Maritime Injury Lawyer Blog

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.

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.

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 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.

When an injured deckhand, crew member or dock worker cannot return to his/her former employment, the analysis turns to suitable alternate employment. Considering the sluggish economy and high unemployment rates in Kentucky, Ohio and West Virginia, one might think it would be difficult to identify jobs the injured worker can perform.

Faced with this difficult issue, vessel owners and Longshore employers usually hire a vocational expert to identify alternate work. The Employer's vocational expert conducts an interview, reviews the medical records and then comes up with a list of jobs the injured worker can allegedly perform. Regardless of how hurt the worker is or how vocationally limited the worker may be (can't read, can't write, very limited education) the expert always comes up with available jobs. Although unemployment is soaring at numbers not seen since the great depression, the Employer's vocational expert identifies employers who (at least in theory) are lined up across the block to hire injured workers.

I had a recent case where the expert identified over 40 jobs that my injured client (who had not finished high school) could purportedly perform. When my client began contacting the potential employers on the list, he discovered some of the companies were no longer in business. Most of the companies did not have openings, some required physical labor grossly in excess of what my injured client could perform, some jobs were more than 60 miles from my client's home, etc. etc.

The Employer's vocational expert almost never sends out a report indicating the local job market does not have openings for the injured worker. They just will not do it.

While all economic indicators suggest very sluggish job markets in Kentucky, Ohio and West Virginia, the market for injured workers with job histories limited to manual labor is booming...if you don't believe me, just ask your Employer's vocational expert.

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.

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.

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.

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 Third Circuit Court of Appeals (federal) recently held that injured or ill commuter seamen (who return home every night after working their shift) are entitled to the same rights to maintenance and cure as crew members who work a hitch of consecutive days on the boat. The tow boat company/employer argued that since commuter crew members do not live on the boat or rely upon the boat for food and lodging while working, they should not receive maintenance payments while they are off because of injury or illness. The Third Circuit did not agree and wrote in support of the rights of injured and ill crew members.

Maintenance is the payment by a tow boat or ship owner to a crew member for food and lodging costs incurred while he/she is ashore as a result of illness or accident. Its original purpose was to ensure injured seamen funds adequate to cover basic living expenses during their recovery. Cure is the payment of a seaman's reasonable and necessary medical bills during the time of recovery.

It has been my experience that tow boat companies are very lax in providing maintenance and cure to injured or ill crew members. If they can get away with not paying maintenance and cure, they will simply ignore their obligation. On a number of occasions, I have been able to get a crew member's maintenance and cure started/re-started by sending just a letter or two.

Citing the U.S. Supreme Court decision in Vaughan v. Atkinson, the Third Circuit noted Admiralty courts have been liberal in interpreting the duty of providing maintenance and cure 'for the benefit and protection of seamen who are its wards.' The shipowner's liability for maintenance and cure is among 'the most pervasive' of all and that it was not to be defeated by restrictive distinctions nor 'narrowly confined.' When there are ambiguities or doubts, they are resolved in favor of the seaman.

If are off because of illness or injury that arose while you were on the boat, you are entitled to maintenance and cure until you reach maximum medical improvement. Don't let the vessel owner get away with not paying it.

Del. River & Bay Auth. v. Kopacz, 2009 U.S. App. LEXIS 21260 (3d Cir. Del. Sept. 25, 2009)