Boating Accidents

Federal Government Agrees to Settlement with Gulf-Polluting ATP Infrastructure Partners, LP

January 15, 2015 | by Broussard, David & Moroux

Operating in violation of both the Clean Water Act (CWA) and the Outer Continental Shelf Lands Act (OCSLA), ATP Infrastructure Partners LP (ATP-IP) has agreed to pay a $1 million civil penalty to settle a federal lawsuit over illegal discharges of oil and chemicals from an oil platform in the Gulf of Mexico.

The lawsuit, instituted by the United States, was resolved by way of joint judicial enforcement action involving the Environmental Protection Agency (EPA), the Bureau of Safety and Environmental Enforcement (BSEE), and the Justice Department.

In its complaint filed in the U.S. District Court for the Eastern District of Louisiana, the United States alleged that ATP-IP “violated Section 311(b)(3) of the CWA when oil and other pollutants were discharged into the Gulf of Mexico from the ATP Innovator.” Violation of this provision in the CWA opened up ATP-IP to possible civil penalties. The United States also urged that ATP-IP was liable for injunctive relief under OCSLA, “as the owner of the ATP Innovator … [for] hidden piping configuration [that] was being used to inject a chemical dispersant into the facility’s wastewater discharge outfall pipe to mask excess amounts of oil being discharged into the ocean.”

Study Reveals Correlation Between Daylight Savings Time and Higher Rates of Traffic Fatalities

December 15, 2014 | by Broussard, David & Moroux

Reduction of traffic accidents—particularly fatal traffic accidents—has long been at the center of public debate and the ambition of state and federal policymakers. The 1960s proved a watershed decade for transformation of traffic safety. With traffic fatalities on the rise in the 1960s, spiking at 49,000 traffic fatalities in 1965, public concern over traffic safety began to dominate the national discussion. Culminating with the 1965 publication of Ralph Nader’s “Unsafe at Any Speed”—a book that issued scathing criticisms of vehicle manufacturers for their willfully rejecting the addition of safety features into their automobiles—policymakers reacted. By calling on states to erect highway safety measures, the Highway Safety Act passed by Congress in 1966 was the first of many concentrated efforts to reduce this increasing problem. One important feature of this legislation was that it created the National Highway Traffic Safety Administration, or NHTSA, which primarily operates as a safety administrator, promulgating rules designed to increase safety on highways, but also to increase safety of the vehicles themselves by imposing regulations on manufacturers.

With the bulk of this debate happening from the 1960s forward, traffic safety has long been on the minds of citizens and policymakers. Improving safety based on readily observable causes—prohibiting intoxicated driving, reducing speed limits, requiring operating traffic signals, etc.—is one thing, but as a recent study reveals, sometimes the causal or correlative connection between a phenomenon and traffic safety is more mysterious.

A recent study by University of Colorado-Boulder PhD candidate Austin Smith revealed a curious correlation between daylight savings time and increased traffic fatalities. This study reviewed data on fatal vehicle accidents from 2002 to 2011 and compared the number of fatal accidents that occur just before and after daylight savings time changes took effect.

Federal Government Agrees to Settlement with Gulf-Polluting ATP Infrastructure Partners, LP

November 7, 2014 | by Broussard, David & Moroux

Operating in violation of both the Clean Water Act (CWA) and the Outer Continental Shelf Lands Act (OCSLA), ATP Infrastructure Partners LP (ATP-IP) has agreed to pay a $1 million civil penalty to settle a federal lawsuit over illegal discharges of oil and chemicals from an oil platform in the Gulf of Mexico.

The lawsuit, instituted by the United States, was resolved by way of joint judicial enforcement action involving the Environmental Protection Agency (EPA), the Bureau of Safety and Environmental Enforcement (BSEE), and the Justice Department.

In its complaint filed in the U.S. District Court for the Eastern District of Louisiana, the United States alleged that ATP-IP “violated Section 311(b)(3) of the CWA when oil and other pollutants were discharged into the Gulf of Mexico from the ATP Innovator.” Violation of this provision in the CWA opened up ATP-IP to possible civil penalties. The United States also urged that ATP-IP was liable for injunctive relief under OCSLA, “as the owner of the ATP Innovator … [for] hidden piping configuration [that] was being used to inject a chemical dispersant into the facility’s wastewater discharge outfall pipe to mask excess amounts of oil being discharged into the ocean.”

Products Liability in Louisiana under the LPLA

October 31, 2014 | by Broussard, David & Moroux

As Halloween approaches, I’m reminded of a story I was told growing up–a story that has spread like wildfire and survived the ages. It’s the story of a young child, happily trick-or-treating in his neighborhood and too fixated on his chocolate, sugary boon to care about any potential for harm. As the young child explores his neighborhood, bouncing from home-to-home, he approaches one residence that has opted to hand over candied apples to its trick-or-treaters instead of candy. The young child approaches the home, receives his candied apple in exchange for his promise not to “trick” and then scampers off to his next target home. Later that night, inspecting his bounty, the young child discovers a razor blade in his candied apple–a razor blade that, had he bitten down on it, would’ve caused him serious injury. Those of you reading this are tempted to relegate this story to “urban legend” status, a story designed to scare children into safer Halloween habits. However, I instead encourage you to think about this scenario as a basic, yet well-recognized example, of Products Liability law.

The area of tort law known as Products Liability deals with rights, duties, obligations, and standards associated with the distribution and safety of products. That is, manufacturers are liable for the personal injury or other damage caused by their defective product. Intuitive as it may sound, this was not always the case. Before Louisiana extended this right to injured plaintiffs–the right to seek remuneration for personal injuries caused by defective products–courts often denied injured plaintiffs’ claims due to the legal doctrine of “privity of contract.” Under this doctrine, courts conceived products liability to be a contractual matter, and recovery against the seller was rooted in contractual remedies. Accordingly, this “privity” required that the defendant-manufacturer be a party to the contract of sale in order to provide remedies outside of the law of contracts. Since manufacturers rarely sell their products directly to customers, but instead sell them to retailers who distribute them to the public, manufacturers were often shielded from liability.

Gradually, the conception that products liability was restricted to the realm of contracts started to erode. For example, the Restatement of Torts adopted a provision “providing limited strict liability of the manufacturer of a product for the personal injury damages caused by a defect in the product.” This approach to products liability was later adopted by the Louisiana Supreme Court in Weber v. Fidelity & Cas. Ins. Co. of NY, 250 So. 2d 754 (La. 1971), which provided for manufacturers’ strict liability in tort for their defective/injurious products.

BP’s “Gross Negligence” Under the Clean Water Act: A Deeper Look

September 19, 2014 | by Broussard, David & Moroux

Almost two weeks have passed since Judge Carl Barbier handed down his blistering opinion apportioning a majority of the fault to BP for the 2010 Gulf oil spill. As a follow-up to last week’s article, which detailed Judge Barbier’s ruling, we aim to dig deeper: Judge Barbier found that BP’s “gross” negligence opens them up to enhanced civil penalties under the Clean Water Act (CWA). But what does this mean for BP? Was this the right result?

The Ruling

The thrust of Judge Barbier’s opinion was to apportion fault, or responsibility, for the harrowing 87-day oil spill which followed Deepwater Horizon’s explosion. As we noted in last week’s article, Judge Barbier found BP 67 percent at fault for the spill and reserved only 30 percent and 3 percent for Transocean and Halliburton, respectively. Importantly, and the subject of this week’s in-depth look at his ruling, Judge Barbier found that BP’s “gross negligence” and “willful misconduct” opens them up to enhanced civil penalties under the Clean Water Act. Under the CWA, where a “person” causes a hazardous oil spill in navigable waters of the United States, and where this spill is the “result of gross negligence or willful misconduct… the person shall be subject to a civil penalty of not less than $100,000, and not more than $3,000 per barrel of oil or unit of reportable quantity of hazardous substance discharged.” 33 U.S.C. §1321(b)(7)(D). As Judge Barbier notes, this enhanced penalty provision does not require any “specific level of corporate management,” but instead opens up enhanced penalties to entities who violate this provision of the Clean Water Act whether it’s the result of systemic, gross negligence or not.

Federal Judge Finds BP “Grossly Negligent,” Allocates Majority of Fault for 2010 Oil Spill to BP

September 12, 2014 | by Broussard, David & Moroux

In a recent ruling handed down in Federal District Court in New Orleans, Federal District Judge Carl Barbier assigned the majority of the responsibility to BP for the 2010 explosion of Deepwater Horizon. Judge Barbier found the discharge of oil to be the result of BP’s “gross negligence” and “willful misconduct” under the Clean Water Act, which subjects BP to enhanced civil penalties. The ruling found BP responsible for 67 percent of the blowout, explosion, and subsequent oil spill, while the remaining percentage was divided among Transocean and Halliburton at 30 percent and 3 percent, respectively.

“BP’s conduct was reckless. Transocean’s conduct was negligent. Halliburton’s conduct was negligent,” wrote District Judge Barbier in his 153-page ruling.

While it has been estimated that BP could face fines of up to $18 billion, the Judge’s ruling noted that BP cannot be held liable for additional punitive damages under general maritime law. Usually, general maritime law which permits the imposition of punitive damages for reckless, willful, and wanton conduct. However, due to a unique jurisdictional rule in Louisiana, Texas, and Mississippi, the imposition of punitive damages under general maritime law has been severely limited, though not entirely abandoned. Indeed, punitive damages are still available for reckless, wanton conduct in the Fifth Circuit, though, the bar is much higher. In addition to proving the defendant’s “reckless, willful, and wanton conduct,” an award of punitive damages must also demonstrate systemic recklessness. “The maritime rule in the Fifth Circuit is generally insufficient to visit punitive damages upon the employer. Rather, the conduct must emanate from corporate policy or that a corporate official with policy-making authority participated in, approved of, or subsequently ratified the egregious conduct,” the ruling states. In the absence of such a corporate policy, Judge Barbier found that BP cannot be held liable for punitive damages under general maritime law. BP plans to appeal the decision.

Boating Accident Leaves One Dead

June 25, 2013 | by Broussard, David & Moroux

A boat crashed near Pilottown, killing one and injuring another. The injured were taken via helicopter to New Orleans for medical treatment and the survivor’s condition is critical.

As the summer months approach and the heat intensifies in Louisiana, many people will be taking their boats on the water to beat the heat. While boats are a great source of entertainment and family fun, they can also be the source of devastating accidents.

Alabama Barge Explosions Injure Many

April 25, 2013 | by Broussard, David & Moroux

Two fuel barges carrying natural gas exploded in Mobile, Alabama. The explosions resulted in the evacuation of a nearby docked cruise ship and critical burns on at least three individuals. The barges, owned by a Houston company, were in Mobile for cleaning and had been carrying natural gasoline.

Accidents on the water, such a boating collisions or other accidents, can cause serious a long-term injuries. Our firm represents clients in Louisiana that have sustained a serious personal injury or lost a loved one because of a boating collision or some other kind of boating accident.

Passengers file lawsuits in the weeks after the Triumph disaster

March 8, 2013 | by Broussard, David & Moroux

In the weeks following the Triumph’s return to shore, several passengers have filed lawsuits against Carnival Corporation. In their complaints, passengers allege that Carnival “recklessly and intentionally” risked their lives on board the Triumph. The passengers further allege that Carnival “knew or should have known” that the cruise ship would experience mechanical failure and that it failed to exercise its duty of reasonable care. The passengers are seeking damages for pain and suffering and emotional distress.

The Triumph’s engine caught fire during its voyage in the Gulf of Mexico. The crippled engine left over 3,000 passengers stranded at sea for about five days. Carnival then slowly tugged the ship to shore. Upon reaching shore, several passengers revealed that they were deprived of food, water and access to functioning bathrooms on the ship.

Maritime law governs the claims of passengers who suffer injuries on cruise ships. Most major cruise lines today are registered under the laws of foreign countries. Nevertheless, if a cruise ship departs from a U.S. port, the cruise ship is considered to be a common carrier under the U.S. Shipping Act of 1984. As a common carrier, cruise ships owe a heightened duty of care to their passengers.

NYC Ferry Crash Victims Seek Millions in Damages

January 30, 2013 | by Broussard, David & Moroux

In the weeks following the tragic New York City ferry crash, survivors and their families have filed lawsuits against the ferry’s operator under maritime law. More than 70 people were injured in the accident, and several victims remain in intensive care. A new National Transportation Safety Board report details the shocking minutes leading up to the crash.

The plaintiffs include the family of a Wall Street broker who suffered serious injuries in the accident. The family sued the operator for $45 million in damages for his injuries. Other lawsuits have been filed on behalf of a victim who remains unconscious, a victim who suffered a spinal fracture and a victim who suffered a fractured skull. The ferry operator moved to limit its total liability under federal maritime law to $7.6 million, the estimated total value of the damaged vessel.

The Jones Act provides for specific rights to those who qualify for seaman status. However, the Jones Act is not the exclusive means of recovery for individuals who suffer an injury at sea. People like passengers on ferries and cruise ships, who do not qualify for seaman status under the Jones Act, must resort to general maritime law for relief. Although there is no statutory basis for general maritime law claims, many of these claims give vessel passengers the right to recover damages for their injuries under common law theories of liability.