The Admiralty Law Blog

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Stephen P. Moschetta was recently featured on the John Williams Talk Radio Show airing on WCCO, a CBS affiliate in Minneapolis, Minnesota, to discuss the Costa Concordia cruise ship disaster.

On January 13, 2012, the Costa Concordia, carrying over 4,000 passengers and crew, deviated from safe travel lanes and sank on a reef off the island of Giglios, Italy, after striking an underwater rock formation.

The Italian-flag cruise ship left the Civitavecchia port of Rome with 600 new passengers and had only been at sea for a few hours when it ran aground.  According to reports, the crew had not conducted the so-called “muster drill” for the passengers who just boarded.  Unfortunately, the safety drill was not scheduled until the following day.

The ship approached the island of Gilgio from the south but sailed too close to the coastline and struck a rocky reef a few hundred yards out.  Passengers report that the ship violently listed (tilted) and eventually capsized.

The master of the ship, Captain Francesco Schettino, is under house arrest and is under investigation for crimes including manslaughter.  The owner of the Concordia, Costa Cruises, a Carnival Cruise Lines company, has placed all blame on the captain claiming “human error” was the cause of the disaster.  However, it is difficult to imagine that Costa Cruises was unaware that the Concordia was so close to land given today’s technology.  Also, this disaster demonstrates the importance of crew training and safety policies.  For cruise ships sailing from ports in the United States, “muster drills” are the first order of business once all passengers are on board.  Cruise ship operators must promulgate policies and procedures to ensure the safety of all passengers while on the ship, and particularly during evacuations to life boats.

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Photograph by WTAE, Pittsburgh

In the early morning hours of April 27, 2011, four (4) barges broke free from the Carl L. Johnson, which is operated by Consol Energy.  U.S. Coast Guard officials said the barges broke loose when a wire snapped as crewmembers were trying to face up (connect) to a barge.  While it has not been reported, in my opinion, the high water conditions likely played a role in the barge breakaway.

In the early morning hours of April 27, 2011, four (4) barges broke free from the Carl L. Johnson, which is operated by Consol Energy.  U.S. Coast Guard officials said the barges broke loose when a wire snapped as crewmembers were trying to face up (connect) to a barge.  While it has not been reported, in my opinion, the high water conditions likely played a role in the barge breakaway.
One barge owned by Marathon Ashland was carrying coal tar light oil which contains benzene, a hazardous and highly flammable substance, while the other three barges were jumbo open-hopper barges carrying non-flammable loads.  The chemical barge struck a railroad bridge near Neville  Island and became lodged there along with another barge.  A third barge carrying steel coils sank.  The fourth barge carrying coal slag continued down the Ohio  River until it struck the Emsworth Lock and Dam.
Fortunately, the U.S. Army Corps of Engineers in Pittsburgh was able to safely retrieve the chemical barge, with the help of several towing companies and their deckhands.  Given the highly flammable and toxic elements in the chemical barge, the Fleming Park Bridge that connects Neville Island to Stowe  Township was closed.  Nearby elementary and middle school students were dismissed early as a precaution in case of an explosion during the barge removal.  Specifically, officials were concerned that if the benzene ignited during the removal, the fumes –which contain carcinogens known to cause cancer and other respiratory problems – could affect the school populations.
During the retrieval of the chemical barge, crews of several towboats were clearly concerned about a potential explosion since they tied four other barges together end-on-end so they could reach the benzene barge and keep the motor vessels (known as towboats), which contain diesel fuel, as far as possible from the chemical barge.  Then, with a tow boat stationed at the other end of the barges, the vessel and her crew guided the benzene barge to safety.  The other two barges were rescued as well.  However, before the Coast Guard can arrange for a salvage company to safely lift the sunken barge from the river bottom, the stage of the river must drop considerably from flood stage.
Those of us who are involved in maritime litigation on the inland waters of the United States know that high water or “flood” conditions often produce barge break-away situations that can sometime result in damage to property along the rivers aside from the damage to the runaway barge.  Other times, deckhands or pleasure boaters are injured or killed.
The crewmembers aboard the Carl L. Johnson and other towboats involved in the rescue effort are called “deckhands.”  A deckhand is an ordinary seaman who assists in transiting barges or other vessels along the navigable waters of the United States.  The City of Pittsburgh and surrounding communities have considerable commercial maritime traffic aside from recreational boats (pleasure craft, jet-skis) given the Monongahela and Allegheny Rivers converge at the “the point” to create the Ohio River. The Port of Pittsburgh was recently ranked the fifth busiest inland port in the U.S. based on tonnage that moves through our area.  Products such as coal, fuel, sand, gravel and steel, are moved in and out of southwestern Pennsylvania by towboats crewed by deckhands.  The rivers provide a relatively inexpensively mode of transportation for these cargos.

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My wife and I vacationed in Cape Canaveral in November 2010, staying in a large condominium on the ocean front.  As part of my daily routine – trying to unwind from a year’s worth of stress – I would walk on the beach early each morning.

When I went to the beach on the morning of November 29th, I was shocked to see a massive cargo barge aground on the beach directly in front of our condominium. On further inspection, it was the Mobro 1210, a 144-foot uninspected cargo barge owned and operated Beyel Brothers Crane & Rigging Services of Cocoa Beach, Florida.

I later read in the Professional Mariner magazine (March 2011 Edition) that the Mobro 1210 was carrying spent shell casings from torpedo munitions and other U.S. Navy cargo when she separated from the tug boat Megan Beyel at 1:40 am on November 29, 2010, near the entrance to Port Canaveral. Apparently, the Mobro 1210 broke free roughly a quarter mile from the jetties marking the entrance to Port Canaveral.  According to a spokesman for the U.S. Coast Guard, winds were gusting as high as 25 mph, and a weather buoy reported 4-foot seas shortly before the incident.  The Megan Beyel and the Mobro 1210 were chartered through the U.S. Navy’s Military Sealift Command.  MSC operates noncombatant, civilian-crewed ships that, among others, support U.S. Navy ships and move military cargo and supplies used by deployed U.S. forces.

In any event, I finished my walk after I and other spectators gathered on the beach to witness the surreal site.  When I returned to the beach after lunch that day (around 2:00 pm), the barge was gone, having been refloated.

As a maritime lawyer on vacation, I was surprised to witness a maritime casualty which thankfully caused no damage to person, property or the environment.

- Joseph P. Moschetta

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News: Two Missing After Boat-Barge Collide (NECN)

The National Transportation Safety Board is investigating the collision of a Ride the Ducks tour boat and a city-owned barge that injured eight people and killed two.  The incident occurred on the Delaware River near Philadelphia, Pennsylvania, on July 8, 2010.

According to the Associated Press, The Caribbean Sea, a tugboat owned by K-Sea Transportation Partners of East Brunswick, New Jersey, was directing the barge downriver on Wednesday afternoon.  At the same time, the Duck boat, carrying thirty-five passengers and two crew members, sat idly in the water, due to an engine fire, for about ten minutes before the collision.  All but two passengers survived.  The Coast Guard and NTSB are investigating the crews’ conduct before and after the collision, particularly, the Duck boat’s inspection history and the apparent mechanical problems.

CNN News Wire reported that searchers located the sunken boat about fifty feet below the river’s surface.  The investigation will continue in order to discover the reason for this incident; various causes should be explored including the failure of Ride the Ducks tours to provide a seaworthy vessel and the negligence of the K-Sea tugboat/barge operators.

. . . Various Navigational “Rules of the Road” Implicated.

Although the NTSB and media sources have focused primarily on the seaworthiness of the Duck boat (citing possible lack of maintenance, etc.), rare is the case that two vessels collide and there is not a reasonable argument that both vessels were at fault.

Assuming the Duck boat was disabled and adrift for about ten minutes prior to the collision (as reported), it seems likely that the barge/tugboat, operated by K-Sea Transportation Partners, violated several Inland Rules of Navigation intended to prevent collisions, including, among others:

• Rule 5 – failure to post/maintain a proper lookout (33 U.S.C. §2005)
• Rule 7 – failure to use all means available to avoid the risk of collision (33 U.S.C. §2007)
• Rule 8 – failure to take positive action to avoid collision, such as altering course and speed  (33 U.S.C. §2008)
• Rule 6 – failure to proceed at a safe speed (33 U.S.C. §2006)
• Rule 2 – failure to use good seamanship (33 U.S.C. §2002)
• Rule 18 – failure to Rule 1 – failure to comply with the above Rules of the Road (33 U.S.C. §2001)

The U.S. Coast Guard will be conducting an extensive investigation, which I assume will include a visibility analysis, to determine how the pilot/operator of the K-Sea Towing tugboat and barge (“The Resource”), failed to avoid colliding with the disabled Duck boat.

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In Delaware River & Bay Authority v. Kopacz, ___ F.3d. ____ (3d Cir. Sept. 25, 2009), the U.S. Court of Appeals for the Third Circuit made clear that commuter seaman – those who eat and sleep on land each night – are entitled to “maintenance”. Kopacz was a seaman who commuted to work each day. In 2004, he suffered a back injury and was later deemed “unfit” for duty. Thus, he qualified for and received Sick and Accident benefits and thereafter, Long Term Disability benefits. He also applied for and was awarded Social Security Disability benefits.

Meanwhile, Employer did not make separate maintenance payments to Kopacz contending that he would receive a “double recovery” . Employer argued that Kopacz’s wages already enabled him to procure food and housing on land and that Social Security Disability and long-term disability payments adequately covered Kopacz’s living expenses.

The Third Circuit rejected this argument relying, in part, on its holding in Barnes v. Andover Company, L.P., 900 F.2d 630 (3d Cir. 1999), and the U.S. Supreme Court’s holding in Vaughan v. Atkinson, 369 U.S. 527, 532 (1962), in which it affirmed that seamen are “wards” of admiralty. In so holding, the Court declined to make exceptions to the shipowner’s duty to provide maintenance and cure.

The Third Circuit also determined that Employer could not offset the amount of maintenance based on the seaman’s receipt of long-term or Social Security Disability. See, Shaw v. Ohio River Company, 526 F.2d 193 (3d Cir. 1975). In sum, the Third Circuit in Kopacz made “explicit what was implicit in Barnes: commuter seamen enjoy the same right to maintenance as their blue water counterparts.”

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According to a recent decision from the Benefits Review Board in R.C. v. Caleb Brett., L.L.C, BRBS No. 08-0741 (April 16, 2009), massage therapy was deemed compensable under Section 7 of the Longshore & Harbor Workers’ Compensation Act. Section 7(a) of the Act provides that an employer is liable for medical care and treatment related to the work injury. 33 U.S.C. §907(a). Meanwhile, 20 C.F.R. §702.404 states “The term physician includes . . . chiropractors. . . .. The term includes chiropractors only to the extent that their reimbursable services are limited to treatment consisting of manual manipulation of the spine to correct a subluxation shown by X-ray or clinical findings.”

In Caleb Brett, a chiropractor was the “treating doctor” under Section 702.404 who treated the claimant for subluxation of the spine. As the treating doctor, employer was liable to pay for the treatment provided or prescribed by the chiropractor. The chiropractor prescribed massage therapy and referred claimant to a massage therapist for that treatment. At trial, the chiropractor testified that massage therapy was vital to the recovery of the claimant’s subluxation. The Benefits Review Board reversed the trial judge and ruled that the applicable regulations dictated that the massage therapy was compensable treatment under Section 7, as well as reasonable and necessary for the treatment of a subluxation of claimant’s spine.

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On June 25, 2009, in the case of Atlantic Sounding Co. v. Townsend, 129 S.Ct. 2561 (2009), the U.S. Supreme Court said “Yes”. In so holding, the Court resolved a conflict between the Eleventh Circuit Court of Appeals (which held punitive damages were available) and the Second, Third, Fifth and Ninth Circuits which found that they were not.

In Atlantic Sounding, Edgar Townsend was employed as a seaman aboard Atlantic Sounding’s Motor Tug Thomas when he injured his arm after falling on the deck. Atlantic Sounding refused to provide maintenance and cure even though Townsend was injured while in the service of a vessel. Townsend filed suit under the Jones Act and general maritime law alleging negligence, unseaworthiness and arbitrary and willful failure to pay maintenance, among others.

In its reasoning, the Court first acknowledged that punitive damages have long been available at common law for willful, wanton or outrageous conduct, and were first extended to claims under federal maritime law in 1893). See Lake Shore & Michigan Southern R. Co. v. Prentice, 147 U. S. 101, 108, 13 S.Ct. 261, 37 L.Ed. 97 (1893). The Court observed that the maintenance and cure obligation dates back centuries as an aspect of general maritime law, and the failure of a seaman’s employer to provide adequate medical care was the basis for awarding punitive damages in cases decided in the 1800’s. In fact, the Court registered its agreement with such decisions and has found that in addition to wages, “maintenance” includes food and lodging at the ship’s expense, and “cure” refers to medical treatment. Lewis v. Lewis & Clark Marine, Inc., 531 U. S. 438, 441, 121 S.Ct. 993, 148 L.Ed.2d 931 (2001). The Court noted that an owner’s failure to provide proper medical care for seamen has provided lower courts the impetus to award damages that appear to contain at least some punitive element.

The Court then turned its attention to and rejected arguments by Atlantic Soundings that the decision in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990), which stated that damages for loss of society may not be recovered on a general maritime law wrongful death claim, was controlling. The Court distinguished Miles since that case did not address maintenance and cure actions in general, or the availability of punitive damages in such actions. Instead, the Court in Miles only considered whether the general maritime law should provide a cause of action for wrongful death based on unseaworthiness.

The Court also acknowledged that Congress has enacted no legislation precluding an award of punitive damages to a seaman whose employer willfully fails to pay maintenance and cure. What’s more, the Court has consistently found that the Jones Act preserves common-law causes of action such as maintenance and cure (The Arizona v. Anelich, 298 U. S. 110, 56 S.Ct. 707, 80 L.Ed. 1075 (1936)) and case law from the Supreme Court supports the view that punitive damages awards continue to remain available in maintenance and cure actions. See, Vaughan v. Atkinson, 369 U. S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962)

The Court concluded that because punitive damages have long been an accepted remedy under general maritime law, and because neither the holding in Miles, nor the Jones Act altered this understanding, punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.

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The Longshore and Harbor Workers’ Compensation Act (referred to as the Longshore Act or LHWCA) provides compensation and medical benefits to injured maritime workers who are not covered by the Jones Act (ie. seamen) or state workers’ compensation.

Congress enacted the Longshore Act in 1927 in an effort to protect workers engaged in maritime activity.  However, the LHWCA covered only those workers injured or killed on navigable waters, while workers injured on land were limited to state workers’ compensation remedies.  Given advances in technology which effectively moved the loading and unloading apparatus further “up the bank”, Congress amended the Longshore Act in 1972 and 1984 in order to expand coverage of the LHWCA.  Congress enlarged the definition of the employees covered to include not only longshoremen, but any harborworker, including ship builders and repairmen.  The amendments also extended the definition of “navigable waters” to include “any adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel.”  With this addition, Congress intended to create a uniform compensation plan for those longshore and maritime workers who would otherwise have been entitled to varying amounts of coverage under land-based, state compensation laws.

However, whether a worker is covered under the LHWCA can be a difficult question when he or she is injured in an “adjoining” area.  Some shoreside activities are located quite a distance away from the vessel, docks, or piers yet an injured worker still may be covered by the Longshore Act.  Some workers have been covered by the Longshore Act even though they were injured 1 mile from the river, dock or harbor.  In other instances, a worker may be covered by both the Longshore Act and the state workers’ compensation act, depending on the location of the injury and work being performed.  Because there are many important differences between state workers’ compensation acts and the Longshore Act which can affect the benefits you receive, it is important to know your rights.  Our maritime attorneys are experienced in prosecuting claims under the Longshore Act, and can help you differentiate between the varying laws and compensation schemes available to you to assure you receive fair compensation for your injuries.  Contact an experienced maritime attorney at our law firm today to discuss your rights.

Who Is Covered?
Whether you are covered by the Longshore Act does not depend on your job classification or job title.  You may be covered by the Longshore Act if you are a:

• Dock worker
• Longshoremen
• Maintenance worker
• Crane operator
• Laborer
• Mechanic
• Ship builders and repairmen, including welders
• Employee loading and unloading cargo
• Oil-production fixed-platform workers

Benefits
So what kind of benefits are provided for those who are injured and covered by the LHWCA?  There are several benefits and remedies available to compensate an injured maritime worker, depending on the type and severity of the injury.  These benefits can include:

• Weekly compensation at a rate of 2/3 of your average weekly wage while you are totally disabled
• Partial Disability benefits if you do no fully recover from your injury
• Medical treatment for injuries and diseases sustained from maritime employment
• Rehabilitation Services
• Specific Loss benefits including money for Hearing Loss
• Funeral expenses up to $3,000 and death benefits for dependent family members, if the maritime worker is killed in a work accident

Can I Qualify for Money Damages?
Injured workers may be entitled to money damages – apart from medical treatment and weekly disability benefits discussed above – if the worker is injured because of the negligence of another company, person or vessel.  Section 905(B) of the LHWCA was added by Congress in 1984 to allow maritime workers the right to file a lawsuit (aside from workers compensation) and recover damages from injuries received as a result of “vessel negligence”.  These types of claims arise when a worker covered by the LHWCA is injured while aboard a vessel because of some defect with that vessel.  Damages available to such workers include pain and suffering, past and future lost wages, and the cost of future medical treatment, among others.  It is therefore important to know your rights.  Our maritime attorneys are experienced in prosecuting these types of lawsuits and can tell you whether you have a viable third-party lawsuit against a vessel or entity.

Time is of the Essence

If you think you have a claim under the LHWCA, there are time limits on how soon after an accident you must notify your employer of your injury and file a claim.  First, you must notify your employer of the injury within 30 days, and then you only have 1 year to file a formal Claim for Compensation with the U.S. Department of Labor.  If you intend on pursuing a claim or potential settlement, do not delay in contacting an experienced maritime attorney at The Moschetta Law Firm, P.C beforehand to assure you receive proper and adequate benefits or read more about our Longshore & Harbor Workers’ Compensation Act practice.

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What is the Jones Act and How does it affect you?

The Jones Act, officially known as the Merchant Marine Act of 1920, was originally passed in order to provide protective legal rights for American Merchant Marines along with sailors and the ships’ crews. Its author, Senator Wesley Jones of Washington State declared that American sailors were being neglected when it came to medical and financial assistance. The actual act itself is rather multifaceted and attempting to thoroughly grasp its concepts can leave one more than slightly bamboozled. For this reason it is always advantageous to contact an experienced maritime attorney if there are any questions about The Jones Act.

During the late 19th century and early 20th century there was a great deal of concern about the health and well being of merchant marines. If injured at see there was little that could be done to compensate or lend assistance to the wounded seafarer. Recognizing the extreme danger of working at sea and the absence of adequate reparations for injuries The Jones Act established precise benefits for merchant marines and ship crews.

The specifics of The Jones Act can be broken down into two key sections. The first consists of laws that put restrictions on the amount of trade and shipping that can be executed on American owned or flagged ships within the boundaries of the United States. It also limited the amount of foreign materials that were allowed to be used in the building and on board application American ships. Finally, the act enforced that 75% of any ship’s crew had to consist of American citizens. With these new laws in place The United States focused on constructing a solid-built Merchant Marine that would be effective during both peace time as well as war time.

The second portion of The Jones Act which is extremely important extends itself to the furthest corners of the oceans and everywhere in between. This section states any Merchant Marine, sailor or ship member that is injured at sea is fully entitled to medical care and assistance as well as a recovery and restoration to health. Essentially, this stipulates that the employer must pay the member a stipend or compensation to cover medical costs until they have been cured. Additionally, members of the crew have the right to sue if they are hurt on the job due to the negligence of either the ship owner or another crew member or if they are injured due to their presence on a ship that is found not to be sea-worthy which also includes death benefits if a fatality results while on the job.

So how many people does The Jones Act encompass under its coverage? Qualifications for coverage require that an employee spends at least 30% of his or her time in the active service of a Merchant Marine vessel including all staff members.

Under the supervision and guidance of an experienced attorney benefits of The Jones Act can be very rewarding. This is why it is important that a maritime lawyer be consulted before any actions are taken when a situation involving this clause arises.

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