Articles Posted in Admiralty/Maritime

46-1024x685In the workplace, providing a safe environment through training, communication, and safety standards can help create an injury-free workplace. Yet, despite every precaution, accidents can still happen and then the situation becomes one of determining whose negligence caused the injury. This issue was explored in a maritime action filed on May 9, 2012 in the Twenty-Ninth Judicial District Court for the Parish of St. Charles. 

On November 11, 2011, Jeffrey L. Soudelier, Jr. was aboard the towboat M/V Steven M. Bryan as its captain. The towboat was one of many vessels owned by the defendants: PBC Management, Inc., Florida Marine Transporters, Inc. and Florida Marine, LLC. On this day, Soudelier was instructed to move a big, steel-reinforced, cross-over hose from a barge to the towboat. The hose was heavier than it should have been due to material inside it that was supposed to be removed. Soudelier and four others were in the process of moving the hose when a painful pop in his hip forced him to stop. Soudelier tried to wait and see if the pain would go away but it did not and though he finished moving the hose, he was injured. 

Soudelier filed a lawsuit against the defendants, seeking recovery and claiming unseaworthiness in accordance with the general maritime law, as well as a claim for maintenance and cure. He claimed that his injury required surgeries and caused permanent and disabling problems, and that the required heavy physical work caused even more trauma. Soudelier stated that the defendants’ boat was unseaworthy and defendants were negligent because they did not offer alternative ways to move the hose and failed to train workers about this safety issue. 

image-for-post-68-from-email-5-14-19-1024x683What happens when a person is injured due to a company’s negligence and the company is based outside of the United States? The plaintiff generally must file a lawsuit in federal court, but there are certain jurisdictional requirements that have to be met. A plaintiff’s ability to file a lawsuit against an international company in a U.S. district court depends on how much “contact” the company has with the United States.

Danny Patterson, a U.S. citizen, was working aboard the Luxembourg-flagged vessel M/V Simon Steven off the coast of Russia when he was struck by a cable and sustained injuries. He sued his employer and the several other companies involved in the project, including Aker Subsea (“Aker”) and FMC Kongsberg (“FMC”), for damages in the U.S. District Court for the Eastern District of Louisiana. Both Aker and FMC moved to dismiss the petition for lack of personal jurisdiction, and after jurisdiction discovery, the district court found that jurisdiction over the defendants did not exist and granted the motions to dismiss. Patterson then sought to have the district court’s decision certified as final so he could appeal to the U.S. Court of Appeals for the Fifth Circuit. See Fed. R. Civ. P. 54(b). Meanwhile, FMC was dismissed from the case through a separate motion which went unopposed by Patterson.

Before the Fifth Circuit, Patterson argued that Aker had sufficient contacts with the United States to establish general personal jurisdiction. See Fed. R. Civ. P. 4(k)(2). He pointed to the fact that Aker had entered into multiple secondment agreements involving a U.S. location. Secondment agreements are used when an employee is temporarily assigned to work for another organization, or a different part of the organization, by their employer. In this case, Aker’s agreements spanned a three-year period of time, concerning employees working in Houston, Texas. Patterson argued that the employees assigned in Houston for a three year period established sufficient contacts for federal jurisdiction. 

time-s-slipping-away-2-1419474-1-683x1024For any legal claim, there is a set period of time for which the claim must be brought. This set period of time is known as a statute of limitations, which can vary based on the type of claim. If a claim is not filed prior to the expiration of the statute of limitations, the right to bring the claim is extinguished. Furthermore, if an attorney was retained to bring the claim and failed to do so in a timely manner, the attorney may be sued for malpractice. So, in Louisiana can you sue your lawyer for not filing your claim on time?

There are four elements of a malpractice claim, these include (1) duty to act, (2) a breach of this duty, (3) and this breach of duty caused the (4) damages. The duty element requires the claimant to show that the attorney owed an obligation to act with reasonable care. The breach element requires the claimant to show that the attorney breached his or her duty to the claimant. The causation element requires the claimant to show that the attorney’s conduct caused some harm –– in this case, financial harm –– to the claimant. The damages element requires the claimant to show that he or she suffered actual financial loss as a result of the attorney’s conduct.

In the present case, Nathan Lewis allegedly injured his back, neck, and knees while employed with Archer Daniels Midland Company (ADM) as a longshoreman. Mr. Lewis reported his injuries to his employer, ADM, who denied Lewises compensation claim but informed him that he could file a Longshore and Harbor Workers’ Compensation Act (LHWCA) claim with the United States Department of Labor. Lewis then retained the services of Timothy Young and Timothy J. Young for purposes of filing such a claim, but then terminated their services on July 2, 2012.

two-ships-1449344-1024x768In almost every lawsuit, both sides present expert witnesses that have completely different views of the same situation. It is important to have an excellent attorney at trial because by the time the lawsuit is appealed, these witnesses are gone and the opinions they reached are part of the record. To overturn a trial court’s decision, an appellate court must find some glaring factual or legal error. If there are no such errors, it is very hard for the appellate court to second-guess the trial court’s decision. So, how can you prove negligence on appeal? This was the case for a Baton Rouge shipping company in their case against an insurance company.

 The Commander was a ship owned by Nature’s Way Marine. The Commander ran aground in a narrow channel owned by Crown Point Holdings. Crown Point owned two other vessels that were moored in the channel at the time, the Port Gibson and the Buccaneer. The Commander tried to get itself free from the channel and eventually succeeded. This effort was aided by Joe Dardar, Crown Point’s owner. During the process, the Commander created rough water that broke the mooring lines of the Port Gibson and the Buccaneer. It was alleged that Mr. Dardar knew that the Port Gibson had been impaled by a piece of timber during this process. The Port Gibson and the Buccaneer were both grounded on a mud bank as a result of the unmooring.

A few days after the grounding, the Port Gibson began to sink and brought the Buccaneer with it. It was eventually alleged that the Port Gibson’s hull was punctured by a large piece of timber and the timber was alleged to be from the rough water caused by the Commander when it broke free of the channel. The Port Gibson and the Buccaneer were both covered by an insurance policy issued by Osprey Underwriting Agency. Osprey paid out on the policy and the costs of salvage and damages to the vessels were covered. Osprey then brought suit against Nature’s Way for their negligence.

ship-cranes-1238624-1024x683Insurance policy language is carefully crafted to limit the areas of coverage. A Ponchatoula area boating business tried and failed to extend their insurance policy coverage for accidents on the water to a land-based crane accident. So what happens when you try to cover a land based accident with maritime insurance? 

Larry Naquin was operating a land-based crane for Elevating Boats (EBI) when the pedestal of the crane snapped, and the crane toppled over. Mr. Naquin jumped from the crane and broke both of his feet and a suffered a lower abdominal hernia. The crane landed on another EBI employee and that employee was killed. As a result of his injuries, Mr. Naquin had several surgeries and attended physical therapy but was never able to return to physical work.

Mr. Naquin brought a lawsuit under the Jones Act. The Jones Act is a federal law that gives employees that work at sea the ability to sue their employers. At trial, the court held that Mr. Naquin was properly viewed as a Jones Act seaman and that EBI was negligent. Mr. Naquin was awarded $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future mental pain and suffering, and $400,000 for future lost wages. EBI appealed and challenged the grant of Jones Act seaman status as well as the negligence ruling. EBI lost the appeal and a portion of the verdict was vacated and sent back to the Trial Court.

63-photo-3_26_19-1024x683There are unique laws governing benefits and remedies for injured seamen. It is important to know the specific laws and defenses applicable to claims as an injured seaman.

Mr. Bourdreaux hurt his body including his back while working for Transocean and they paid for his living and medical expenses as required when a seaman gets injured on the job, as well as an allowance for food, for five years. BX sued them for additional money and also sought increased damages for the mismanagement of past benefits. He also sued for other claims under the Jones Act. See Pub. L. No. 66-261, 41 Stat. 988 (1920).

During discovery, Transocean found that BX failed to notify the company of past back problems in the medical questionnaire he was given prior to his employment. As a result, they filed a partial summary judgment on the claim for more money relying on the McCorpen defense, which allows a company to avoid paying a claim if previous medical problems were not disclosed. See McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d 547, 549 (5th Cir. 1968). The district court agreed and granted summary judgment on those claims. Transocean also filed for summary judgment on the negligence and unseaworthiness claim, but the motion was denied by the district court. Furthermore, Transocean filed a counterclaim against Bourdreaux seeking to recover the payments; however, the parties settled prior to the Court’s ruling on that issue.

supply-vessel-1449728-1-698x1024Contracts between parties working toward a common goal can sometimes result in detail-oriented litigation when something goes wrong. When those parties need to subcontract with a third party, the responsibility for that third party if something goes wrong can be a point of contention.

In the Western District of Louisiana, a lawsuit and appeal revolved around whether the defendant-appellant, W & T Offshore Incorporated (W&T), or the defendant-appellee, Triton Diving Services (Triton), was responsible for injuries sustained by the plaintiff, Jakarta Grogan. W&T contends that Triton is liable because the injury occurred on Triton’s vessel. Triton disputes all liability and contends that W&T must pay for Mr. Grogan’s injuries, due to the contractual relationship between them.

W&T operates a pipeline in the Gulf of Mexico and hired Triton to participate in a recommissioning project. Triton was to be responsible for flushing the pipeline for impurities and was able to do so by using a dive support vessel called the Achiever. The two parties signed a Master Services Contract that allowed Triton operational control of the vessel but granted overall operational control to W&T. During the flushing process, Triton detected potentially unsafe levels of hydrogen sulfide being released. Due to this hazard, Triton consulted with W&T engineer, Alan Greig, about how to proceed. Mr. Greig recommended they hire a third party to help resolve the issue, and they brought Tiger Safety onto the project. W&T representatives, including Mr. Greig himself, made the necessary arrangements with Tiger Safety. The Plaintiff, Mr. Grogan, was one of Tiger Safety’s personnel that boarded the Achiever in order to resolve the hydrogen sulfide issue. Mr. Grogan acted under the direction of W&T’s on-site representative and provided necessary information gathered to said representative. The problem was resolved, and Tiger Safety’s personnel had been discharged. During the departure from the Achiever, Mr. Grogan fell. He subsequently sued both W&T and Triton for the injuries he sustained. W&T and Triton filed cross-claims against one another, and each defendant claimed indemnification. Simply, each defendant claimed that they could not be held liable for Mr. Grogan’s injuries because the other defendant had contracted to release them from any potential claims. The contract between the parties held that Triton indemnified W&T from personal injury claims brought by members of the ‘contractor group’. The term ‘contractor group’ was meant to refer to the Contractor, its parent company, affiliated companies, and all respective officers, employees, and invitees on the work sites. The district court held in favor of Triton and found that, based on all relevant facts, Mr. Grogan was W&T’s invitee. W&T appealed the ruling.

64-photo-3_13_19-768x1024Worker’s compensation (WC) is a system designed to compensate workers for injuries that occur on the job. The system also helps to spread the risk of loss among numerous employers, similar to an insurance arrangement that employers pay into. Still, employers have an interest in ensuring that WC claims are valid in order to keep overall costs down. As a result, WC cases can lead to bitter disputes between workers and their employers.

Andrew Schmidt was a diver for the Cal-Dive company in Lafayette, Louisiana in 2010 when he suffered a brain injury due to decompression sickness that occurred during a work-related dive. Two years later, Schmidt filed a lawsuit against Cal-Dive alleging that the injury left him permanently disabled. He claimed that the brain injury resulted in a condition that required him to remain in a supine position nearly all the time. Cal-Dive didn’t believe Schmidt’s claim and Cal-Dive hired private investigators to surveil Schmidt for evidence that his claim was fraudulent. The observation turned up nothing favorable for challenging Schmidt’s claim. Schmidt was examined by multiple medical professionals who offered conflicting expert opinions about whether Schmidt was permanently disabled. Shortly before trial, Schmidt and Cal-Dive settled and the trial court dismissed the case.

Even though the matter was settled, Cal-Dive continued to have Schmidt followed by private investigators. The PIs discovered that Schmidt purchased a new car and was observed cutting grass, shopping, driving, and jogging. As a result, Cal-Dive filed for relief from the trial court’s order to dismiss the case under Fed. R. Civ. P. 60(d)(1) so it could amend its original complaint against Schmidt and set aside the settlement. Schmidt filed a motion to dismiss the case for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The district court denied Cal-Dive’s request to set aside the settlement and refused to permit Cal-Dive to amend the complaint, finding that it would be futile. Cal-Dive appealed.

ship-at-las-palmas-bay-1449622-1024x683Long considered “wards of admiralty,” courts carefully scrutinize the treatment of seamen, particularly in cases where substantial legal rights are involved. One such case involves the execution of a release with a seaman, particularly when the seaman is unrepresented and in claims of personal injury. Generally, in a personal injury case, a release is a legal agreement that serves to settle the claims between the parties and terminates the injured party’s right to seek damages in court.

So, what is required to uphold such a release? The Louisiana First Circuit Court of Appeal gave us an example in Buras v. Sea Supply. The plaintiff, Mr. Buras, was a seaman injured while working aboard the defendant’s vessel. A month later, Mr. Buras’ doctor cleared him to return to work where, without counsel present, he signed a release settling all claims against the defendants. In addition to the release itself, the evidence included a transcript of the conversation had between Mr. Buras and the defendant at the time of executing the release. This transcript showed that the defendant clearly advised Mr. Buras multiple times of both the consequences of signing the release and his right to have an attorney present. Nevertheless, Mr. Buras signed the release stating he understood he was giving up his legal rights in connection with this claim and declined to speak to an attorney. Nearly a year later, Mr. Buras filed a claim seeking to have the release declared unenforceable; however, the trial court found that because all of Mr. Buras’ claims against the defendants were covered by the release, there were no genuine issues of material fact and, therefore, granted the defendant’s motion for summary judgment, dismissing the case without trial.

The law is well-settled that there is a heavy burden upon one who sets up a seaman’s release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with full understanding of his rights and appreciation for the consequences. See, e.g., Garrett v. Moore-McCormack Co., 317 U.S. 239, 240 (1942); Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599 (5th Cir. 1986);

helicopter-1450413-2-683x1024For a negligence lawsuit to have any chance of survival, an essential element is to show the plaintiff had damages. Often these damages are obvious physical injuries.   Sometimes however, damages claimed are for emotional distress. Due to its intangible nature, emotional distress can be extremely difficult to prove and a lawsuit for such damages can be equally difficult to maintain.  In a recent case out of the Parish of Lafayette, a Louisiana man failed to prove all the necessary elements to sustain his emotional distress lawsuit despite the lawsuit centering on a helicopter crash.

Plaintiff Hayward Allen worked on an offshore rig owned by an oil company.  Mr. Allen took a helicopter to his job site. Defendant PHI, Inc. (“PHI”) owned and operated the helicopters delivering the employees to the rig. In December 2009, one of PHI’s helicopters rolled over while dropping off some passengers on the rig where Mr. Allen was working. No one was injured in the accident. Mr. Allen did not even see the incident because he was sixty feet below the helipad when it occurred. Because of this incident however Mr. Allen claimed he could no longer work because he was now too afraid of helicopters. Mr. Allen alleged to be suffering from chest pains, sleep problems, anxiety and elevated blood pressure from the emotional distress brought upon him from the helicopter incident. Mr. Allen filed a lawsuit in the Judicial District Court for the Parish of Lafayette. The District Court granted a directed verdict in favor of PHI because Mr. Allen failed to offer any evidence of PHI’s liability or negligence.   

A directed verdict is granted only when the evidence overwhelmingly points to one conclusion.  See Carter v. Western Kraft Paper Mill, 649 So.2d 541, 544 (La. Ct. App. 1994).  The facts must so strongly support judgment in favor of one party that the court must determine reasonable people could not reach a contrary verdict.  Directed verdicts do not require the assent of the jury. See La. C.C.P. art 1810.  To have any chance at success in a negligence claim, including an emotional distress claim, a plaintiff must show that the defendant was the cause of the plaintiff’s injuries.  See La. C.C. art 2315.6.  

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