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Articles Posted in Seaman Injury Settlements

Florida_Injured_Maritime_WorkerA Florida Federal court has recently found that an injured maritime worker has a right to a jury trial for his Jones Act negligence, unseaworthiness and failure to provide maintenance and cure claims asserted as counter-claims to his employer’s admiralty declaratory judgment action.

Facts of the Case

In this case, a maritime worker sustained a back injury while standing watch aboard a ship.  From this incident, he demanded that the ship owners provide him maintenance and cure benefits which is benefit owed to seamen who are injured while in call of the vessel regardless of fault. Two days after receiving the maintenance and cure demand, the ship owners filed a declaratory judgment action under the Declaratory Judgment Act seeking a Florida Federal court to determine that maintenance and cure is not owed because the maritime worker failed to qualify as a seaman.  In bringing the declaratory judgment action, the ship owners invoked the court’s admiralty jurisdiction which does not carry the right of a jury trial.  The injured maritime worker answered the declaratory judgment action and filed a counter-claim against the ship owners seeking damages under the legal theories of Jones Act negligence, unseaworthiness and failure to provide maintenance and cure.  Along with the counter-claim, the injured maritime worker demanded a jury trial.  The ship owners moved to strike the jury trial demand on the basis that jury trials are not available in admiralty proceedings.

Tug_Boat_Accident_Case-300x228An injured tug boat captain has been awarded over 3 Million dollars due to a slip and fall accident.  In August of 2015, the plaintiff was a tug boat captain.  His job duties included steering the vessel and supervising the crew.  On the morning of the accident, the tug was pushing two loaded chemical barges towards a fleeting area.  At approximately 5:00 a.m. the captain was awakened by the sound of the tug’s engines backing down.  He left his bunk in his athletic shoes and went to the helm to assist the pilot who was struggling to align the barges in the fleeting area.  He took over the controls and radioed for another tug in the fleet to assist.  With help from the assisted tug, the plaintiff was able to straighten the barges.  As the captain was about to return to his cabin to prepare for his upcoming shift, a deckhand reported that diesel or some other fluid was spraying from a generator in the engine room.  The captain determined that the safest approach to handle the situation was to simply switch generators rather than using the emergency kill switch as that would cause the entire tug to lose power.  In order to switch generators, the captain was required to manually shut off the leaking generator which was accessible only from the engine room floor.  The captain proceeded down the ladder followed by the deckhand.  Upon reaching the engine room deck both the captain and deckhand slipped and fell on accumulated diesel sprayed from the generator.  From this fall, the captain sustained a severe hip injury including a fracture to the right femoral head.  The injured captain required emergency surgery where four screws were placed in his hip to stabilize and reduce the femoral fracture.  The captain also injured his lower back.

Unseaworthiness of the Tug

It was later learned that the leak was caused by a faulty fuel pressure gauge.  The stem which connected the gauge’s valve to the fuel filter housing had sheered in half which caused diesel to spray from the hole.  From this, the Court found that the tug was not reasonably fit for its intended purpose and was therefore unseaworthy.  The tug company argued that the captain was comparably negligent as he entered the engine room in his athletic shoes and not the steel-toed boots required by the company’s safety policy.  The Court rejected this argument finding that the captain’s wearing of athletic shoes was not the legal cause of the accident as the deckhand, who was wearing the required steel-toed boots per the company’s safety policy, also slipped on the leaked diesel.   The tug company next argued that the captain was negligent for his decision to enter the engine room to manually switch the generators as opposed to shutting down power to the tug via the kill switch.  This argument was also rejected.  The Court, applying  maritime law precedent, found that in emergency situations a seaman’s actions cannot be judged as they would be in ordinary circumstances.  The Court then reasoned that the captain had to choose between shutting off all power to the tug, which was pushing two loaded chemical barges towards the fleeting area, or entering the engine room to see if he could stop the leak by switching generators. Under these circumstances, the Court determined that the captain acted reasonably and was not negligent by entering the engine room.

Injured-Jones-Act-Seaman-LawsuitWhen bringing a lawsuit dealing with an injured Jones Act seaman claim, much thought must be given to what court system, federal or state, the lawsuit should be filed and whether it is preferable to have a judge or jury decide the facts of the case. Maritime law affords injured seaman several options each of which has its pros and cons. In the case of Bell v. Westbank Fishing LLC, the decision was made to file the seaman’s injury claim in federal court without asking for a jury. Once filed in the federal court, Westbank, the defendant employer, filed formal demand seeking a jury, not the federal judge, decide the facts of the case, if it was liable for the accident, and if so, how much compensation the injured seaman is entitled to receive.

The Injured Seaman Has the Right to Demand a Jury Trial

The injured seaman sought to strike his employer’s jury demand arguing his employer has no legal right to a jury trial because of the way the compliant invoked the federal court’s jurisdiction. The complaint filed by the seaman indicated that the court had jurisdiction by what is known as a federal question. Federal courts have jurisdiction to decide claim brought under a federal statute. The Jones Act, which provides injured seamen a negligence claim against their employers, is a federal statute. The complaint was silent as to any other basis of federal jurisdiction. The employer argued that when jurisdiction is based upon the Jones Act, both the injured seaman and the employer have a right to demand a jury. The employer also argued that it has a Constitutional right to a jury trial under the Seventh Amendment to the Constitution.

Jones_Act_Status_LawAn interesting case has been decided as to whether a pleasure yacht captain properly alleged Jones Act seaman status entitling him to seek damages under the federal personal injury statute as well as the maritime law maintenance and cure obligation.  The captain started working aboard the private pleasure yacht in 2010 to perform maintenance and repair jobs on the yacht.  He was eventually hired to take over the position of the yacht’s captain on a part-time basis in additions to his general maintenance and repair duties.  In late 2014, the part-time captain position became full-time.  Under the terms of the employment agreement, he was paid a salary of $3,500 per month and lived aboard the yacht.  As the yacht’s master, he operated the vessel during moves to Savannah, Georgia and Charleston, South Carolina for boat shows and prepared the yacht for visits by the owners.  On April 25, 2016, while preparing to move the yacht from Hilton Head Island to Charleston, when he fell approximately 7 feet onto the concrete dock and landed on his elbows.  Injuries sustained from the fall required multiple surgeries.  He was terminated two months later.

The captain filed a lawsuit against his employer for failure to pay maintenance and cure and for damages arising out of the negligent failure to provide medical treatment under the Jones Act. The employer moved to dismiss the complaint arguing that the complaint failed to plead facts in support of his status as a seaman under the Jones Act.

Legal Analysis

Estis_Rig_23-300x188The Federal Fifth Circuit Court of Appeals have affirmed a trial court’s damages award in a Jones Act seamen’s wrongful death and personal injury lawsuit.  The case involved an accident aboard a barge supporting a truck-mounted drilling rig (pictured to the right).  On March 9, 2011, crewmembers of the barge were attempting to straighten a catwalk extending from the rig’s derrick which had twisted the night before.  While preforming this maneuver, the truck and rig toppled over fatally pinning one crewmember between the derrick and the mud tank.  Three other crewmembers sustained personal injuries in the accident.

The personal representative of the decedent seaman, along with the injured seaman, filed lawsuits under the Jones Act and general maritime law against the employer drilling company.  The drilling company conceded liability but contested the damages sought by the estate and the survivors.   After a trial lasting a week, the judge issued a judgment awarding damages to the decedent crewmember’s estate for pre-death fear and conscious pain and suffering as well as lost of past and future financial support of his dependent daughter.  The court also awarded, among other categories of damages, future medical expenses and lost future earnings to the surviving seamen.  The drilling company appealed the award.

Challenge to Damages Awarded to the Decedent Seaman

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A Florida panhandle diving accident leaves one commercial diver dead and one injured in an accident last month near Tyndall Air Force Base near Panama City, Florida. The accident occurred on April 7th, 2016, but very few details of the accident have emerged. Media report that four divers were operating out of an inflatable zodiac boat when the accident occurred around 2:00 in the afternoon causing the death of one diver and another diver to be hospitalized with injuries. The Coast Guard is investigating.

Commercial diving is a high risk career which involves all of the risks of recreational diving such as drowning, hypothermia, decompression sickness, air embolism, and equipment failure but commercial divers often face additional hazards of underwater construction zones which include power tools, welding, cutting and demolition. When accidents happen it can leave the diver with disabling injuries or, in the event of death, the diver’s family may not only lose their source of support, but they may also be left with many unanswered questions about what caused the accident that took their loved one.
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Commercial divers injured during diving accidents may have legal rights to recovery under federal admiralty and maritime law. While a non-maritime legal expert may be familiar with state negligence or wrongful death law, a maritime attorney will best be able to determine whether maritime law applies. This could mean the difference between the amount of recovery for your injury, the time period in which you must file your injury or wrongful death claim, and even whether recovery is possible at all.

What to do if you are injured in a diving accident

It is important to know your rights and to know what benefits you may be entitled to if a diving injury or tragedy happens to you. The Board Certified Admiralty and Maritime Law Attorneys at Brais Brais Rusak represent diving accident victims and their loved ones with over 70 years of combined experience. Brais Brais Rusak have recovered for victims under maritime law through the Death on the High Seas Act, the Jones Act, failure of employers to provide maintenance and cure, and unseaworthiness among other maritime or state law based causes of action.
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Miami Jones Act Lawyer.jpgIn a rather shocking opinion, the Eleventh Circuit Court of Appeals has found seamen who develop ailments, including heart disease, cause by work related stress have no claim against their employers under the Jones Act.

The Jones Act provides seamen injured by the negligence of their employers a cause of action to recover money damages to compensate them for pain, suffering, disfigurement and lost wages caused by the injury. This Act was traditionally liberally construed in the favor of injured seamen. The recent case of Skye v. Maersk Line, unfortunately, has restricted the scope of the Jones Act. In that case, a chief mate developed left ventricular hypertrophy (a thickening of the heart wall of the left ventricle) as a direct result of excessive work hours and an erratic sleep schedule caused by the demands of his employer. The seafarer brought a lawsuit in Miami Federal Court arguing his employer caused his heart disease by negligently overworking him to the point of fatigue. The shipping company filed a motion requesting the court dismiss the claim as a matter of law arguing that no such relief in provided by the Jones Act. The trial court denied the motion and a trial was conducted. The jury found the shipping company 25% liable and awarded $2,362,299.00 to the injured seaman. The court reduced the award to $590,574.75 to account for the seaman’s 75% comparative negligence. The employer appealed the decision.

The Eleventh Circuit analyzing the Jones Act and Supreme Court precedent discussing the Federal Employers Liability Act (a companion statute to the Jones Act) concluded seamen are only protected against the negligent conduct of their employers that imminently threatens them with physical impact. Based upon this legal framework, the Eleventh Circuit found injuries caused by work-related stress are not actionable under the Jones Act because an arduous work schedule and irregular sleep schedule are not “physical perils.”

Florida Complex Regional Pain Syndrome Lawyers.jpgThe maritime attorneys Keith Brais & Richard Rusak of the Brais law firm had the honor to represent Mr. Lloyd Hughes. Mr. Hughes was an assistant engineer for Ft. Worth, Texas based CSC Applied Technologies, LLC. CSC Applied Technologies was awarded a contract from the United States Navy to furnish all personnel, services and such other resources necessary to maintain and operate the Atlantic Undersea Test and Evaluation Center (AUTEC). Located on Andros Island in the Bahamas, AUTEC’s mission is to provide instrumented operational areas in a real world environment to satisfy research, development, test and evaluation requirements and operational performance assessment of war fighter readiness in support of the full spectrum of maritime warfare.

As a part of his shipboard responsibilities, Mr. Hughes was required to maintain, repair and replace, as needed, shipboard light fixtures aboard the Naval research vessel RANGE ROVER. On April 8, 2010, Mr. Hughes was attempting to replace a light bulb within an exterior halogen light fixture mounted to the fascia high above one of the ship’s decks. As he was trained and as he’d done on numerous previous occasions, Mr. Hughes utilized a ladder to reach the light fixture. He loosened some and later all of the bolts holding the fixture in place in order to lower the fixture in a controlled fashion so he could work on it on deck. The fixture, however, did not lower away from the fascia as expected and, instead, remained fixed to the fascia because it had been painted over which caused it to be stuck. At this point, Mr. Hughes carefully pulled on the light fixture to break it free when it broke loose unexpectedly. Mr. Hughes’ momentum, awkward position on top of the ladder and the unavailability of a co-worker caused him to fall off the ladder and strike the deck.

Mr. Hughes suffered serious injuries, including but not limited to: (a) a comminuted distal left tibia fracture a/k/a pilon fracture, (b) a proximal fibula fracture, and (c) a mild acute compression fracture superior endplate of the L1. Additionally, he suffered a broken small toe and badly bruised tail bone. He also developed compartment syndrome and later underwent bilateral (both sides) fasciotomy of his left leg. These surgeries left horrific scars to Mr. Hughes’ leg. Later he was diagnosed by his treating neurologist with Complex Regional Pain Syndrome (CRPS) a/k/a Reflex Sympathetic Dystrophy (RSD) in his left leg. CRPS or RDS is a condition whereby a person experiences a burning type pain, tenderness and swelling of an extremity associated with varying degrees of sweating, warmth and/or coolness, flushing, discoloration and shiny skin. His injured required him to undergo multiple surgical procedures including a fasciotomy.