Tag Archives: Pittsburgh maritime lawyer

$400,000 Judgment for Seaman’s Pre-Death Fear and Conscious Pain and Suffering Affirmed on Appeal

In McBride v. Estis Well Service, L.L.C., 2017 WL 1321979 (5th Cir. Apr. 10, 2017), Sky Sonnier, a crewman on a barge supporting a truck-mounted drilling rig operating in Louisiana navigable waters, was killed when the rig and truck toppled over, pinning him between the derrick and mud tank.  The Fifth Circuit Court of Appeals affirmed the district judge’s finding that Sonnier’s survivors were entitled to recover $400,000 in damages for the fear he experienced trying to avoid the impact and the few minutes of conscious pain and suffering he endured before he expired.  The appeals court wrote:

“As to pre-death conscious pain and suffering, the pathologist who performed the autopsy on Sonnier testified that Sonnier could have been conscious and aware for up to five minutes after impact, but was more likely than not conscious for one to two minutes after impact. Moreover, witness testimony claimed that Sonnier was alive and gurgling blood shortly after impact, and the district court appears to have found this testimony credible.”

The appellate court noted that the Jones Act enables a plaintiff to recover damages for pre-death pain and suffering, and that “[c]ompensable pain and suffering includes a victim’s ’emotional injury caused by fear of physical injury to himself.'”  For a plaintiff to recover damages for a decedent’s post-injury pain and suffering, “he ‘must prove, by a preponderance of the evidence, that the decedent was conscious after realizing his danger.'”

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Our law firm, Goldsmith & Ogrodowski, LLC, focuses its practice on protecting the legal rights of commercial vessel crewmembers and their families. We are experienced at bringing lawsuits for negligence under the Jones Act and, under the general maritime law, claims for negligence, unseaworthiness, and maintenance and cure, when a crewmember has been seriously injured or killed.

If you have questions about this court opinion, or your or your family’s legal rights under admiralty and maritime law, call or write us for a free consultation at 877-404-6529, 412-281-4340, or info@golawllc.com. We invite you to learn more about our lawyers and our law firm on our website, http://www.golawllc.com.

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Federal Appeals Court Affirms Unseaworthiness Findings and $1.2 Million Pain & Suffering Damages to 52-Year-Old Tug Crewman

I posted in Towboatlaw on this case in January 2013, four days after U.S. District Judge Nina Gershon entered her decision in Harrington v. Atlantic Sounding Co., 2013 U.S. Dist. LEXIS 2988 (E.D.N.Y. Jan. 7, 2013), finding Atlantic Sounding Co., Inc. and Weeks Marine, Inc. negligent under the Jones Act and the tug CANDACE unseaworthy under the general maritime law.   She found no contributory negligence and awarded Frederick J. Harrington Jr., 52 at the time of the accident, $478,948 in past lost wages and loss of future earning capacity, $500,000 for past pain and suffering, and $700,000 for future pain and suffering.  The defendants appealed to the U.S. Second Circuit Court of Appeals.

Three days ago, in Marasa v. Atlantic Sounding Co., 2014 U.S. App. LEXIS 1073 (2d Cir. Jan. 21, 2014) (unpub.), this appeals court largely affirmed the judgment, which, with prejudgment interest, totaled $1,727,471.16.  The Second Circuit only reduced the judgment by $16,308, the sum which the defendants previously paid pursuant to a Claim Arbitration Agreement.

Of particular interest in the appeals court’s decision is its approval of the trial court’s findings in favor of the injured crewman on his claim for general maritime law unseaworthiness, and the trial judge’s award of $1.2 million for past and future pain and suffering damages.

As to unseaworthiness, the Second Circuit wrote how its precedent has long held that a vessel can be unseaworthy if its crew is inadequately trained: “Our precedent recognizes that ‘a vessel being operated by an incompetent captain or crew is considered unseaworthy,'” citing Complaint of Messina, 574 F.3d 119, 127 (2d Cir. 2009), Matter of Guglielmo, 897 F.2d 58, 61 (2d Cir. 1990), Tug Ocean Prince, Inc. v. United States, 584 F.2d 1151, 1155 (2d Cir. 1978), and 1B Benedict on Admiralty § 24 (2004) (recognizing that “an unseaworthy condition . . . on an otherwise fit vessel” can be created by “incompetent training or experience” or “unsafe method of work”).

In affirming Judge Gershon’s assessment of $500,000 in past and $700,000 in future pain and suffering damages, the Second Circuit found, first, that even though the injured crewman, Frederick J. Harrington Jr., died while the appeal was pending (Madeline Marasa is the personal representative of Harrington, in whose name the appeal was defended), the defendants were unentitled to a reduction in his estate’s future pain and suffering damages award.  Second, the appeals court discussed how the trial court found “Harrington’s injury resulted in extraordinary pain and suffering, requiring multiple spinal surgeries and daily medication.”  Judge Gershon had described in detail Harrington’s two back surgeries and the many activities he could no longer perform, given his injuries.  Accordingly, the Second Circuit did not find the $1.2 million pain and suffering damages award excessive, and affirmed.

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Our law firm, Goldsmith & Ogrodowski, LLC, represents crewmen 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.

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.

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.