Maritime Injury Lawyer Blog

The Ohio River is expected to reach 52 feet which is flood stage in the Cincinnati Harbor on March 15, 2010. The river is expected to rise approximately 8 feet from Sunday March 14th to Monday March 15th. Jones Act crews and Longshore dock workers are busy preparing for the extra work occasioned by the rapidly rising river level. It is not unusual to see barges break away from Ohio River landings under these type of conditions. Unfortunately, Ohio River dock owners and vessel owners typically do not add extra crew personnel to assist with the additional work load. Jones Act and unseaworthiness liabiliity claims can be established by proving the Jones Act employer or vessel owner failed to provide for adequate crew members to handle emergency situations such as rapidly rising or falling pool levels and flood waters. If you have been injured as the result of an inadequate number of crew members please feel free to call Steve Schletker at (800) 254-7487 for a free consultation.

Opening Lake Erie shipping lanes as scheduled will help lengthen the loading and unloading Longshore season on maritime docks. The Coast Guard conducted ice-breaking operations in Sandusky Bay this week in order to keep ships moving in and out of Sandusky Bay. Icebreakers have been working the waterways to keep them jam-free. The shipping season will resume March 25 when the Great Lakes are reopened to major traffic.

Beaver County officials are working on the development of an Ohio River Port Authority. The Authority would facilitate projects such as the construction of docks on the Ohio River. Commercial river docks are used to load and unload a number of commodities along the Ohio River including coal, grain and rock salt. Workers engaged in the loading or unloading of products at these facilities would likely be covered by the federal Longshore and Harbor Worker Compensation Act. These type of jobs are difficult and dangerous. Accidents are an inevitable consequence of performing such dangerous work. If you have been injured in an occupation on the inland waterways including the Ohio River and Great Lakes, please feel free to call Steven Schletker for a free consultation.

The 5th Circuit Court of Appeals confirmed that ship construction workers are not covered under maritime law. Casas v. U.S. Joiner, 2010 U.S. App. LEXIS 5099, March 10, 2010.

Casas, an employee of Land Coast Insulation, Inc., tripped, fell, and was injured while installing insulation in a compartment of an amphibious transport dock (LPD-19) under construction in Northrup Grumman's Pascagoula, Mississippi shipyard. Casas brought maritime tort claims as well as Mississippi state law tort claims against Northrup Grumman and U.S. Joiner.

28 U.S.C. § 1333(1) gives district courts original jurisdiction over "any civil case of admiralty or maritime jurisdiction." A party seeking to invoke admiralty jurisdiction over a tort claim must show that the tort has (1) a "maritime situs" and (2) a "maritime nexus" (i.e., that the alleged wrong bears a "significant relationship to a traditional maritime activity"). The district court found that Casas' tort claim had no maritime nexus because U.S. Joiner's alleged negligence arose in the context of shipbuilding, which is not a maritime activity. The Fifth Circuit affirmed the District Court's holding that an injury to a worker on board a ship under construction and lying in navigable waters is not a maritime tort.

Ship construction workers may, however, be covered by the Longshore and Harbor Workers' Compensation Act.

Longshore cases are tried before Administrative Law Judges. Attorneys who practice Longshore cases have been very interested in the change of leadership at the Office of Administrative Law Judges National Office.

Chief Administrative Law Judge John M. Vittone retired on March 3, 2010. Judge Vittone joined the Department of Labor as Deputy Chief Judge in 1987, and was appointed Chief Judge in 1996.

Judge Stephen L. Purcell has been selected to serve as Acting Chief Judge.

Judge Daniel F. Sutton from the Boston District Office will serve as the Acting Associate Chief Judge for Longshore.

Judge William Colwell will continue to serve as Associate Chief Judge for Black Lung and Immigration.

Defense Base Workers - Civilian Contractor families are suffering in a manner very similar to families of our uniformed soldiers. A former Marine turned civilian contractor returned from Iraq in 2006 and killed himself. Not only has the family lost a husband and father, but they have had to fight with KBR and AIG insurance company to obtain Defense Base Act workers' compensation death benefits. Very little attention has been given to the mental health of thousands of contractors returning from Iraq and Afghanistan. The families of civilian contractors who have committed suicide have been slogging through the Defense Base Act trying to get death benefits. Injured workers frequently have to battle insurance carriers for the most basic medical coverage. The military allows families to receive benefits when a soldier's suicide is linked to depression caused by battlefield trauma. Contractor's families do not enjoy similar support and are frequently required to fight it out in court to obtain the benefits they deserve. If you or a loved one worked as a Defense Base Act civilian contractor and have suffered a physical or psychological injury, please feel free to contact Steven Schletker, (800) 254-7487 for a free consultation.

Ashtabula, Ohio and Toledo, Ohio sought out experienced longshore workers, International Longshore Association union officials and maritime professionals to serve on their Port Authority boards. Other Port Authorities have been less successful placing longshoremen on their boards.

Suit and tie men have much to contribute to local Port Authorities. Their business skills are necessary to the formation of a successful organization. Blue collar longshoremen have much to contribute as well. International Longshoremen Association officer, Mr. Dick Gabel, serves on the Toledo Port Authority. He is a valuable resource for his non-maritime colleagues on the Board. The knowledge Mr. Gabel has gained from many years of work on the docks cannot be learned in business school. In addition to bringing hands-on expertise to problems that may develop, he is there to speak for working men and women.

The Cleveland-Cuyahoga County Port Authority has not taken advantage of the wealth of longshore talent and expertise at their disposal. Cleveland is rich with maritime workers and longshoremen who would be valuable contributors to the Port Authority. The experience of Ashtabula and Toledo should serve as a roadmap to Cleveland in making use of the maritime talent at their disposal.

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This past week, a District Judge in New Orleans granted Summary Judgement in a case involving an injured deckhand's claim for maintenance and cure. The injured deckhand fell down a flight of stairs aboard the M/V INTERNATIONAL SCOUT. He injured his neck and upper back in the fall.

"Maintenance" includes the per diem living allowance provided to seaman and "cure" is the payment of therapeutic, medical and hospital expenses.

The maritime employer's duty of maintenance and cure dates at least to the medieval sea codes. The duty obligates the maritime employer to pay for the lost wages, medical care, food, lodging, and other incidental expenses of a mariner who falls ill or is injured while in the service of a vessel. The duty is practically absolute. Unlike an employer's duties under the Jones Act, for example, liability for maintenance and cure is "in no sense ... predicated on the fault or negligence of the shipowner." Because the duty is so broad, maintenance and cure has at times been compared to mandatory employer-provided health and accident insurance.

In keeping with the absolute nature of the right, a plaintiff's burden of proof on a maintenance and cure claim is slight: he need only establish that he was injured or became ill while subject to the call of duty as a seaman. It is not necessary for the plaintiff to show that his injury or ailment originated during the term of his employment. The employer is liable even for pre-existing conditions that manifest themselves during the voyage. Generally, the maritime employer's obligation to provide maintenance and cure ends when a doctor provides a qualified medical opinion that plaintiff has reached maximum medical improvement. Ambiguities or doubts in the application of the law of maintenance and cure are resolved in favor of the seaman.

The vessel owner/employer did not dispute that it owed cure benefits. Instead, it argued: (1) it has already paid many of his medical bills; (2) it intends to pay for others but has not yet done so because they are currently being audited; and (3) the injured deckhand had not provided sufficient information for International Marine to pay him for certain medical expenses.

The injured deckhand filed a Summary Judgement (decision without a trial) asserting he was entitled to win because there were no issues of genuine of material fact with regard to payment of the medical bills. The Judge agreed. The employer argued the bills were under audit and review. The Court ruled that the employer had over a year to review and audit the medical bills and, as such, it was appropriate to Order them paid without further delay. To say that an "audit" of these small charges is in progress for more than 12 months without an explanation as to why does not create an issue of fact.

Vessel owners frequently ignore their obligation under maritime law to provide maintenance and cure. While it is refreshing to see a federal Judge Order the payment of bills without a full blown trial, a large award of attorney fees and penalties might disuade vessel owners from doing it in the future.

The Indian Head Rock is an eight-ton bolder that for years sat on the bottom of the Ohio River near Ironton, Ohio - Ashland, Kentucky. Three years ago an Ironton, Ohio historian implemented a plan to remove the Indian Head Rock from the Ohio River. Kentucky officials believe the State of Kentucky is the rightful owner of the bolder and argue the rock was improperly removed from the Ohio River. After three years of motions, discovery and pleadings, a trial has been set before U.S. District Judge Henry R. Wilhoit Jr. to occur on May 11. A motion filed by the attorney who represents the historian argues any dispute involving items taken from the Ohio River becomes one between states, putting it in the exclusive jurisdiction of the U.S. Supreme Court. Judge Wilhoit will have his hands full sorting this one out.

McGinnis Inc., received a preliminary permit to investigate the potential of building an Ohio River hydroelectric generating station at the New Cumberland Locks and Dam.

New Cumberland Locks and Dam is located on the right descending bank of the Ohio River, just off Ohio State Route 7 at the small town of Stratton, Ohio. Across the river and two miles downstream lies New Cumberland, WV, the originally planned site of the lock and dam, and hence its namesake. The tall stacks and white steam of the coal-fired Ohio Edison Sammis Power Plant between Stratton and neighboring Port Homer tower over the project.

The Plan calls for placement of massive turbines on a vessel structure in the Ohio River. The force of the Ohio River will spin the turbines and generate electricity. McGinnis would then sell the electricity to a power plant.

This business opportunity may well create additional crew member and longshore jobs on the Ohio River. The project is a win-win. Best of luck to McGinnis and to their dedicated work force who will implement the plan.

The 1,200 foot long main chamber at Markland Locks and Dam on the Ohio River between Louisville, Kentucky and Cincinnati, Ohio is scheduled to reopen on March 1, 2010. Traffic had been limited to the auxiliary chamber since September. This resulted in long delays for towboats waiting to lock through and created additional labor for already overworked towboat crews. The reopening of the main chamber will be welcomed by industry and labor.

After 3 1/2-weeks the main lock chamber at Greenup Locks & Dam (down river from Ashland, Kentucky - Huntington, West Virginia) has been re-opened to river traffic effective Monday February 22. The main lock closed on January 27 when an anchorage support on one of the gates broke. The 240-ton gate was repaired, inspected and reinstalled on February 19.

On February 23 - 25 the Army Corps of Engineers will hold a series of meetings to discuss balancing environmental versus commercial usage of the Ohio River. Industry and commercial docks are located throughout the Ohio River basin. Given the scarcity of available jobs it is of maximum importance to offer assistance to create a business friendly environment for industry. Industry must then share the benefits afforded by government with the laborers who actually perform the work that earns the company profits. Governor Strickland has pledged to work in concert with industry and labor to facilitate the creation of jobs, while at the same time preserving the integrity of the Ohio River Basin. Practicing maritime law, I have seen many occasions where management attempts to cut working men and women out of the fruits of good times. It is of great importance that the Army Corps of Engineers meetings facilitate cooperation between government, industry and labor.

In 2006 Mr. Tate Mallory was working as an overseas civilian contractor in Iraq when he was seriously injured by a rocket propelled grenade. On February 17, 2010 he received the Defense of Freedom Medal in recognition of his service to the United States.

Civilian contractors provide invaluable support for our troops fighting in Iraq and Afghanistan. They perform services such as repairing personnel transport vehicles and delivering water to thirsty Marines in Forward Operating Bases. Their work frees up our men and women in the military to perform combat operations.

Injured civilian contractors such as Mr. Mallory are typically not treated within the VA system but rather are covered by the Defense Base Act. The Defense Base Act is administered by the United States Department of Labor, Office of Workers' Compensation Programs. AIG affiliated insurance companies underwrite much of the medical care given to civilian contractors injured overseas. In addition to having to deal with the trauma of war zone injuries, wounded civilian contractors are often caught up in a maze of red tape generated by insurance company case managers, insurance company "independent" medical examiners and insurance company adjustors.

As a tribute to Mr. Mallory and all injured civilian contractors, Congress should provide adequate oversight to the Defense Base Act to insure proper compensation and medical benefits are provided.

If you are a civilian contractor and have suffered an injury overseas or on a domestic military base, please feel free to contact Steven Schletker at (800) 254-7487 for a free consultation of your rights under federal law.

Congratulation to Mr. Mallory and thank you for your service to our country.

A Florida State Court of Appeal recently upheld a forum selection clause in an admiralty case filed by an injured passenger on a cruise ship. Thomas Leslie, etc., et al. vs. Carnival Corp., etc., et al. 2008 AMC 380; Released for Publication November 25, 2009. Rehearing denied by Leslie v. Carnival Corp., 2009 Fla. App. LEXIS 19126

The Florida Court of Appeal was called upon to determine whether the Florida state trial court erred by enforcing a forum-selection clause in form contracts issued by Carnival Cruise Lines

The clause directs that passenger law suits arising out of a passenger's cruise
be filed exclusively in the United States District Court for the Southern
District of Florida. The express language of the clause reads:

"It is agreed by and between Guest and Carnival that all disputes
and matters arising under, in connection with or incident to this
Contract or the Guest's cruise, including travel to and from the
vessel, shall be litigated, if at all, before the United States
District Court for the Southern District of Florida in Miami, or as to
those lawsuits to which the Federal Courts of the United States lack
subject matter jurisdiction, before a court located in Miami-Dade
County, Florida, U.S.A. to the exclusion of the Courts of any other
county, state or country."

The Carnival passenger filed a personal injury suit in Florida state court. Citing federal law, the Florida State Court of Appeals held that Carnival's forum-selection clause is valid and enforceable. The Florida Court of Appeals cited M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 1292 S. Ct. 1907, 32 L. Ed. 2d 513 (1972) (The Bremen), which held that forum-selection clauses are prima facie valid and enforceable under the general maritime law. In so holding, the United States Supreme Court was mindful that ocean-going vessels travel through many jurisdictions, thus potentially becoming subject to the laws of a particular jurisdiction based solely upon a fortuitous event of an accident.

Forum selection clauses are included in most cruise ship tickets. The bottom line is if you or your client are injured on a cruise ship, you will likely be faced with the prospect of having to litigate your case in the forum of the cruise ship's choosing.

I am seeing forum selection clauses with greater regularity. An injured passenger or cruise ship worker does not negotiate the terms of a forum selection clause. It is unfair to limit the rights of the individual injured passenger or cruise ship worker to protect the multi-million dollar corporation that runs the cruise ship. This is another example of the erosion of the ability of an individual to hold corporations liable for their misdeeds and negligence.