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.

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.

In yesterday's post I discussed the dismissal of an injured Jones Act deckhand's claim against a company that did not own the barge he was injured upon.

As discussed yesterday, the injured deckhand worked for Lower Illinios Towing. He was hired by Cargill to assist with opening a roll-top cover on an ACL barge.

The injured deckhand alleged the barge was unseaworthy, and that ACL, as the barge's owner, was liable for this breach of duty. ACL argued the duty to provide a seaworthy vessel (discussed in yesterday's post), does not extend to seamen who are not members of the vessel's crew.

On February 11, 2010 the federal Judge ruled ACL is also entitled to summary judgment on the unseaworthiness claim. A Jones Act seaman, who possesses the full range of traditional seamen's rights and remedies, cannot maintain a seaworthiness action against a vessel on which he is not a crew member. The injured deckhand was not employed by ACL. The deckhand was employed by Lower Illinois, and was a member of the crew of the "Tom Edwards." He had never been employed by ACL, and that he was not part of the barge's crew.

Accordingly, ACL did not owe the injured deckhand a warranty of seaworthiness. The Court granted ACL's Summary Judgement Motion and dismissed the injured deckhand's unseaworthiness claim agains the vessel owner, ACL.

McEuen v. Lower Ill. Towing Co., 2010 U.S. Dist. LEXIS 12027

A Jones Act deckhand's unseaworthiness claim against a company that did not own the barge he was injured upon was dismissed by a federal Judge in Illinois on February 11, 2010.

The deckhand was injured while opening a roll-top barge cover on the Illinois River in Florence, Illinois. The injured deckhand worked aboard the "M/V Tom Edwards," a tugboat owned and operated by Lower Illinois Towing Company.

Part of Lower Illinois' business was switching, cleaning, and fleeting barges for American Commercial Lines (ACL). Lower Illinois also occasionally performed work for Cargill including opening roll-top covers on barges at the grain elevator when Cargill was busy, or when Cargill personnel had trouble rolling the covers themselves.

ACL owned Barge 3272 which was docked for loading at Cargill's grain elevator on the Illinois River in Florence, Illinois. The injured deckhand was a crewmember the M/V "Tom Edwards." Cargill hired Lower Illinois' to open the roll-top covers on the Barge so the cargo box could be filled with grain. The deckhand was injured while working on the ACL barge at Cargill's facility.

Cargill moved for Summary Judgment alleging the injured deckhand cannot sustain an unseaworthiness claim against it because Cargill neither owned nor chartered the Barge in question. Plaintiff admits Cargill did not own the Barge, but argued that Cargill owed him a duty of seaworthiness by virtue of its use and control of the darge.

The doctrine of seaworthiness imposes an absolute, non-delegable duty resulting in strict liability for any injuries caused by a vessel's unseaworthiness. This duty requires a vessel and its appurtenances be reasonably fit for their intended use.
The duty to provide a seaworthy vessel is imposed only on the vessel's owner, or the vessel's owner pro hac vice. An owner pro hac vice is an individual who stands in the place of the owner for the voyage or service contemplated and bears the owner's responsibilities, even though the latter remains the legal owner of the vessel. The vessel's owner is absolved of liability for an unseaworthy vessel only if there is an owner pro hac vice, and if the condition causing the injury did not exist prior to the owner pro hac vice taking control of the vessel.

A party can acquire status as an owner pro hac vice is if that party is a demise, or bareboat, charterer. A demise charterer is one who contracts for the vessel itself and assumes exclusive possession, control, command and navigation thereof.

Cargill did not own or operate the boat on August 24, 2005 and was not a demise charterer or owner pro hac vice of the Barge. Therefore, the injured deckhand's uneaworthiness claim against Cargill was dismissed.

In tomorrow's post, I will discuss the injured deckhand's unseaworthiness claim against the vessel owner, ACL.

McEuen v. Lower Ill. Towing Co., 2010 U.S. Dist. LEXIS 12027

In March 2009 a National Maintenance and Repair vessel sank on the Mississippi River causing injury to its Jones Act crew. Faced with the potential for lawsuits from the injured crew, the Jones Act Employer vessel owner raced to file a federal action to limit its potential exposure to the value of its sunken vessel. When one of the injured crew members filed a claim in the limitation proceeding, National Maintenance and Repair did not step up to address their obligation to their sunken and injured crew member. Rather, they filed a counterclaim in the limitation action against their injured crew member who had gone down with the ship, seeking damages of over $800,000.00. Fortunately the Federal Judge was not impressed with the Jones Act employer - vessel owner's actions.

The Court held that admiralty and general maritime law does not provide a counterclaim cause of action for negligent property damage by ship-owner-employers against their seamen-employees. Allowing the Jones Act Employer to file a counterclaim against the injured Jones Act crew members would not only contravene the law, but would place an insurmountable chill on the longstanding rights of admiralty and rail workers to pursue their on duty injury claims. If an injured worker has to fear a counter-claim every time he or she pursues the right to bring a suit for that injury, that worker will be less likely to exercise that right. A complete review of the Court's rationale can be found at 2010 U.S. Dist. LEXIS 9313, IN THE MATTER OF NATIONAL MAINTENANCE & REPAIR, INC., AS OWNER OF THE M/V HARTFORD BEAVER FOR EXONERATION FROM OR LIMITATION OF LIABILITY,No. 09-0676-DRH, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS.

February 3, 2010, Decided
February 3, 2010, Filed

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.

Attorneys representing injured deckhands, engineers, pilots and other Jones Act seaman crew members have the option of filing suit in state or federal court. One of the unique features of the Jones Act is if a lawyer files suit in state court, the employer/defendant cannot remove the case to federal court. In my Jones Act practice much time is devoted to determining which venue would best serve my client. Differences in the law and Judges make the decision on whether to file in state or federal court, and in what locale, very important.

Lawyers who wish to have their case tried in state court sometimes plead Jones Act jurisdiction to prevent the case from being removed to federal Court. This is an acceptable practice if the plaintiff, in fact, is a Jones Act seaman.

This scenario played out on last week in federal court in the case of John Paul Dehart, Jr. vs. BP America, Inc. 2010 U.S. Dist. LEXIS 3020. In this class action suit, lawyers for the plaintiffs asserted a Jones Act cause of action which they argued prevented the case from being removed from state to federal court. The Defendants removed the case notwithstanding the presence of a Jones Act allegation. The defendants argued the case should not be remanded to state court because the assertion of Jones Act jurisdiction was a sham. The Court found, as a matter of law, there is no possibility that the plaintiff may be deemed a Jones Act seaman. The Judge held the plaintiff lacks the requisite connection to a vessel in navigation, or to an identifiable group of such vessels, that is substantial in terms of both duration and nature. Therefore, the plaintiff could not be found to be a Jones Act seaman. The Judge refused to remand the case back to state court.

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.

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.

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.

Several northern Kentucky Ohio River counties will have a massive excavation project in their near future if Duke Energy obtains approval to construct a 19-mile natural gas pipeline beneath the Ohio River. The pipeline would be 20 inches in diameter made of carbon steel with a fusion bonded epoxy coating welded together in 40-foot segments and buried at least 3 feet deep.

As with any development close to the river, skilled workers will be needed to perform hazardous duties. The project will likely require numerous dockworkers (Longshoremen) and river crewmembers (Jones Act seaman). If you are injured on a river project, knowing your worker status is essential. Longshoremen and Jones Act Seamen may enjoy a recovery that is superior to State Workers' Compensation. An experienced maritime lawyer can evaluate your situation and guide you through what can be a confusing and difficult experience.

Over the weekend I read two cases filed by lawyers for injured river workers that did not plead jurisdiction in a manner to invoke trial by jury. Federal courts have limited jurisdiction. To get into federal Court a lawyer must allege specific jurisdictional facts. If the claim is brought under the general maritime law there is no right to trial by jury. If the lawyer asserts diversity jurisdiction (plaintiff from one state, defendants from different states) the injured worker has the right to trial by jury. A full evaluation of the case should be made prior to filing suit. It may be that the injured worker wants his/her case tried to a jury. There may be circumstances where the injured seaman and maritime attorney decide to try the case to the Judge with no jury. Once you assert a jurisdictional basis, the Court does not have to permit a change. If you are injured, it is important that you and your maritime attorney fully consider the implications of jurisdictional allegations in the complaint. If you have questions regarding jurisdictional considerations in drafting a lawsuit, please feel free to call Steve Schletker (800) 254-7487 for a free consultations.