Goldsmith & Ogrodowski's Admiralty Update Blog

2010-05-13T16:40:00.027-04:00

Welcome to the May 12, 2010, issue of Admiralty Update, the copyrighted and trademarked e-newsletter on developments in U.S. Coast Guard regulations and state and federal court decisions of interest to the commercial and recreational mariners. It is written, edited, and produced by Frederick B. Goldsmith and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A.

This issue's photo (by Fred Goldsmith) depicts the sternwheel from the towboat JASON. The JASON was first owned by Union Barge Line Corporation and was in operation from 1940 to 1959. It was homeported in Pittsburgh. A plaque on the sternwheel, which now sits on the left descending bank of the Ohio River across from downtown Pittsburgh, beneath the Fort Pitt Bridge (which appears in the background), informs that the JASON, "one of the last steam sternwheelers," was powered by two compound engines producing 1600 HP, and that the welded construction of the wheel was "fairly new at the time."
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G&O Personnel News

Fred Goldsmith Moderates Seminar on Evolving Federal Court Pleading Standards

On April 21, 2010, Fred Goldsmith moderated a continuing legal education seminar entitled, "Drafting and Challenging Federal Court Complaints: Three Federal Judges and a Law School Professor Outline Pleading and Motion to Dismiss Practice Post Twombly and Iqbal." Panelists included Judge Nora Barry Fischer of the U.S. District Court for the Western District of Pennsylvania, Judges D. Michael Fisher and Thomas M. Hardiman of the U.S. Third Circuit Court of Appeals, and Professor Rhonda Wasserman of the University of Pittsburgh School of Law.

Fred Goldsmith Examines Importance of Crew Training in his March 2010 Column in MarineNews Magazine

Link to "Foreseeable Emergencies: Operators Liable for Training Crews."

Fred Goldsmith Makes Guest Appearances on "On the Road with Rocky," ESPN Radio 1250 AM

Fred was invited by host Rocky Marks to appear on his popular Pittsburgh motorcycle-focused radio show. He'll be featured on the shows which air January 30 and February 13, 2010, from 8:00 to 9:00 A.M. Tune in (or click the link on the date, above) to hear Fred discuss legal aspects of motorcycling, including motorcycle insurance and what to do if you're involved in an accident.

G&O at the Pittsburgh Boat Show

G&O was at the 2010 Pittsburgh Boat Show, January 21-24, 2010, http://www.pittsburghboatshow.com/, in Monroeville at the Convention Center. If you missed us and our booth (B-39), you also missed a chance to register for a drawing to win a free Standard Horizon submersible VHF Marine Radio! The winner is Scott Anderson. Congrats Scott! We had a swell time at the show, met lots of great people, and look forward to next year's show!

Goldsmith Publishes Another Column in Inland and Near-Shore Maritime Industry Trade Magazine, MarineNews, on Vessel Owner's Duty of Seaworthiness

Link to the January 2010 issue of MarineNews magazine to read Fred Goldsmith's most recent column, "A Vessel Owner's Warranty of Seaworthiness."
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Recent U.S. Coast Guard Notices in the Federal Register

Coast Guard Seeks Applicants for Boating Safety Advisory Council

In the May 10, 2010, Federal Register, the Coast Guard advertises for positions on this unpaid advisory committee which "advises the Coast Guard on recreational boating safety regulations and other major boating safety matters."

Coast Guard Seeks to Amend Its Recreational Boating Regulations

In the May 7, 2010, Federal Register, the Coast Guard publishes a Notice of Proposed Rulemaking which would "amend its rules related to numbering of undocumented vessels and reporting of casualties. These changes would align and modernize terminology used in the Standard Numbering System (SNS), the Vessel Identification System (VIS), and casualty reporting; require validation of vessel hull identification numbers; require SNS vessel owners to provide personally identifiable information; and provide administrative flexibility for States."
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Recent State & Federal Court Maritime Decisions

U.S. Third Circuit Court of Appeals: Ryan Doctrine's Implied Contractual Warranty of Workmanlike Performance Applies in Traditionally Tort-Duty-Only Tug-Tow Context

In In re J.A.R. Barge Lines L.P., 2010 WL 1303464 (3d Cir. April 6, 2010), a three-judge panel of the Third Circuit Court of Appeals affirmed the trial court's application of the Ryan doctrine, named after Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124 (1956), and required Mon River Towing, the employer of a Jones Act seaman who suffered a serious personal injury while working as a deckhand aboard a Mon River towboat which was shifting Ingram barges at an Ingram terminal on the Monongahela River near Pittsburgh, to indemnify Ingram for Ingram's defense costs. In the Ryan decision, a case involving a longshoreman who was injured unloading a ship, the Supreme Court implied a warranty of workmanlike performance in the shipowner/stevedore contract which, if breached, entitled the shipowner to indemnity from the stevedore. Here, Mon River settled with its injured deckhand then, as a settling tortfeasor, asked the court to dismiss Ingram's claims against it under the proportionate share settlement credit rule announced in McDermott, Inc. v. AmClyde, 511 U.S. 202 (1994), and Boca Grande Club, Inc. v. Florida Power & Light Co., 511 U.S. 222 (1994). The trial and appeals courts refused, holding the tort-based proportionate share settlement credit rule did not apply to Ingram's contractual indemnity claim. The trial and appeals courts did not accept Mon River's argument that it, as a tower, only owed Ingram a tort-based duty of reasonable care under Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932), and thus that it could not be subject to an implied contractual warranty. The appeals court wrote: "It may very well be that Ryan indemnity has outlived its usefulness, but, since we are not sitting en banc, we have no authority to decline its application in the present context. Furthermore, the Supreme Court has not overruled Ryan in its entirety, despite the 1972 amendments to the LWHCA. Unless and until that happens, it appears that the doctrine will linger on, regardless of heavy criticism."

Ed Note: Fred Goldsmith was counsel for Mon River initially at the trial court level and, after the injured seaman's counsel defended Mon River for the bulk of the balance of the trial court proceedings pursuant to a settlement agreement's defense and indemnity obligation, was asked to continue to represent Mon River on appeal. The Third Circuit recently denied panel and en banc rehearing. Mon River now has the right to petition the U.S. Supreme Court for a writ of certiorari.

Michigan Federal District Court: Plaintiff May Not Argue His Jones Act and General Maritime Law Claims Are His Only Avenue to Recovery; Defendants Did Not Demonstrate that a Broader Order Prohibiting the Use of the Phrases “One Day in Court” and “Workers Compensation” Was Necessary

In Klump v. Oglebay Norton Marine Services Co., LLC, 2010 WL 1463194 (E.D. Mich. April 12, 2010), the court granted in part and denied in part without prejudice defendants’ “motion in limine to preclude plaintiff from arguing ‘that this lawsuit in general, or the Jones Act in particular, is his ‘only remedy’ or that this lawsuit represents plaintiff’s only chance to have his day in court.’” The court found that the plaintiff could not argue this case was his “only” avenue to recovery, as the plaintiff did not articulate “how the availability or unavailability of other avenues of recovery [was] relevant to his ability to recover under the Jones Act.” Nevertheless, the court also found that the defendants did not demonstrate “that a broad order prohibiting the use of the phrases ‘one day in court’ and ‘workers compensation’ [was] necessary,” because the plaintiff should be free to remind the jury that the instant lawsuit is his “one day in court” as it relates to the defendants and it is also possible that workers compensation may be relevant at some point during trial.

Texas Federal District Court: Plaintiff May Serve As the Substitute Custodian of an Arrested Vessel

In Mile 533 Marine Ways, Inc. v. M/V CLARISSA, 2010 WL 1371642 (S.D. Tex. April 2, 2010), the plaintiff filed a verified complaint seeking the arrest of the M/V CLARISSA. The district court issued an order authorizing the arrest of the vessel and the U.S. Marshal Service arrested the vessel on March 30, 2010. The plaintiff then filed a motion for appointment of substitute custodian and sought to have itself appointed as the substitute custodian. After noting there is “scant case law addressing the propriety of having a party in litigation also serving as the substitute custodian,” the district court granted the motion. An important factor in the district court's granting the motion was the consent of the vessel owner to having the plaintiff serve as the substitute custodian in lieu of the U.S. Marshal's Service.

Louisiana Federal District Court: U.S. Army Corps of Engineers Liable for Hurricane Katrina Flooding Damages For Failure to Properly Maintain and Operate Navigation Channel

In In re Katrina Canal Breaches Consolidated Litigation, 2009 WL 3856346 (E.D. La. Nov. 18, 2009), Judge Stanwood R. Duval, Jr. found the Corps could be held liable under the Federal Tort Claims Act for six named plaintiff homeowners' damages for activities surrounding a navigation canal despite the fact those actions caused the failure of certain levees, thus denying the government's defense that the Flood Control Act of 1928 barred the plaintiffs claims. The navigation canal in question is the "MRGO," an acronym for the Mississippi River Gulf Outlet, which New Orleanians refer to as the "Mister Go."

Florida Federal District Court: Plaintiffs Entitled to Salvage Award of $290,700 for Their Efforts in Rescuing Three Vessels During Hurricane Wilma

In O’Hagan v. M&T Marine Group, LLC, 2010 WL 1372431 (S.D. Fla. Mar. 31, 2010), Thomas O’Hagan and Francisco Arroyo, independent maritime contractors working and living in Broward County, Florida and serving as sub-contractors for M&T Marine Group, LLC (“M&T”), noticed, during Hurricane Wilma, several brand new vessels owned by M&T “were taking on water because the floating docks the vessels were tied to were sinking and pulling the vessels over.” The court found O’Hagan and Arroyo provided services to three of the vessels, including cutting dock lines from the sinking piers, relocating the vessels to a seawall a few hundred yards away, pumping water out of the vessels, and taking steps to preserve and secure the vessels. The court found the post-salvage value of the three vessels to be $1,938,000 and awarded O’Hagan and Arroyo 15% of this sum, $290,700, to be divided equally.

Pennsylvania Federal District Court: Barge Owner Entitled to Recover Attorney's Fees Due to River Terminal's Bad Faith Defense of Barge Breakaway Case

Mon River Towing, Inc. v. Industry Terminal and Salvage Co., 2010 WL 1337693 (W.D. Pa. Mar. 31, 2010), involved a claim by Mon River Towing, Inc. (“MRT”) against Industry Terminal and Salvage Co. (“ITS”) in which MRT alleged ITS negligently allowed MRT’s new barges, which it had chartered, to break free from ITS’s fleeting facility, damaging the barges. The court found ITS was negligent and liable for the breakaway. It further found ITS acted in bad faith during the case for continuing to contest liability despite knowing early on that it was liable for the breakaway, withholding “evidence that should have properly been part of early disclosure, discovery, and pretrial proceedings,” and presenting self-serving, inconsistent trial testimony that lacked credibility. As such, the court stated it would entertain a motion by MRT to recover attorneys’ fees and costs related to investigating and litigating the issues of bailment and liability.

Illinois Federal District Court: OSHA Violation Constitutes Negligence Per Se Under Jones Act

In Webb v. TECO Barge Line, Inc., 2010 WL 552309 (S.D. Ill. Feb. 12, 2010), the plaintiffs’ amended complaint alleged the plaintiffs sustained injuries as a result of being required to stay on defendant’s vessels during the onslaught of Hurricane Katrina. Plaintiffs further alleged a violation of OSHA, which they alleged constituted negligence per se under the Jones Act. In denying the defendants’ motion to dismiss or, in the alternative, strike the amended complaint, the court, relying on Practico v. Portland Terminal Co., 783 F.2d 255 (1st Cir. 1985), held that a violation of OSHA does constitute negligence per se under the Jones Act.

Pennsylvania Federal District Court: Plaintiff’s Jones Act Suit Untimely Filed and Thus Barred

In Reichert v. Mon River Towing, Inc., 2010 WL 419435 (W.D. Pa. Jan. 29, 2010), Brendan Reichert filed a Jones Act claim in federal court on November 9, 2009, alleging he was injured on July 16, 2006, by a faulty locking mechanism on a winch. Prior to filing his lawsuit in federal court, Reichert had filed a similar Jones Act claim in Ohio state court. MRT moved to dismiss the suit on the bases of lack of personal jurisdiction and, alternatively, due to forum non conveniens as Reichert’s accident occurred in Pennsylvania, the vessel and crew were maintained and primarily located in Pennsylvania, and MRT only occasionally dropped off barges for repair at a landing in East Liverpool, Ohio. On October 26, 2009, the Court of Common Pleas of Columbiana County, Ohio, granted MRT’s motion to dismiss for lack of personal jurisdiction and dismissed the suit without prejudice. The district court, in granting Mon River’s motion to dismiss the federal court suit, found that the 3 year statute of limitations for Jones Act claims was not tolled by the timely-filed state court suit because Reichert’s failure to file the original case in Pennsylvania was inexplicable and inexcusable and that Reichert had failed to act reasonably.

New Jersey Federal District Court: Insurer May Not Rely on the Doctrine of Uberrimae Fidei When Marine Insurance Contract On Its Face Allows it to Void Coverage for Only Intentional Misrepresentations

In New Hampshire Ins. Co. v. Diller, 678 F.Supp.2d 288 (D.N.J. Dec. 23, 2009), the insurer and insured entered into a marine insurance contract that contained the following clause: “Any relevant coverage(s) shall be voided if you intentionally conceal or misrepresent any material fact or circumstance relating to this insurance, or your insurance application, before or after a loss.” In denying the insurer’s motion for summary judgment, the court held that an insurer may not rely on the doctrine of uberrimae fidei when the marine insurance contract’s terms allow the insurer to void coverage for only intentional misrepresentations. The court also found there was a fact issue as to whether the insured harbored the requisite intent to misrepresent or conceal to permit rescission of the policy.

Louisiana Federal District Court: Waters of Privately Owned and Maintained Pipeline Canal Are Navigable for Purposes of Federal Admiralty Jurisdiction

In Landry v. Columbia Gulf Transmission Co., 2009 WL 4064107 (E.D. La. Nov. 23, 2009), the plaintiffs alleged “they were injured when, during a nighttime, recreational ‘frogging’ excursion, [plaintiff’s] aluminum boat hit a concrete bulkhead located in Columbia Gulf’s pipeline canal.” The defendants maintained that admiralty jurisdiction did not “exist over plaintiffs’ claims because the alleged injuries occurred in a privately owned, privately maintained pipeline canal that is blocked on one end by rocks and, on the other, by a concrete bulkhead.” In finding the pipeline canal navigable, the court noted that “two or three navigable waterways open into the pipeline canal between the site of the accident and the next bulkhead to the west” and that “small commercial vessels-utilized by fur trappers, alligator hunters, and fishermen, as well as Defendants' personnel-have entered, and traveled through this portion of the pipeline canal, via one or more of these navigable waterways, with the knowledge of Columbia Gulf and Continental.” The court thus found “the evidence reveals that this particular portion of the Columbia Gulf canal, with Defendants’ knowledge and, at least in some circumstances, express permission, has been rendered ‘susceptible of being used, in its ordinary condition, by uniting with other waters, as a continued highway for commerce with another state or foreign country.” The court also concluded that the requisite maritime connection existed because a vessel allision in the privately owned canal where it was found to be navigable has a potentially disruptive impact on maritime commerce. As such, the court refused to dismiss the plaintiffs’ claims on the basis of lack of admiralty jurisdiction.

New Jersey Federal District Court: Floating Homes at Marina on Channel Off Intercoastal Waterway Are "Vessels" Subject to Maritime Lien

In Sea Village Marina, LLC v. A 1980 Carlcraft Houseboat, 2009 WL 3379923 (D. N.J. October 19, 2009), the court held that "[b]ecause a floating home floats and can, as a practical possibility, be towed to move the owner's home to a new marina, it is a vessel unless it has been permanently moored."

U.S. Second Circuit Court of Appeals: Electronic Fund Transfers Being Processed by an Intermediary Bank in New York Are Not Subject to Attachment Under Rule B

In Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. Oct. 16, 2009), the Second Circuit, overruling its prior decision in Winter Storm Shipping Ltd. v. TPI, 310 F.3d 263 (2d. Cir. 2002), held that Electronic Fund Transfers (EFTs) being processed by an intermediary bank in New York were not subject to attachment under Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions of the Federal Rules of Civil Procedure. The Court specifically found that “[b]ecause EFTs in the temporary possession of an intermediary bank are not property of either the originator or the beneficiary under New York law, they cannot be subject to attachment under Rule B,” which allows attachment only of “defendant’s property.” Additionally, in overruling Winter Storm, the Second Circuit mentioned a report from The Clearing House Association, LLC that Winter Storm’s unforeseen consequences included an increase in litigation in the Southern District of New York where 33% of all lawsuits filed in the District between October 1, 2008, and January 31, 2009, were by maritime plaintiffs seeking to attach a total of $1.35 billion.

U.S. Second Circuit Court of Appeals: Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 2009 WL 3319675 (2d Cir. Oct. 16, 2009), Applies Retroactively

In Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d Cir. Dec. 22, 2009), the Second Circuit held that its decision in Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 2009 WL 3319675 (2d Cir. Oct. 16, 2009), discussed above, applies retroactively because it directly affected how the district court may obtain personal jurisdiction over defendants.

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Lagniappe

Post-Accident Checklist:

If you or others are injured, call 911 for EMS and, if applicable, local or state police, sheriff, etc. Following a commercial vessel accident on U.S. navigable waters, meeting certain thresholds http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/46cfr4.05-1.pdf), the owner, agent, master, operator, or person in charge must immediately (24/7) notify (call) the nearest USCG Sector Office, Marine Inspection Office, or Coast Guard Group Office, followed within five (5) days by a written report on USCG Form CG-2692 (http://www.uscg.mil/forms/cg/CG_2692.pdf). U.S. commercial vessel operators must also comply with USCG post-accident drug & alcohol testing and reporting regulations. Oil and chemical spills must be immediately (24/7) reported to the National Response Center (http://www.nrc.uscg.mil/nrchp.html) (800-424-8802 or 202-267-2675) and any other applicable state and/or local agencies.
If no EMS/hospital treatment is obtained, see your own doctor or hospital Emergency Room ASAP, as your medical condition indicates.
Get photos, even with a cell phone or disposable camera, of the accident scene, vessels, vehicles, equipment, products, involved.
If possible, preserve the accident scene and any vessels, equipment, or products, involved, until it can be investigated.
Write down the name, address, and phone number of all witnesses.
Immediately report the accident (if aboard a vessel, to the captain or other in charge), orally and in writing, describing the highlights of how all persons, vehicles, equipment, and/or products played a part.
Try to avoid discussing the accident or giving a written or recorded statement until you have the opportunity to talk to your lawyer. If aboard a commercial vessel and a Coast Guard investigation is underway, most USCG personnel will allow you to have a lawyer present. You can call G&O 24/7 toll free at 1-877-404-6529 (1-877-40-GO-LAW).

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Reader Feedback

We truly appreciate and welcome your feedback – positive, negative, or in-between. Just e-mail Fred Goldsmith at fbg@golawllc.com.
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Admiralty Update™ Copyright © 2010 Goldsmith & Ogrodowski, LLC. All rights reserved. Redistribution permitted with attribution. This newsletter is not intended to be legal advice or the practice of law. If you wish legal advice, please contact a lawyer licensed in your jurisdiction.

2009-10-29T12:09:00.008-04:00

Welcome to the September 29, 2009, issue of Admiralty Update, the copyrighted and trademarked e-newsletter on developments in U.S. Coast Guard regulations and state and federal court decisions of interest to commercial and recreational mariners. It is written, edited, and produced by Frederick B. Goldsmith and E. Richard Ogrodowski of Goldsmith & Ogrodowski, LLC, based in Pittsburgh, Pennsylvania, U.S.A. If you have friends or colleagues who wish to subscribe, they can use the signup box appearing on the Admiralty Update homepage. We will not share your e-mail address and related information with anyone. We hope you enjoy the newsletter and wholeheartedly encourage your feedback.

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This issue's photo was taken from a yacht offshore Greece.
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G&O Personnel News

› On October 22, 2009, Rich Ogrodowski served as moderator of a continuing legal education seminar entitled, "Review and Analysis of the 'Top ESI Cases.'" The program, presented by the Western Pennsylvania Chapter of the Federal Bar Association, was held at the United States Courthouse in Pittsburgh and included a distinguished panel featuring U.S. District Judges Donetta W. Ambrose and Nora Barry Fischer, as well as two e-discovery law experts. The panel focused on cases decided after the adoption in December 2006 of revised Federal Rules of Civil Procedure on Electronically Stored Information, or "ESI."

› On October 9, 2009, Rich, a magna cum laude graduate in economics and political science from Westminster College, was invited back to the school to deliver a Distinguished Alumni Lecture on "Reflections on Law School and a Career in the Law." He also spoke before a "Constitutional Law: Government Powers" class on our law firm's practice as it relates to Constitutional law.

› On July 14, 2009, Fred Goldsmith co-moderated a continuing legal education seminar entitled, "PLAIN TALK ON DEPOSITIONS: Four Judges Speak to State and Federal Court Deposition Practice and Strategy in Discovery and Trial in Western Pennsylvania." Sponsors of the program were the Allegheny County Bar Association’s Federal Court Section, the Judges of the U.S. District Court for the Western District of Pennsylvania, and the Pennsylvania Bar Association’s Federal Practice Committee.
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Recent U.S. Coast Guard Notices in the Federal Register

Lower Mississippi River Waterway Safety Advisory Committee to Meet 10/7/09

In the September 17, 2009, Federal Register, the Coast Guard advises that LMRWSAC will meet on the above date to discuss various issues concerning nav safety on the LMR and related waterways. The Committee will meet at the New Orleans Yacht Club. See link for notice and more details.

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Recent State & Federal Court Maritime Decisions

U.S. Eighth Circuit Court of Appeals: General Maritime Law Does Not Allow Spouses of Non-Seafarers to Recover Loss of Consortium Damages When Non-Seafarer Injured Beyond U.S. Territorial Waters

In Doyle v. Graske, 2009 WL 2766748 (8th Cir. Sep. 2, 2009), Daniel Doyle was injured in an accident offshore Grand Cayman Island. He filed suit in Nebraska state court, and the defendant, Leland Graske, removed the suit to federal court invoking admiralty jurisdiction. The district court awarded compensatory damages to Doyle and loss of consortium damages to Doyle's spouse. The Eighth Circuit, addressing an issue of first impression in the Circuit, held that the general maritime law does not allow recovery of loss of consortium damages by the spouses of non-seafarers negligently injured beyond the territorial waters of the United States. In reaching its holding, the Eighth Circuit sought guidance on how to approach this issue of first impression from the recent U.S. Supreme Court decision in Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (June 25, 2009).

Louisiana Federal District Court: Loss of Society/Consortium Damages Not Recoverable Under General Maritime Law By Relatives and Estates of Passengers of Pleasure Vessel Who Died in Collision With Tug-Barge Unit in Alabama Territorial Waters

In In re Maryland Marine, Inc., 2009 WL 2047269 (E.D.La. July 9, 2009), the court agreed with the owner of the tug-barge that the general maritime law prohibits the recovery of loss of society damages for the wrongful death of a pleasure boat passenger, who is neither a seaman nor a longshoreman, in state territorial waters. The parties conceded Alabama's wrongful death statute did not apply. The court found the U.S. Supreme Court's recent decision in Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (June 25, 2009), did not alter the result. The trial judge did, however, concede this area of the law is susceptible to change in the near term and thus agreed to present the loss of society award to the jury for a finding, but not to include it in the judgment, to avoid a retrial in the event the law does change.

Louisiana Federal District Court: Plaintiff Seaman Entitled, After Atlantic Sounding, to Seek Punitive Damages Under General Maritime Law for Defendant's Alleged Gross, Willful, and Wanton Negligence

In Rogers v. Resolve Marine, 2009 WL 2984199 (E.D. La. Sept. 11, 2009), the plaintiff seaman was allowed, in the wake of the United States Supreme Court's decision in Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009), and Judge Berrigan's decision in Maryland Marine, discussed above, to file an amended complaint seeking punitive damages under the general maritime law for the defendant's alleged alleged gross, willful, and wanton negligence in causing the plaintiff's injuries.

Ohio Federal District Court: Seaman's Maintenance & Cure Punitives Case May Proceed Post Atlantic Sounding

In Maddux v. United States, 2009 WL 2982969 (S.D. Ohio September 10, 2009), 37-year-old seaman, James Maddux, was working on a vessel docked in Guam and when returning from shore leave claims he fell from a stairway into a safety net which he claims was defective and improperly rigged, allegedly causing him to fall fifteen feet to the deck below. Maddux sustained a complete spinal cord injury at T10-12 and was rendered a paraplegic. Maddux claimed Maersk Line, Limited Honeywell Technology Solutions, Inc. are vicariously liable for his injuries pursuant to the Jones Act, the Public Vessels Act, the Suits in Admiralty Act and the general maritime law of the United States, or alternatively Longshore and Harbor Workers' Compensation Act. He claimed negligence and unseaworthiness against all the defendants and requested damages, including punitive damages as to both his GML unseaworthiness and maintenance and cure claims and his GML negligence claim against the non-employer defendant. Citing Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009), the court declined to dismiss Maddux's punitive damages claims as to his maintenance and cure claim and deferred ruling on the motion to dismiss the balance of his punitive damages claims until the completion of discovery.

U.S. Seventh Circuit Court of Appeals: Pleasureboat Passenger Injured in Accident with Towboat Could Maintain Preexisting State Court Suit if She Stays Suit During Pendency of Limitation Act Proceedings and District Court Erred in Requiring Her to Dismiss State Suit

In American River Trans. Co. v. Ryan, 2009 WL 2616254 (7th Cir. Aug. 27, 2009), Kerrie Vesolowski was injured when the motor boat on which she was a passenger collided with a barge pushed by a towboat owned and operated by Artco. Vesolowski sued ARTCO in the Circuit Court of Cook County, Illinois. Artco then filed a complaint in federal court under the Limitation of Liability Act, 46 U.S.C. § 30501 et seq. Pursuant to an order of the district court, Vesolowski stayed her state suit after the filing of the Limitation Action. As a sanction for allegedly prosecuting the state suit against ARTCO during the stay, the district court ordered Vesolowski to dismiss the state suit, which Vesolowski did. In finding the district court abused its discretion in requiring Vesolowski to dismiss the state suit, the Seventh Circuit held that a suitor can maintain a preexisting state claim provided they stay the suit during the pendency of the Limitation Act proceedings, and that Vesolowski's actions in filing in the state court suit amended complaints, adding new defendants, rule numbers, and theories of negligence did not warrant dismissal of her state court suit.

U.S. Ninth Circuit Court of Appeals: Sea-Doo Accident in Designated Personal Watercraft Portion of San Diego's Mission Bay Within Admiralty Jurisdiction and Thus Limitation of Liability Act Complaint By PWC Owner May Be Viable

In In re Complaint of Mission Bay Jet Sports, LLC, 2009 WL 1773187 (9th Cir. June 24, 2009), the California trial court dismissed for lack of admiralty jurisdiction tort claims brought by two women who were seriously injured when, as passengers, they were thrown off a Sea-Doo jet-propelled personal watercraft allegedly negligently operated by the PWC's operator, in an area of San Diego's Mission Bay reserved for such vessels. The operator, while making tight turns at 25 MPH, threw the women off once without injury, they asked him to stop this type of operation, they got back on the craft, but he persisted, the second time injuring the women with the PWC's propulsion jet. The appeals court reversed the trial court's ruling that the accident and its connection to traditional maritime activity did not bring it within the court's admiralty jurisdiction, but remanded the case to the trial court to determine facts bearing on applicability of the Vessel Owners' Limitation of Liability Act.

Louisiana Federal District Court: Shipowner Asserting Limitation of Liability Act Defense in Its Answer Does Not Need to Post Security

In State of Louisiana v. Kition Shipping Co., Ltd., 2009 WL 2849645 (M.D. La. Sep. 2, 2009), a claimant filed a motion to require the shipowner to post security due to its assertion of the Limitation of Liability Act defense in its answer. The district court, noting that the Fifth Circuit has never addressed this issue, found the security requirement in 46 U.S.C. § 30511 of the Limitation of Liability Act inapplicable where limitation of liability has been asserted as a defense.

U.S. Third Circuit Court of Appeals: Commuter Seamen Entitled to Maintenance and Cure

In Delaware River & Bay Authority v. Kopacz, 2009 WL 3064708 (3rd Cir. Sept. 25, 2009), the court held commuter seamen, who eat and sleep on land, are just as entitled as blue water seamen to maintenance and cure ("commuter seamen enjoy the same right to maintenance as their blue water counterparts"), and the shipowner was not relieved of its maintenance and cure obligation due to the injured seaman's receipt of Social Security disability benefits, and long-term disability payments provided by the shipowner. The court noted the U.S. Supreme Court has shown no inclination to depart from its long-established solicitude for seamen and, "[u]ntil it does so, we decline to depart from the 'uniformly enforced' rule entitling deep water and commuter seamen to maintenance."

New York Federal District Court: Collective Bargaining Agreement Limiting Maintenance Payments to Ninety Consecutive Days Is Valid

In Stanton v. Buchanan Marine, L.P., 2009 WL 2447823 (S.D.N.Y. Aug. 10, 2009), the plaintiff asked the court to invalidate the provision of the collective bargaining agreement limiting maintenance payments to 90 consecutive days regardless of whether an injured seaman has reached maximum medical improvement. The district court denied the motion, finding the provision to be valid and the product of legitimate negotiation which was agreed to by the union in exchange for other compensation and benefits.

Louisiana Federal District Court: Chief Engineer Solely Responsible for Causing His Own Fall and Injuries

In Taylor v. Bisso Towboat Co., 2009 WL 2707452 (E.D. La. Aug. 25, 2009), Edmund Taylor claimed he slipped on soapy water on the deck of a Bisso towboat, causing him to fall down a set of stairs, injuring his leg. After a non-jury trial, the district court concluded there was no evidence of soapy water and that the sole cause of Taylor's fall and injuries was his negligence in wearing sandals, in direct violation of Bisso's safety rules. After dismissing Taylor's negligence and unseaworthiness claims, the district court awarded Taylor $180 for outstanding maintenance and cure.

U.S. Sixth Circuit Court of Appeals: Liability insurance Policy On Yacht Dealer and Marina Outside of Admiralty Jurisdiction Due to its Many Non-Maritime Coverages

In New Hampshire Ins. Co. v. Home Sav. and Loan Co. of Youngstown, Ohio, 2009 WL 3029658 (6th Cir. September 24, 2009), disagreeing with the insurer who argued its policy, as a "marine insurance policy," was sufficient to invoke federal admiralty jurisdiction for a declaratory judgment action, the court held a Yacht Dealer/Marina Operators general liability insurance policy was not a "maritime contract" and thus insufficient to invoke federal admiralty jurisdiction. The court wrote the test was whether the contract's "primary objective" has an "essentially maritime nature" and relates to "maritime commerce," and to conduct this analysis it had to examine the insurance policy "as a whole." The court then catalogued the non-maritime coverages within the policy (including its "Truth in Lending Errors and Omissions Liability Coverage") and concluded:

"Simply because a contract involves a marina does not mean it necessarily is a maritime contract. We must look at the nature of the contract and, in the case of an insurance policy, consider the specific interests insured. Applying that distinction in this case, we conclude that this insurance policy covering a yacht dealership and a marina falls outside the scope of our maritime jurisdiction, despite the fact that some of the services provided by the marina may relate incidentally to or facilitate maritime commerce. Like other courts that have addressed similar issues, we also are reluctant 'to open the courthouse doors to a surge of litigation concerning transactions that may only tangentially involve a maritime business or a ship owner merely because one is a party in the dispute.' Illinois Constructors Corp. v. Morency & Assoc., 794 F.Supp. 841, 843 (N.D.Ill. 1992). This concern is all the more pressing where, as here, the contract at issue is multifaceted and covers a diverse range of interests, many of which have little bearing on maritime commerce."

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Lagniappe

Post-Accident Checklist:

If you or others are injured, call 911 for EMS and, if applicable, local or state police, sheriff, etc. Following a commercial vessel accident on U.S. navigable waters, meeting certain thresholds (http://edocket.access.gpo.gov/cfr_2008/octqtr/pdf/46cfr4.05-1.pdf), the owner, agent, master, operator, or person in charge must immediately (24/7) notify (call) the nearest USCG Sector Office, Marine Inspection Office, or Coast Guard Group Office, followed within five (5) days by a written report on USCG Form CG-2692 (http://www.uscg.mil/forms/cg/CG_2692.pdf). U.S. commercial vessel operators must also comply with USCG post-accident drug & alcohol testing and reporting regulations. Oil and chemical spills must be immediately (24/7) reported to the National Response Center (http://www.nrc.uscg.mil/nrchp.html) (800-424-8802 or 202-267-2675) and any other applicable state and/or local agencies.
If no EMS/hospital treatment is obtained, see your own doctor or hospital Emergency Room ASAP, as your medical condition indicates.
Get photos, even with a cell phone or disposable camera, of the accident scene, vessels, vehicles, equipment, products, involved.
If possible, preserve the accident scene and any vessels, equipment, or products, involved, until it can be investigated.
Write down the name, address, and phone number of all witnesses.
Immediately report the accident (if aboard a vessel, to the captain or other in charge), orally and in writing, describing the highlights of how all persons, vehicles, equipment, and/or products played a part.
Try to avoid discussing the accident or giving a written or recorded statement until you have the opportunity to talk to your lawyer. If aboard a commercial vessel and a Coast Guard investigation is underway, most USCG personnel will allow you to have a lawyer present. You can call G&O 24/7 toll free at 1-877-404-6529 (1-877-40-GO-LAW).

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Reader Feedback

We truly appreciate and welcome your feedback – positive, negative, or in-between. Just e-mail Fred Goldsmith at fbg@golawllc.com.

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Admiralty Update™ Copyright 2009 Goldsmith & Ogrodowski, LLC. All rights reserved. Redistribution permitted with attribution. This newsletter is not intended to be legal advice or the practice of law. If you wish legal advice, please contact a lawyer licensed in your jurisdiction.