doo Model GTI-130

2010 Sea-Doo Model GTI-130

[As an aside, the Court in its decision refers to the PWCs throughout its opinion as “jet-skis” or “jet skis.” Even though the term “Jet Ski” is often used to refer, generically, to various makes of PWCs, I am confident the manufacturer of the product, and owner of the trademark, Kawasaki Motors Corp., U.S.A., would not be pleased. And, actually, the two PWCs involved in the accident you are about to read about were 2008, 2009, or 2010 model GTI-130 “Sea-Doos” (another registered trademark), manufactured by Bombardier Recreational Products Inc. Royal states in one of its filings in the case it’s unsure which Sea-Doos were actually involved in the accident: “there were fifty-eight (58) Seadoo jet skis in use by Petitioner at Coco Cay, Bahamas. All of these Seadoos were GTI-130 models and all were from the years 2008, 2009, or 2010. As the exact Seadoos involved are unknown, Defendant stipulates, for the purposes of this Complaint, that the jet skis involved in the crash were the most valuable jet skis in use at Coco Cay at that time, i.e., the 2010 GTI-130.”]

Royal Caribbean Cruises Ltd.'s MONARCH OF THE SEAS

Royal Caribbean Cruises Ltd.’s MONARCH OF THE SEAS

So, Arnold and Daniels go on the PWC island tour. This is held in single-file, follow-the-leader format, with guides aboard PWCs in the lead and tail positions, while the guests are to be widely spaced in between on their own rented PWCs. Arnold and Daniels were on the Sea-Doo which was sixth in line. Daniels was driving. Arnold was the passenger. The plan was that when the tour began, the guide who was to eventually ride at the end of the line would ensure guests only departed on their PWCs when there was a sufficient gap between them and guests in front of them. But, sometime after the tour began, the guests aboard the fifth-in-line PWC slowed down. Daniels in turn slowed his and Arnold’s PWC, which was just behind the fifth-in-line PWC. But, other PWCs behind them caught up, failed to maintain a gap, and Arnold’s and Daniel’s PWC was struck by the PWC operated by another guest, who was either the eighth or ninth in line. Arnold was injured.

Royal filed suit in Florida federal court under the federal Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30505. This statute allows a vessel owner to seek exoneration from liability in an offensive filing in federal court, and, alternatively, to seek to have its liability limited to the post-casualty value of its vessel(s), if it can show that it lacked privity to or knowledge of the acts, events, or conditions which caused the accident. In its Limitation Act suit, Royal thus sought to be exonerated from liability for the accident, or alternatively that its liability be limited to $9,600, the maximum potential value of its two Sea-Doos involved in the accident.

In her Claim, filed in Royal’s Limitation of Liability Act case, seeking to recover for her injuries which she alleged were caused by Royal’s negligence, Arnold wrote:

“During the preparations for the excursion when the group participants came together, Plaintiff and other participants observed the driver of the Jet Ski who struck Plaintiff, and her companion, to be acting erratically, inattentive to the instructions, and overtly under the influence of drugs or alcohol, sufficient to give ample notice the Defendant, RCCL, its agents and employees, including the Jet Ski operators and instructors who have a duty, under the circumstances, to control said unfit participants and prevent them from participating as unable and potentially harmful to others.”

Royal asked the Court to dismiss Arnold’s claims. It argued Arnold had waived her right to sue when she signed Royal’s waiver. U.S. District Judge Robert N. Scola, Jr., however, denied Royal’s motion. He found Royal’s waiver was invalid under federal law, specifically, under another section of the Vessel Owners’ Limitation of Liability Act, 46 U.S.C. § 30509, which voids contractual provisions which purport to limit passenger vessel owners’ liability for personal injury or death. Section 30509, entitled “Provisions limiting liability for personal injury or death,” states:

“(a) Prohibition.

(1) In general. The owner, master, manager, or agent of a vessel transporting passengers between ports in the United States, or between a port in the United States and a port in a foreign country, may not include in a regulation or contract a provision limiting–

(A) the liability of the owner, master, or agent for personal injury or death caused by the negligence or fault of the owner or the owner’s employees or agents; or

(B) the right of a claimant for personal injury or death to a trial by court of competent jurisdiction

(2) Voidness. A provision described in paragraph (1) is void.”

Trial of the Arnold case is scheduled to begin on September 9, 2013, in Miami.

The U.S. Eleventh Circuit Court of Appeals, in an unpublished decision rendered in December 2011, in Johnson v. Royal Caribbean Cruises, Ltd., similarly found Section 30509(B)(2) voided the same cruise line’s electronically-signed aboard ship release.  See http://www.ca11.uscourts.gov/unpub/ops/201111729.pdf

To learn more about the Vessel Owners’ Limitation of Liability Act, click the link to read my November 2011 column in MarineNews magazine, “The Vessel Owners’ Limitation of Liability Act — An Anachronism that Persists, For Now.

Finally, if you’re wondering why I included a discussion of this Royal Caribbean case, which seemingly has nothing to do with towboats and barges, in Towboatlaw, just send me an e-mail or “leave a reply,” and I’ll explain. 🙂

Our law firm, Goldsmith & Ogrodowski, LLC, regularly represents crewmen and passengers aboard commercial vessels 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.