Offshore Accidents

April 13, 2023

Who is a Seaman under the Jones Act Coverage? Enter the Chandris Test

grinding_maintenance_labor_work_1-680x1024 A disabling workplace injury can be a nightmare for an employee who suffers physical pain, mental side effects, loss of income, and the uncertainty of litigation. And when large sums of money are involved, an employer will want to fight tooth and nail to avoid liability. This can be particularly distressing when an employee wins at trial only to find the decision has been appealed.

However, there is hope. Unless there has been a blatant error or abuse of discretion, a court of appeal will not want to overturn a factual conclusion or damage award from the trial court. Generally, that means an appeal will center around a question of law. See, e.g., Lasha v. Olin.

Sometimes the legal question is whether an injured worker qualifies for relief under a law. For example, an employee seeking coverage under the Jones Act must be classified as a seaman. To be one, your duties must “contribute to the function of the vessel or the accomplishments of its mission.” Determining who is a seaman under the Jones Act is a hotly contested issue, as seen in the case below.

March 29, 2023

Liability in Boating Accidents with Steering System Failure

by Berniard Law Firm

boat_rowing_boat_blue-1024x746 Hydraulic steering is part of modern-day recreational vessels. When a boat’s hydraulic steering fails, what party bears liability? The owner, driver, or manufacturer? In the following case, the Louisiana 3rd Circuit Court of Appeal was asked to determine liability and proper damages when a boat’s hydraulic steering system failed.

On May 7, 2005, a boat owned by Glen Vamvoras and operated by his son Daniel Vamvoras was traveling in Lake Charles when its steering failed. As a result, the boat spun wildly, throwing its passenger overboard. The passenger, Derek Hebert, was then struck by the boat’s propeller and tragically died.

The Louisiana Department of Wildlife & Fisheries (“Wildlife & Fisheries”) investigated the accident. It determined that the pre-owned boat purchased by defendant Glen Vamvoras lost its steering due to a hydraulic fluid leak on the boat’s steering system’s hydraulic lines at the hose/nut of the coupling assembly. Teleflex was the manufacturer and supplier of the boat’s hydraulic steering system, but the original Teleflex hoses of this vessel had been replaced by persons unknown with a non-Teleflex hydraulic hose.

March 5, 2023

I lied in a pre-employment medical questionnaire. What are the consequences?

by Berniard Law Firm

maritime_history_metal_historical-1024x680 Medical conditions can be a sensitive topic for both employers and employees. While employers are extremely cautious in not asking discriminatory questions, the employees may still be reluctant and afraid to lay all cards on the table. Understandably, workers who suffer from pre-existing medical conditions feel that they don’t need to inform their employers as long as the illnesses are not getting in the way of work. But should they? A recent case from Lousiana Fourth Circuit illuminates the legal consequences where the employee lied on the medical forms and later requested worker’s compensation.

Seaman Rousse injured his back while performing his duties as a deckhand on a United Tugs vessel in 2014. His injuries caused him to have two lumbar spine surgeries. United Tugs paid his maintenance and cure, covering his medical expenses. However, three years later, in 2017, United was alerted that Rousse had significant back injuries before he started working on the vessel. He failed to disclose his prior medical treatments during the hiring process. As a result, United sought restitution of the paid compensation. The district court ruled in favor of United, holding that Rousse had forfeited his entitlement to receive maintenance and cure because he concealed that he had suffered back injuries before employment. Rousse appealed.

A duty for maintenance and cure means that the vessel owner must “provide food, lodging, and medical services to a seaman injured while serving the ship.” Lewis & Clark Marine Inc., 531 U.S. 438, 441 (2001). However, this duty is not absolute. When a seaman intentionally conceals or fails to disclose past illness when required by an employer, the employer’s obligation to pay maintenance and cure is eliminated. McCorpen v. Cent. Gulf S.S. Corp., 396 F.2d (5th Cir. 1968). This exception rule is called the McCorpen defense. The U.S. Supreme Court has neither adopted nor rejected the McCorpen defense, resulting in a split among the federal circuit regarding what non-disclosures could bar the employee from receiving benefits. The Louisiana Fourth Circuit found McCorpen persuasive and decided to follow McCorpen in this maritime lawsuit.

November 8, 2019

Employers Potentially Liable After Seaman Injured on Tugboat

by Berniard Law Firm

46-1024x685 In 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.

November 2, 2019

Classification of Offshore Drilling Platform as “Immovable Property” Under Louisiana Law Results in Dismissal of Worker’s Personal Injury Lawsuit

by Berniard Law Firm

image-for-post-69-from-email-5-14-19-1024x384 Offshore drilling platforms enable petroleum companies to access oil deposits beneath the ocean floor. Although these platforms are anchored to the sea floor, they are technically movable and can be relocated. Whether a platform is considered “immovable property” under Louisiana law became a central issue in a case involving an injured worker because different prescription periods apply to personal injury claims depending on the nature of the property at which the injury occurred.

In 2002, McDermott, Inc. designed and delivered the Front Runner Spar, an offshore facility used for removing and processing petroleum from the seabed of the Gulf of Mexico, to Murphy Exploration & Production Company. Murphy affixed the platform to the sea floor at the edge of the continental shelf offshore from Louisiana. James Hefren was hired by Murphy as the lead operator. In June, 2011, Hefren was injured when he was struck in the face by the flange of a valve. He filed a lawsuit suit against Murphy for negligence under the Jones Act, as well as specifically alleging that McDermott failed to properly design and construct the facility. The U.S. District Court for the Western District of Louisiana entered summary judgment for Murphy, dismissing Hefren’s tort claims as barred by the exclusive remedy provision of the Longshore & Harbor Workers’ Compensation Act.

McDermott filed a motion for summary judgment arguing that Hefren’s claims were barred by Louisiana’s rule that actions arising out of deficiencies in construction or design must be brought within five years after the date the property was accepted by the owner. See La. R.S. 9:2772. Holding that the Front Runner Spar was an “immovable object” under Louisiana law, and considering that nine years had passed between Murphy’s acceptance of the facility and the date Hefren’s lawsuit was filed, the district court dismissed the claim against McDermott.

November 1, 2019

U.S. Fifth Circuit Affirms Dismissal of Defendant Due to Lack of Jurisdiction in International Personal Injury Case

by Berniard Law Firm

image-for-post-68-from-email-5-14-19-1024x683 What 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.

August 4, 2019

How To Sue Your Lawyer For Not Filing Your Claim On Time in Louisiana

by Berniard Law Firm

time-s-slipping-away-2-1419474-1-683x1024 For 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.

July 26, 2019

How Can You Prove Negligence in an Appeal?

by Berniard Law Firm

two-ships-1449344-1024x768 In 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.

July 24, 2019

Can A Land Based Accident be Covered by Maritime Insurance?

by Berniard Law Firm

ship-cranes-1238624-1024x683 Insurance 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.

July 15, 2019

Injured Seaman Recovers Damages Despite Failure to Report Previous Injury to Employer

by Berniard Law Firm

63-photo-3_26_19-1024x683 There 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.