Articles Posted in Maritime Personal Injury

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.

The U.S. Coast Guard and the Occupational Safety and Health Administration are calling for stronger safety measures aboard oil platforms after an explosion on a Lake Pontchartrain oil rig left multiple workers injured and one worker missing. Five workers sustained critical burns from the blast, while two others sustained trauma-related injuries. A search-and-rescue mission was sent out for the missing employee, whose body was recovered five days after the explosion. The explosion occurred on October 15th, two miles from Kenner and around twenty miles north of New Orleans in an incorporated area of Jefferson Parish.

According to the City of Kenner Government, the platform (used for the transfer of oil) ignited because of cleaning chemicals that were not sufficiently hosed off. The explosion could be heard from miles away and houses up to 10 blocks away “actually shook from the boom.” Many of the employees on the platform were rescued subsequent to the explosion as fires continued to burn on the platform.

The environmental impact of the explosion is yet to be determined. The Coast Guard will continue to test the surrounding waters to determine if large amounts of oil were deposited into Lake Pontchartrain. Many Kenner residents have gone to social media to voice their concerns about the potential future environmental impacts of the explosion. Lake Pontchartrain is part of a larger ecosystem called the Pontchartrain Basin, an area consisting of many rivers, bayous, and swamps that could potentially be impacted by oil from the explosion. South Louisiana citizens are fearful of a similar situation to the Deepwater Horizon disaster seven years ago.

In an important maritime law decision protecting seaman all over the county, the Supreme Court of the United States upheld the Louisiana verdict secured for an injured maritime worker. Attorney Blake R. David (lead counsel) and J. Derek Aswell of Broussard & David represented the plaintiff. Guidry v. Tanner Marine, 16-61 (La. App. 3rd Cir. 10/19/16), 206 So.3d 378, writ denied (La. 1/23/17) 209 So.3d 90; writ denied (U.S. 6/12/17) 2017 WL 1494663.

In Guidry v. Tanner Services, a St. Landry Parish trial court found Ernest Guidry to be a seaman under the Jones Act and awarded general and special damages of $3,885,911.69. A 16,000 pound vibrating hammer fell on Guidry causing the amputation of his four fingers, a crushed foot, herniated discs in his neck and back, concussion, depression, post-traumatic stress, and total and permanent disability. The verdict was upheld by the Louisiana Third Circuit Court of Appeal, the Supreme Court of Louisiana, and the Supreme Court of the United States — the final judgment with judicial interest totaled over $4,280,000.00.

Defendant, Tanner Services, LLC, was awarded a contract to construct a bulkhead in Grand Isle, Louisiana beginning in January 2012. The Defendant used three barges and two tugboats to move the equipment, supplies, and store materials, as well as to act as “floating docks” or “work stations” for a crane and preparatory welding. The project also used floating mats described as a large piece of wood similar to a “raft.” Guidry spent the majority of his time on the floating raft. Previously, Guidry had been strictly a land-based shop welder for Tanner. The trial court found that he was reassigned to do maritime work, and that this reassignment changed his status to a Jones Act seaman who can recover for his catastrophic losses from his at-fault employer. The court also found that the raft was an appurtenance to the crane barge.

Jerome Moroux of the law firm Broussard and David, recently obtained a settlement of over $3.2MM on behalf of an offshore worker who sustained  an injury while entering a vessel in Vermilion Parish. The incident was unwitnessed and occurred as the worker was crossing the gangway that was not properly secured on the vessel.

Initially, the worker believed he had sustained only a twisted ankle. As he continued working offshore, however, plaintiff’s pain continued to worsen. He was ultimately diagnosed with CRPS in his right ankle and received a spinal cord stimulator in his low back for right ankle pain. Plaintiff also treated for depression following his injury.

The case was defended by ABC Boats and Doe’s employer, which denied liability and the extent of damages claimed. As to liability, defendants asserted that plaintiff misjudged the step from the gangway to the deck; defendants focused on the fact that plaintiff had provided multiple accounts of the accident to his various doctors and company representatives. Additionally, ABC Boats’s Captain testified that he observed the gangway one hour before the accident and it was properly secured; also, three passengers boarded the vessel in the hour before plaintiff and had no problems with the gangway. Concerning damages, defendants questioned the diagnosis of CRPS and denied that plaintiff’s psychological trauma were in any way related to the accident.

An interesting case recently arose out of the Northern District of California. A ferry boat captain was found partially responsible for a collision in which he was using his cell phone in the minutes before his boat wrecked into a speedboat on the San Francisco Bay.

In February of 2013, Harry Holzhauer and David Rhoades were traveling by speedboat in the San Francisco Bay when a ferry crashed into their boat. The driver, Holzhauer, was killed in the collision and Rhoades, who owned the boat, was seriously injured. The widows of Holzhauer and Rhoades both filed claims against the ferry captain and the ferry owner, alleging the captain negligently used his cell phone immediately before the accident occurred.  At the trial, Plaintiffs presented evidence that showed that the ferry made a course and speed change about two minutes before the collision and that the captain of the ferry made a two-minute cell phone call at 4:07 pm, just before the 4:09 pm collision.

After hearing the evidence, the jury returned a verdict in favor of the plaintiffs in the amount of $5,276,306, broken down as $3,729,559 to Rhoades and $1,546,747 to Holzhauer. Further, the jury found the ferry Captain to be 30% at fault and Holtzhauer 70% at fault, reducing Holtzhauer’s award to $464,024.00.

A recent Fifth Circuit per curiam opinion proves to be a lesson for maritime and admiralty attorneys in how to preserve issues on appeal, particularly in Jones Act jury trials.

In 2014, Plaintiff Richard Bosarge applied for employment with Cheramie Marine, L.L.C. and was hired as a relief captain. While on duty, Mr. Bosarge sustained injuries to his back when he was tossed out of his bunk when his vessel hit a large wave. Cheramie responded by arguing that the waves were not violent and alleging that Mr. Bosarge never reported any injuries to his superiors, other than some seasickness.

Mr Bosarge sued his employer under the Jones Act to recover for his back injuries. During his pre-employment physical examination, Mr. Bosarge denied having any prior back pain or injury, although he had sought medical care for back pain in the past. At trial, Defendant’s medical expert was able to compare pre-injury and post-injury MRIs of Mr. Bosarge’s back, and testified that the post-injury MRI showed less injury than the pre-injury MRI. The jury returned a zero verdict and Plaintiff appealed.

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