Maritime Injury Lawyer Blog

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.

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.

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.

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.

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.

Attorneys representing injured workers under the Longshore Act and Jones Act are frequently faced with the dilema of determining the forum in which to prosecute the claim. Workers often perform some duties that are Jones Act seaman in nature and some duties that are Longshore in nature. I have been in the position where I could not predict with certainty whether the trier of fact would find the injured worker to be a Jones Act Seaman (crew member) or a Longshoreman (dock worker).

Fortunately, the law permits an injured worker to file a claim under the Longshore Act and later pursue a claim under the Jones Act. This was confirmed on January 26, 2010 in a case pending in a New Orleans federal District Court. The Court in Erroll Chouest vs. Offshore Marine, 2010 U.S. Dist. LEXIS 6018, confirmed an employee's receipt of benefits under the Longshore Act does not preclude subsequent litigation under the Jones Act. To the contrary, where the evidence is sufficient to send the threshold question of seaman status to the jury, it is reversible error to permit an employer to prove that the worker accepted Longshore benefits while awaiting trial. See, Tipton v. Socony Mobil Oil Co., 375 U.S. 34, 3784 S.Ct.1, 3, 11 L.Ed.2d 4 (1963). It is now "universally accepted" that an employee who receives voluntary payments under the Longshore Act without a formal award is not barred from subsequently seeking relief under the Jones Act.

Thus, an injured worker may collect Longshore benefits without waiving the right to later file a claim under the Jones Act. The ability to file under both the Longshore Act and Jones Act may also present the opportunity to get multiple insurance carriers to contribute to the settlement fund.

In Jones Act and Longshore cases I have handled throughout Ohio, Kentucky and West Virginia over the past year or so I have noted the Employer's lack of willingness to allow injured workers to return to light duty work. More and more I am seeing if an injured worker has any restrictions at all, the Employer does not allow them to return to work. You would think that allowing the injured worker to come back to a light duty position would be in everyone's best interest. Docks on Lake Erie that used to bend over backwards to get injured workers back on the job have taken the approach that they would rather pay the claim than have injured workers on their dock. Even without consideration of the Employer's obligation under the Americans with Disability Act, it would seem to make economic sense to get something out of the injured worker, rather than just pay them to stay home. I am hopeful that in the future, Employers will make a more responsible effort to accommodate injured workers and get them back into light duty positions.

Consider a dock worker, Longshoreman, deckhand or Jones Act seaman who performs repetitive manual labor. Day after day the Longshoreman may weld with his neck in an awkward and flexed position or the deckhand may lift heaving rigging. There may not be an accident or specific one day occurrence when an injury occurs but the cumulative effect of the repetitive work is nevertheless disabling.

When considering the causal relationship between the work and the injury, the Longshore Act and the Jones Act afford the laborer the opportunity to claim damages for an aggravation or exacerbation of what otherwise may be a naturally occurring condition. For example, many people develop arthritis as they age. Did the cumulative work "cause" the arthritis? Maybe not. Did the heavy repetitive work aggravate or hasten the develop of the arthritis? Probably. This is the most frequent medical issue I deal with in representing injured Jones Act seaman and Longshoremen.

When dealing with your physician you should be careful to fairly, accurately and thoroughly describe the nature of your heavy work. This may assist your physician with offering an informed decision on whether your work caused or aggravated, exacerbated or hastened the development of the condition.

As an attorney practicing maritime law in Kentucky, Ohio and West Virginia regarding injuries occurring on inland waterways including the Ohio River, Lake Erie, Kentucky River, I frequently receive calls regarding the type of benefits injured workers' are entitled to receive. Jones Act seaman (crewmembers, deckhands, engineers, pilots, mates, strikers, etc.) are not eligible to receive Longshore, Kentucky, Ohio or West Virginia state workers' compensation benefits. The injured river worker is entitled to maintenance (a daily stipend based upon daily room and board costs) and cure (medical treatment) until maximum medical improvement is reached. Some companies have short term disability insurance coverage as an employee benefit. If the injured Jones Act Seaman is covered by a short term disability policy, he/she may recover policy benefits in addition to maintenance payments. If the worker can establish negligence on the part of the employer or vessel owner or if the vessel is unseaworthy, he/she can potentially recover a full array of money damages under the Jones Act and General Maritime Law. Under some circumstances, Jones Act seaman come out much better than workers covered under state workers' compensation. If the worker is injured without there being any negligence on the part of the towboat company or vessel owner, the worker may well be worse off than under state workers' compensation. If you are injured on the inland waterways, river or Lake Erie, you should have your case evaluated to check your employment status and how to best maximize your recovery.

The Indiana legislature is considering legislation that would allow riverboat casinos on the Ohio River and Lake Michigan to move inland. When the casino riverboats would travel away from the dock, injured crewmember, injured deckhands, and other injured workers were covered under the Jones Act. When the Indiana legislature amended the law to permit the casinos to remain at dock, most of the employees lost their Jones Act status. Most injured workers on floating casinos have also been excluded from coverage under the Longshore Act. However, the nature of the injured workers' duties on tugboats at the landing, or on the dock itself may qualify for Jones Act or Longshore coverage. If the Indiana legislature permits casinos to move inland, the opportunity to establish Jones Act and Longshore coverage will be eliminated.