A maritime allision between a boat and the Sunshine Bridge in Donaldsonville, Louisiana, raises questions as to who may receive compensation under maritime law. The crane barge, operated by an employee of Marquette Transportation Company, caused more than $5 million dollars of damage to the bridge. As a result, the bridge will be closed for nearly four months, and the frequent traversers of it are forced to extend each commute by at least an hour. The inconvenience thrust upon these local residents is tangible, but do they have a legal argument for compensation? Unfortunately, and perhaps unjustly, current maritime case law may not in their favor.

In the case Taira Lynn Marine Limited Number 5 v. Jays Seafood, Inc. et al., the primary issue is whether claimants who suffered no physical damage to a proprietary interest can recover for their economic losses as a result of a maritime allision. The case revolves around a 2001 incident in which a barge allided with a bridge, releasing toxic gasses into the air. As a result, the Louisiana State Police ordered a mandatory evacuation of all businesses and residence within a certain radius of the bridge, including fourteen businesses who made commercial use of the bridge and subsequently suffered economic loss. Though these businesses filed claims for compensation, the court ruled that “there can be no recovery for economic loss absent physical injury to a proprietary interest.”

In the case involving the Sunshine Bridge and Marquette Transportation, it is clear that the State of Louisiana has a right to compensation as the owner of the physically damaged bridge. It seems, however, that according to Taira Lynn that the local residents do not have such a right, though, according to sources, what was once a 90-second drive across the Mississippi River has turned into a 90-minute, 50-mile detour, costing drivers both time and money. In fact, local schools have had to adjust their start times to accommodate students who are simply unable to arrive at such an early hour due to the bridge’s closure. These affected citizens certainly do not have any ownership of the bridge, but in the interest of justice, this should not disqualify them from being compensated for their economic loss.

Following a maritime allision involving a crane barge and a bridge in southern Louisiana, Marquette Transportation Company could be facing a class-action lawsuit with punitive damages due to the company’s alleged gross negligence manifested in the frequent and consistent reckless behavior of its employees. Repairs to the bridge are underway, and the costs of said repairs could amount to more than $5 million, a price currently charged to the State of Louisiana. The scope the lawsuit involves compensation for the bridge repairs as well as compensation for the inconveniences caused to the 25,000 local residents who use the bridge on a frequent basis. If the egregious conduct is proven, punitive damages should be awarded to deter those unsafe practices – because running into 32 bridges and merely fixing the damage caused has not been enough deterrence for Marquette Transportation Company to change its ways. The question becomes, “How much in punitive damages is appropriate or necessary in a maritime case like this?”

To answer this question, one can look to two relevant cases. The first is Exxon v. Baker from the year 2008, and the second is Warren v. Shelter Insurance from the year 2017. Following a defense appeal of a punitive-damages award of $5 billion, the Court reduced the award to $2.5 billion so as to be more proportionate to the concurrent compensatory damages awarded. Citing civil code, Exxon states, “An award for punitive damages should be (1) in an amount that will deter the defendant and others from similar conduct, (2) proportionate to the wrongfulness of the defendant’s conduct and the defendant’s ability to pay, but (3) not designed to bankrupt or financially destroy a defendant.” The case admits that the notion punitive damages often falls under criticism due to their sheer unpredictability throughout recent history; however, it seeks to find a fair “upper limit” by way of proportions, and it ultimately concludes that a 3:1 ratio of punitive to compensatory damages is an appropriate maximum, though a median ratio of 1:1 ought to be pursued.

Fitting the logic of Exxon, the Warren case issued a punitive-damage award of 2:1 following the violent death of an individual involved in a boating incident. Warren uses the same criteria enumerated in Exxon for determining the amount of punitive damages; however, unique to the case, it adjusts the amount of compensatory damages to form a proper proportion between the two. Repeating the language of Exxon, Warren states that “punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.” An excessive penalty violates the defendant’s due process rights, but a minimal penalty could be ineffective. In this case, the defendant’s penalty was reduced from $23 million to $4.25 but the compensatory damages were raised from $125,000 to $2,125,000, creating the 2:1 ratio.

Following a maritime allision that occurred on October 12, 2018, the Sunshine Bridge, which crosses the Mississippi River in southern Louisiana, has been closed due to structural damage. The repairs to the bridge are underway, but they could last until January or February of 2019, totaling nearly 100 days of non-service to local residents and $5 million dollars of bills to the State of Louisiana. Heavier consequences, however, could befall Marquette Transportation Company, the owner of the at-fault vessel.

In the last five years, Marquette vessels have collided with 32 bridges—roughly 6 collisions per year, or one collision every 2 months. This already staggering statistic becomes even more alarming when paired with the additional fact that Marquette has faced no penalty or fine for any of the incidents. It is for these reasons that the plaintiffs’ attorneys could seek punitive damages against the transportation company. According to the 2008 case Exxon v. Baker, “punitives are aimed not at compensation but principally at retribution and deterring harmful conduct.” They result from “gross negligence,” “willful, wanton, and reckless indifference for the rights of others,” or “behavior even more deplorable.” The behavior of the ship’s captain is undoubtedly negligent, for he attempted to impossibly pass underneath a bridge with a fully extended crane boom. However, the scope of the dispute at hand regards Marquette Transportation at the corporate level. Thus, one must question if negligence and/or recklessness can be found in the institution.

The Exxon case defines that “Recklessness may consist of either of two different types of conduct. In one, the actor knows, or has reason to know…of facts which create a high degree of risk of…harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk. In the other, the actor has such knowledge, or reason to know, of the facts, but does not realize or appreciate the high degree of risk involved, although a reasonable man in his position would do so.” While no specific act of recklessness (at the corporate level) fitting the definition above has been brought to light, it can and must be argued that the frequency and consistency of maritime allisions involving Marquette vessels is exemplary of an institutional negligence resulting in the poor performance of its employees. In fact, the aforementioned case addresses situations in which no concrete reckless action is detected, saying that “heavier punitive awards have been thought to be justifiable when wrongdoing is hard to detect (increasing chances of getting away with it).” Maritime allisions involving Marquette vessels perhaps do not fall into the category of corporate negligence, but they are certainly evidence of it.

Marquette Transportation Company is facing a potential class-action lawsuit after one of their crane barges struck the Sunshine Bridge in St. James Parish, Louisiana. The boat operator, who is still unnamed, is alleged to have been travelling along the Mississippi River when its crane, extended roughly 100 feet in the air, struck the southeastern side of the bridge. The damages to the bridge could total up to $5 million in repairs.

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It is reported that the bridge is used by roughly 20,000 travelers every day. The lack of the bridge causes a detour that could add an additional hour to one’s drive, and the added time results in added financial burdens. Standing in the plaintiffs’ way is the ninety-year-old Robins Dry Dock rule which protects operators from being held liable for tertiary economic damages caused by accidents on the water. Subsequently, some maritime attorneys claim that because the accident occurred on a river and because nearby residents do not own the thing that damaged, the lawsuit applies to the bridge’s repair costs alone.

The negligence of the barge operator is almost undisputed. Rather, the scope of the dispute surrounds the damages for which Marquette can be held responsible. A recent search through a U.S. Coast Guard database shows record of Marquette vessels colliding with bridges 32 times since January 1, 2013; however, the company has neither faced a single penalty for these incidents, nor paid any compensation. In fact, going back further to 2006, there is evidence that another Marquette vessel struck the same bridge (the Sunshine Bridge) causing $2.1 million dollars in damage. In light of this history, the transportation company could be facing a lawsuit for punitive damages, though no injury or death occurred, on the basis of repeated employee wrongdoings as a result of purported negligence at the institutional, corporate level.

Tia Coleman is calling the defense of Branson Duck Vehicles and Ripley Entertainment “callous and calculated” following a duck boat accident on July 19, 2018. Nine of Coleman’s family members and eight others were killed when the amphibious boat capsized during a storm. Ten days later, Coleman and her attorneys filed a $100 million wrongful death suit against the two companies, but the defendants have cited an 1851 law known as the Shipowners’ Limitation of Liability Act.

According to the law, a shipowner may limit damage claims following an accident to the value of the vessel and any pending freight so long as he can prove that he lacked knowledge of the vessel’s problem beforehand. Because the duck boat in question was a total loss with no value following the accident and there was no pending freight, Ripley and Branson’s attorneys are claiming zero liability. Needless to say, the 167-year-old law was originally written for a different purpose. At the time, maritime insurance did not exist. Thus, in creating the law, Congress hoped to encourage vessel purchases and maritime transport by guaranteeing protection for sea-vessel owners in case of an accident.

Following a Coast Guard investigation of the accident, probable cause of negligence was found on the part of the boat’s captain, though the defense contests this finding. On the basis of the finding, Coleman and her attorneys filed an additional federal lawsuit in September against the boat’s operator and manufacturer. “This tragedy was the predictable and predicated result of decades of unacceptable, greed-driven and will ignorance of safety by the boat industry,” the suit states. If such an argument holds and the accident is proven to have been the “predictable” result of “willful ignorance”, it is possible that the Shipowners’ Limitation of Liability Act will be deemed inapplicable in this particular case.

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Blake R. David has been teaching advanced trial techniques to LSU Law students entering their final year of law school since 2016. David is a 2001 graduate of the Paul M. Hebert Law Center at LSU.

Read more:

https://www.law.lsu.edu/news/2018/08/14/lsu-law-thanks-trial-advocacy-program-faculty-members/

This week, a panel of five federal judges denied a motion filed by oil companies seeking to consolidate forty-one separate lawsuits against them for coastal land loss and other damage caused by oil and gas exploration, production, and transportation in five Louisiana Parishes, including Vermilion Parish, which is represented by Richard Broussard, partner at Broussard & David. The defendants saw the oil companies’ motion as a delay tactic and the judges apparently agreed.  “The (panel) had no trouble recognizing the most recent efforts of large oil corporations to postpone a trial through procedural maneuvering,”  said Broussard. “Their effort to further stall a judgment requiring them to clean up their mess was soundly rejected.”

Further reading here:

Big Oil loses effort to consolidate Louisiana coastal restoration litigation

Royal Caribbean International may have to pay $20.3 million to a former employee, who badly injured her hand while working on board a Miami-based cruise line, Voyager of the Seas, which was sailing out of Barcelona, Spain. In August of 2008, Lisa Spearman, a marketing and revenue manager for the cruise ship, severely injured her hand after attempting to help a nurse. While in port, the cruise ship conducted a routine fire safety drill. During this drill, some of the vessel’s semi-water right doors closed and one of the ship’s nurses she tripped and fell when she attempted to open and pass through one of the doors. The plaintiff jumped in to help the nurse, but when the plaintiff placed her hand on the door handle in an attempt to keep the door open, the door swung back and pinned the plaintiff’s hand. The nurse was unharmed, but the plaintiff suffered a broken middle finger, broken index finder, and the nails on both fingers were ripped from the cuticles.

After the injury, Royal Caribbean referred Spearman to a doctor in Barcelona. This doctor misdiagnosed her condition and incorrectly treated her injuries. Spearman participated in physical therapy for two years following the incident, while Royal Caribbean paid her a daily disability payment of $25.00, the amount stipulated in her employee disability insurance coverage. Two years after her injury, Royal Caribbean dismissed Spearman, stating that her injury prevented her from performing necessary safety tasks, such as lifting 50 pounds.

In 2016, Spearman brought suit against Royal Caribbean alleging the company was negligent regarding the door, failed to provide proper medical care, fired her for a non-performance related reason, and breached her employment contract by refusing to pay her full wages. After a three-week jury trial, the jury found Royal Caribbean at fault and ordered the cruise line to pay the plaintiff $20.3 million in damages, lost wages, and future medical expenses. Royal Caribbean will be appealing the decision of the trial court.

In Arceneaux v. Turner, et al., the Louisiana Third Circuit Court of Appeal reversed a Lafayette trial court’s ruling that denied uninsured motorist coverage to a plaintiff. The plaintiff, Gerald Arceneaux, owned a towing company. In November of 2014, he was involved in a car accident while driving a 2012 Ford F250. In a sworn affidavit, Arceneaux stated that he was “on call” when the accident occurred and that the truck he was driving was outfitted with all tools and equipment necessary for any road side service request. Typically, Arceneaux would drive a Ford F450, but that vehicle was in need of repairs. After the accident, Arceneaux filed suit and sought uninsured or underinsured motorist coverage from his insurer. The insurer defended by filing a motion for summary judgment claiming that the policy did not provide coverage for the plaintiff’s claims.  The trial court granted the motion and Arceneaux appealed to the Third Circuit.

On appeal, the issue before the court was whether the F250 Arceneaux drove on the day of the accident could be considered a “temporary substitute vehicle” for Gerald Towing’s Ford F450 Wrecker. Citing Louisiana law, the defendant-insurer argued that Arceneaux could not recover, because he was operating his personal vehicle at the time of the accident and that the F250 was not a covered vehicle under the policy.  However, Arceneaux countered that under the policy the Ford F250 was a “replacement motor vehicle covered under the terms of the policy.” Moreover, the policy states that insureds are anyone occupying a “covered auto” or a “temporary substitute for a covered auto.” To support his claim, Arceneaux pointed to his sworn affidavit in which he stated that the F450 was in need of repairs on the date of the accident, and that he used the Ford F250 to perform work that could or would have been completed by the F450, if it was in service.

Turning to the facts and evidence, the Third Circuit agreed with the plaintiff that the Ford F250 served as a temporary substitute for a covered vehicle, specifically the Ford F450 Wrecker. Therefore, Arceneaux was an insured under the policy at the time of the accident and could potentially recover under his UM coverage. The Third Circuit reversed the trial court’s grant of the insurer’s motion to summary judgment and remanded the case for further proceedings.

On the morning of Sunday, May 20, 2018, a helicopter crash in a marsh in St. Charles Parish claimed the life of one crew member and injured two others. None of the victims resided in Louisiana. One passenger died from his injuries in the crash and was pronounced dead at the scene. Another crewman suffered severe injuries possibly a fractured spine, but the pilot sustained less severe injuries. The pilot and crewmen worked for a company that Entergy subcontracted with to conduct routine inspections on transmission lines. According to the investigation, the helicopter’s landing gear caught on one of the power lines and caused the crash.

Three friends preparing for a cookout heard the crash and jumped into action to rescue any survivors. Due to the marshy terrain, the three men jumped into an amphibious vehicle to get to the crash site. Upon approaching the crash site, the men described a “frightening” scene with smoke billowing and the marsh grass ablaze around the downed helicopter. The rescuers took the crew’s helmets and started scooping marsh water onto the flames. One of the men took the pilot to a nearby road in order to direct first responders to the crash site. First responders were able to access the crash site via airboat and rescue the two survivors.

After an unfortunate crash like this one, Louisiana Law provides remedies for victims to recover for their injuries. Since the crash occurred during the course and scope of the passengers’ employment, the injured victims may seek worker’s compensation. Moreover, the family of the deceased crewmen may bring a wrongful death action pursuant to Louisiana Civil Code article 2315.2. The family members have one year from the date of this crash to bring the action to recover.

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