Tag Archives: OH admiralty lawyer

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

In Bordas v. Marquette Transp. Co. Gulf-Inland LLC, 2016 WL 2866266 (S.D. Tex. Apr. 26, 2016), report and recommendation adopted, 2016 WL 2858905 (S.D. Tex. May 16, 2016), U.S. District Judge Nelva Gonzales Ramos of the Southern District of Texas agreed with U.S. Magistrate Judge Jason B. Libby that Marquette Transportation Company Gulf–Inland, L.L.C. deckhand John Bordas’ case against Marquette, his employer and the operator of his towboat, and Ingram Barge Company, the owner of the barge upon which he was injured, should be tried, and thus denied both defendants’ pretrial motions for summary judgment.  Due to his injuries, Bordas had to undergo three back surgeries, including a lumbar fusion.  He was working as a first mate for Marquette aboard its towboat, the M/V ST. JOSEPH.  Bordas claimed he injured his back while aboard Ingram’s barge, in the process of securing a second barge into tow.  He alleged that as he tried to singlehandedly move the swivel winch on the Ingram barge into position, it became caught or stuck and caused his injury.

The Court described how the defendants tried to lay all blame for the injury on Bordas himself:

“Here, Marquette moves for summary judgment, arguing it cannot be held liable for Plaintiff’s injury because the sole cause of Plaintiff’s injuries ‘was wholly unexpected, undetectable, and was not caused or contributed to by any of Marquette’s acts or omissions.’ Marquette also argues Plaintiff ‘was the only person in a position to judge whether the winch was functioning and how much force he could safely apply.’ In making these arguments, Marquette relies solely on Plaintiff’s testimony that there was adequate crew to perform the operation, Plaintiff inspected the barge beforehand and all equipment appeared normal, nothing indicated the subject winch was defective, and he injured himself when he attempted to move the winch and it did not move or swivel as designed.”

Captain Phillip Hogan, the main captain of the M/V ST. JOSEPH, however, testified at deposition about “the status of swivel winches in the industry, their known hazards, and the condition of the winch in question.”  The Court found Captain Hogan’s testimony sufficient to establish a material issue of fact for trial “as to whether Marquette violated its duty to provide Bordas with a safe place to work through its failure to inspect the Ingram barge and its winches.”  The Court wrote, “an employer has a duty to inspect third party ships to which it sends its employee to work upon….If, by reasonable inspection, Marquette could have discovered the improperly functioning winch, then Marquette can be charged with notice of that condition.”

In denying Ingram–the barge owner’s–motion for summary judgement, the Court again relied on Captain Hogan’s testimony, writing:

“Further, Captain Hogan’s testimony establishes a deck hand from the towing vessel is at some point going to be on a towed barge to make and break tow and the towed barge’s winches are used to make and break tow. A defective or non-functioning winch could easily cause harm to the deckhand of the towing vessel. Captain Hogan’s testimony provides some evidence that the very nature of swivel winches causes hazards that are not present with stationary winches and the industry is moving away from swivel winches due to their hazards. Plaintiff has produced evidence that creates an issue of material fact–whether Ingram knew or should have known the swivel winch on its barge was not working properly and advised Marquette.

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

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.

Welcome to Towboatlaw

Welcome to Towboatlaw, a blog focused on admiralty & maritime law as it is applied by judges and lawyers on the rivers and other inland waterways of the United States.  My name is Fred Goldsmith.  I am a lawyer who focuses his practice on admiralty and maritime law.  I, along with my partner, Rich Ogrodowski, am the co-founder of Goldsmith & Ogrodowski, LLC (http://www.golawllc.com), a law firm based in Pittsburgh, Pennsylvania, which is dedicated to representing workers, or families of workers, who have been seriously injured or killed working aboard towboats and barges as deckhands, pilots, captains, engineers, mates, and cooks.  We practice primarily in Pennsylvania, West Virginia, and Ohio, but also all over the inland waterways.

Through this blog I hope to highlight legal and other issues that may interest the men and women, and their families, who work in one of the most important, yet dangerous, occupations in this country.  Towboats push barges on the inland waterways, or “brown waters,” of the United States, transporting products which are critical to the American economy, such as: coal for power plants and steel mills; oil, gasoline, and diesel to power and lubricate cars, trucks, and machinery; sand, gravel, and other aggregates which are used to pave our streets and highways, build our homes, offices, and factories; steel, aluminum, and scrap metals which are the building blocks of automobiles, refrigerators, freezers, and the feedstock for steel mills; and corn and wheat for our domestic food industries and for export.

Paddlewheel towboat “Mark Twain” and barge tow circa 1930s

The basic technology of the river industry, as important as it is, however, has not really changed in over 100 years.  Towboats (sometimes also called “pushboats”), historically powered by steam-driven engines, yet now diesel-powered, still, as they were many decades ago, are wired to (or “faced up” to) and push barges, formerly made of wood, now made of steel.  This industry still requires men and women to be away from home and family for days and weeks at at time.  It still demands these same men and women work around the clock, every single day of the year, in the heat and humidity of a Louisiana summer and the numbing cold of a western Pennsylvania winter.  They must work in ultra-hazardous locations, amidst tremendous forces.

The most unfortunate part of the towboat and barge industry, however, is when companies do not operate their vessels safely.  When companies are unsafe, when they fail to have a corporate culture focused on safety, from the chairman on down, it is these men and women, who serve as deckhands, engineers, captains, pilots, mates, and cooks, who can be seriously injured or killed.  I have been involved in maritime law for over two decades.  I have seen cases involving maritime workers who have suffered, for instance, electrocutions, amputations, and serious back injuries requiring the surgical fusing together of vertebrae and the surgical implantation of titanium rods and screws.

In my law practice, I endeavor to stay abreast of the changing landscape of the law, including state and federal statutes, regulations, and judicial decisions, which applies to the cases I used to defend, but now prosecute, when these hardworking men and women are injured or killed.  Through this blog, I intend to share with you some of these legal developments.  I hope you find the blog interesting and enlightening.

If you have questions you’d like to ask our lawyers 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.