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.

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.

When a worker is injured while entering or exiting a vessel, an attorney has to determine whether the claim is covered by maritime or state law. The jurisdictions are split on whether an injury occurring on a ramp or gangway falls under state law or maritime law. Jurisdiction will likely turn on the specifics of the gangway or ramp and its connection to the vessel, or to land based structures.

On February 16, 2010 a federal Judge in New York reviewed the facts of a gangway injury claim and ruled the claim did not fall under maritime jurisdiction. The decision includes an excellent discussion of the law on this issue. In The Matter of the Complaint of MLC Fishing, Inc., As The Owner of the Vessel Capt Mike, 2010 U.S. Dist. LEXIS 13030

On or September 22, 2007, crew member Velez suffered injuries at Captain Mike's Marina in Howard Beach, New York. Velez fell, due to the alleged slippery, slick, greasy, oily, traplike, dangerous and hazardous condition of the ramp.

In order to board the CAPT MIKE from the marina, Velez was required to descend a metal ramp which was neither attached permanently to the land nor to the CAPT MIKE. The ramp leads to a floating dock, which had to be traversed to access the steps to
the CAPT MIKE. Because of the accident, Velez never boarded the CAPT MIKE.

A federal court's authority to hear cases in admiralty flows initially from the Constitution, which 'extends' federal judicial power 'to all Cases of admiralty and maritime jurisdiction.The traditional test for admiralty tort jurisdiction asked only whether the tort occurred on navigable waters. If it did, admiralty jurisdiction followed; it if did not, admiralty jurisdiction did not exist. The Extension of Admiralty Jurisdiction Act of 1948 extended jurisdiction to include all cases of damage or injury, to person or property, caused by a vessel on navigable waters,notwithstanding that such damage or injury be done or consummated on land. Therefore, the tort must either occur on navigable waters or be caused by a vessel on navigable waters.

If the Ramp on which Velez was injured was considered part of the CAPT MIKE vessel, there is a connection with maritime activity. In the most analogous case found by both the parties and the Court, the answer was no. In Dobrovich v. Hotchkiss, 14 F. Supp. 2d 232 (D.Conn. 1998), the Court faced the question of "whether a ramp leading to floating docks, which must be traversed to reach the location where the ship is moored, should not be considered an extension of the land. Under the Admiralty Extension Act, "[w]hen it is a ship's gangway that is defective, it can be said that the vessel caused the injury." Id.; accord Victory Carriers Inc. v. Law, 404 U.S. 202, 20792 S. Ct. 418, 30 L. Ed. 2d 383 (1972) ("The gangplank has served as a rough dividing line between the state and maritime regimes."). The Dobrovich court found that a ramp is not a gangway. The court was persuaded by the physical attenuation of the vessel from the ramp, separated as they were by floating docks (no maritime jurisdiction where injury occurred on floating walkway connecting dock to land).

The Judge in Valez refused to extend admiralty jurisdiction by defining a gangway as including a ramp separated from the vessel by floating docks. The Court ruled the claim did not fall under maritime law.

The Valez case illustrates the importance of fully exploring all of the facts surrounding an accident on or near navigable waters. An injured workers' rights (and an employer's defenses) can be substantially different under state and federal law. If you are injured and wish to have an analysis of your potential rights, please feel free to call Steven Schletker (800) 254-7487.

Deckhands injured on inland river tow boats or Great Lakes vessels are frequently asked to give a written or oral statement to their employer or the insurance company. Be careful what you put into the accident report. What you say can and will be held against you. An injured deckhand found this out the hard way on February 17, 2010. His case was dismissed based upon the content of a statment he signed prior to filing suit and prior to hiring an attorney. Kurpiel vs. Calumet River Fleeting, Inc. (Northern District of Illinois) U.S. Dist. LEXIS 13710

Plaintiff Kurpiel filed a complaint against Calumet River Fleeting, Inc. (Calumet), seeking damages for injuries he sustained within the scope of his employment with Calumet. Calumet filed a motion for summary judgment (dismissal upon consideration of depositions and other evidence).

Calumet hired Mr. Kurpiel as a deckhand aboard the M/V John M. Selvick in 2007. While on the job Kurpiel slipped on ice covered steps on the Selvick.

After the injury, the employer took a statement from Kurpiel. In his signed statement Kurpiel stated (no doubt with much coaching from the company's claims adjustor) that he did not know if he slipped or just turned his ankle. He also stated that there were rails on both sides of the steps, that all six steps had non-skid paint on them, that the area was well lit, and that the wheelhouse stairs had been salted and taken care of by the other deckhand during the earlier shift. According to Kurpiel, the deckhands were responsible for salting the deck and stairs and keeping them clear of snow and ice. On board the vessel, the crew had shovels, sledgehammers, and salt available to remove any snow accumulations. According to the statement, Kurpiel said that shortly after his fall, the crew checked the stairs and surrounding area and that both "were still okay from the salting." He also stated, "This was a freak accident that I do not think could have been
avoided. There was nothing that could have been done that had not been done."

Although the injured deckhand later clarified the hazardous conditions under which he was working, the Judge dismissed the case in large part based upon the statement. When a worker is injured he/she feels at the mercy of the employer. The injured worker is not familiar with the process and is typically unrepresented by council. He/she will frequently sign anything just to get the interview to end and to keep wage replacement, maintenance payments or other money flowing. The lesson to be learned is be very careful what you put in a statement. Even if you later retain council who places the negligent activities of the employer into the record, you may not be able to escape the earlier signed statement.

If you have been injured on the job for a maritime employer, please feel free to call Steven Schletker (800) 254-7487 for a free consultation. Also, please feel free to do so before you give a statement to your employer or their insurance adjustor.

One of the most difficult decisions facing a Jones Act attorney is deciding which defendant(s) to sue. Leave one potential defendant out and you risk having the defendants who are sued point the finger at the empty chair at trial. Add one defendant too many, and you are faced with defending Motions to Dismiss and Motions for Summary Judgment.

An attorney and injured tankerman were faced with this decision in a New Orleans Federal Court.The tankerman was injured while employed by Cenac Towing aboard the M/V DUSTIN CENAC on October 26, 2007, at the # 2 dock of the Valero Corporation's facility at Norco, Louisiana. The injured worker was completing the loading procedure of the barge when Valero's dock man prematurely began lifting the loading arm and the tankerman became pinned between the arm and a winch located on the barge.

The injured tankerman added his employer (Cenac Towing) as one of the defendants in the suit alleging negligence under the Jones Act. At the close of discovery, Cenac Towing filed a motion for summary judgment.

The Jones Act provides a seaman a cause of action for injuries sustained as a result of an employer's negligence. To show liability, a plaintiff must show negligent breach of duty and proximate cause that is imputed to the employer. Even the slightest employer negligence is sufficient for a finding of liability to an injured seaman. The issue of proximate cause turns on whether the employer's actions contributed even in the slightest degree and is not destroyed merely because the plaintiff also contributed to his injury. A Jones Act employer is not an insurer of a seaman's safety; the mere occurrence of an injury does not establish liability.

In the present case, the Judge ruled that nothing presented in the complaint, memoranda, or accompanying depositions suggested any negligence on behalf of Cenac Towing. The injured tankerman's attorney suggested the possibility of negligence on behalf of the Valero employee who was operating the loading arm, as well as potential unseaworthiness as a result of the loading arm allegedly malfunctioning. The injured worked testified nothing done by the Cenac Towing vessel's crew did anything to contribute to his injury. He also testified that Cenac's equipment was in working order. He was not critical of anything Cenac Towing did or did not do in relation to his injury claim. On February 12, 2010, the Federal Judge ruled no material issue of fact existed as to whether Cenac Towing was negligent. Cenac Towing's Motion for summary judgment was granted. The Jones Act case against CenacTowing was dismissed.
Brown v. Cenac Towing Co., 2010 U.S. Dist. LEXIS 12659

If you have been injured within the scope of your employment on an inland river or one of the Great Lakes and wish to have an analysis performed to determine potential defendants in your case, feel free to call Steven Schletker at (800) 254-7487 for a free consultation.

Construction is moving forward on another Ohio River hydroelectric generating station. The project is providing work for numerous skilled maritime workers. Depending on the status of their job duties, those workers may be covered by the Jones Act, Longshore Act or State workers' compensation. Those workers assigned as crew members on towboats servicing the construction project may be covered by the Jones Act and General Maritime Law. Workers who are assigned to floating platforms, barges and other adjacent maritime areas who are not permanently assigned as crew members in navigation may be covered by the Longshore Act. Workers who reach their work station by crossing permanent land structures may be covered by state workers' compensation. Of course, it is not possible to give a blanket description of all workers covered by a particular compensation scheme. Each person's work experience, job duties and case is different. A personal review of your case will be required before hard advice can be given on whether to file under the Jones Act/General Maritime Law, Longshore Act or under state workers' compensation. If you are injured within the scope of your employment while working on the Cannelton Locks and Dam hydroelectric project, or another maritime site, please feel free to call Steve Schletker (800) 254-7487 for a free consultation.

Attorneys handling Jones Act and Longshore cases in Kentucky, Ohio and West Virginia are finding that employers frequently spend large amounts of money to avoid paying modest injured worker claims. The insurance industry perpetually complains about the so called litigation crisis but then acts in a fashion that insures claims will be filed. Many injured workers are forced to hire an attorney to obtain payment of very modest medical bills or small amounts of compensation. The employer typically pays minimal benefits for a brief period of time and then pulls the rug out from under their injured worker. If this happens to you, do not be discouraged. The fact that payments have stopped does not necessarily mean your case is flawed. Employers terminate benefits in even the best cases. Jones Act employers, vessel owner and Longshore employer have the resources to wait the injured worker out. Protect yourself and be prepared. If you have been injured on the river and wish to discuss your potential claim please call for a free consultation.

The Jones Act gives attorneys the ability to file a lawsuit for an injured deckhand or maritime worker in state court or federal court. The venue provisions of the Jones Act afford lawyers filing in federal court quite a bit of flexibility on where to file suit. If the Jones Act case is filed in state court, options of where to file suit are more limited.

This scenario rose up to bite a Jones Act seaman on January 29, 2010 in the United States District Court for the Western District of Pennsylvania. Reichert vs. Mon River Towing, Inc. 2:09-cv-1493. 2010 U.S. Dist. LEXIS 7491.

The injured worker's lawyer initially filed suit in state court in Ohio. Counsel for Mon River Towing filed a motion to dismiss for lack of personal jurisdiction and, alternatively, due to forum non conveniens. In its brief, Mon River acknowledged that it occasionally dropped off barges for repair at a landing on the Ohio River in East Liverpool, Ohio. Mon River contended, however, that Reichert's accident had occurred in West Elizabeth, Pennsylvania, over fifty miles away from Columbiana, Ohio, and that the vessel and crew were maintained and primarily located in Pennsylvania. The Judge ruled the case involved a Pennsylvania resident who is suing a Pennsylvania corporation for an incident
that occurred in Pennsylvania. The state court Judge dismissed the case.

The injured worker's attorney refiled the case in federal court but did so more than 3 years after the date of the accident.The parties agreed that the statute of limitations for filing a personal injury claim under the Jones Act is three years, as provided in 46 U.S.C. § 30106. The issue of the federal case was whether the 3 year statute of limitations was tolled by the filing of the case in Ohio state court.

The federal Judge ruled it was not reasonable for the Plaintiff to have initiated the lawsuit in an Ohio state court. The Judge indicated the case involves a Pennsylvania plaintiff, a Pennsylvania defendant, and an accident that occurred in Pennsylvania, over 50 miles from Ohio. The Judge noted the lack of connection to Ohio - the accident did not even occur on the Ohio River. The federal Judge ruled the filing of the Ohio state court case did not toll the statute of limitations. The federal case was also dismissed.

If you are injured on the inland waterways or Great Lakes, be mindful of where your case is filed.

If you are injured at work on the Kanawha River, Ohio River or Lake Erie you have the right to select your own treating physician. Don't let a lawyer for your Great Lakes or river employer select your treating physician. Whether you are in Point Pleasant, West Virginia, Maysville Kentucky or Sandusky, Ohio your employer will be able to locate a physician with an impressive looking multiple page resume who will basically say whatever they want him/her to say. The physician selection process will likely be controlled more by who will provide helpful reports to the employer's litigation position, rather than who will be best able to provide the best care.

Jones Act and Longshore employer have the right to select a physician (who typically is anything but independant) to provide an independent medical examiation (IME). Lawyers for injured workers frequently refer to these as defense medical examinations. Although the employer can select the IME physician, it cannot force the selection of your TREATING physician. Choosing a treating physician is critically important for the injured worker. Don't pass that right over to your employer. You should select your own treating physcian.

If you have any question regarding your right to manage your medical treatment, please feel free to call Steve Schletker at (800) 254-7487 for a free consultation.

When a claim is filed by an injured maritime worker, the defense attorney will cull the record to find a way to avoid paying the claim. The lawyers who defend claims in Kentucky, Ohio and West Virgina are very adept pointing the finger at the victim. Stay safe and in so doing, protect your claim.

A Warrick County employee was recently boating on the Ohio River when he hit something and was pitched out of his boat into the freezing water. He was not wearing his life jacket at the time. He kept his wits and stayed alive until he was rescued. If litigation is filed, his failure to wear a lifejacket may eliminate or greatly reduce his recovery. Failing to wear a lifejacket provides a silver platter defense to maritime employers and their attorneys.

Personal flotation devices can be cumbersome, unwieldy and uncomfortable, true. However, as a deckhand, mate, engineer or pilot, they are your best friend if you end up in the water. They can mean the difference between filing a Longshore claim for injuries versus a widow's claim for death benefits. If you have your lifejacket on, you will dramatically enhance your chances of minimizing your injury and winning your claim.

Do it safe and smart. Wear your lifejacket.

The Ohio River Valley Water Sanitation Commission has identified the Ohio River and tributaries including the Kanawha River as the most polluted waterways in the nations. Tug boat and barge companies can expect even closer scrutinty of their discharge of pollutants into the Ohio River and Kanawha River.

Whistleblower cases have been filed against tow boat companies and pilots for dumping bilge into the river in Ohio, West Virginia and Kentucky. Bilge must be emptied in a manner approved by the Coast Guard. In several of the cases, criminal charges have been filed against the crew members by the U.S. attorney. Do not discharge bilge or other pollutants into the river, even if you are ordered to do so by your pilot or the home office. Each crewmember is responsible to uphold clean water laws and Coast Guard rules.