The Admiralty Law Blog

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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The U.S. Depart of Labor, Office of Workers Compensation Programs (OWCP) has several divisions, one of which is the Division of Longshore & Harbor Workers’ Compensation Programs (DLHWCP). Each division has a District Director, formerly known as deputy commissioners, and Claims Examiners who supervise the administration of Longshore claims. District Directors and Claims Examiners preside over Informal Conferences when the parties are at an impasse on an issue or issues. Following an Informal Conference, the District Director’s office issues a recommendations to the parties in an effort to reach informal resolution of the disputes. Disputes arise frequently as to the compensability of medical treatment, whether a longshore worker is entitled to ongoing disability benefits or even whether the case is covered by the Longshore & Harbor Workers’ Compensation Act.  33 U.S.C. §§901, et seq.

The goal of the OWCP and the respective divisions is to minimize the impact of employment injuries and deaths on employees and their families by ensuring that workers’ compensation benefits provided under the Longshore and Harbor Workers’ Compensation Act and it extensions (including the Defense Base Act) are paid promptly and properly, and providing information, technical and compliance assistance, support, and informal dispute resolution services to workers, employers, and insurers.

The Division of Longshore & Harbor Workers’ Compensation Programs District Office contact information is:

Region 1 – Boston
Jurisdiction: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont
District Director: David B. Groeneveld
Regional Director: Robert Sullivan
Contact Information:
Longshore District Office #1, Boston
U.S. Department of Labor
ESA/OWCP/DLHWC
JFK Federal Building, Room E-260
Boston, MA 02203
(617) 624-6750 phone
(617 624-6603 fax
*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
Region 2 – New York
Jurisdiction: New Jersey, New York, Puerto Rico , Virgin Islands
District Director: Richard V. Robilotti
Regional Director: Robert Sullivan
Contact Information:
Longshore District Office #2, New York
U.S. Department of Labor
ESA/OWCP/DLHWC
201 Varick Street, Room 740
Post Office Box 249
New York, NY 10014-0249
(646) 264-3010 phone
(646) 264-3002 fax
*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
Region 3 – Philadelphia
Baltimore Longshore District Office
Jurisdiction: Delaware, District of Columbia, Maryland, Pennsylvania, West Virginia
District Director: Emma Riley
Regional Director: R. David Lotz
Contact Information:
Longshore District Office 4 Baltimore
U.S. Department of Labor
ESA/OWCP/DLHWC
31 Hopkins Place
Room 410-B Federal Building
Baltimore, MD 21201
(410) 962-3677 phone
(410) 962-2796 fax

Norfolk Longshore District Office
Jurisdiction: Virginia
District Director: Theresa Magyar
Contact Information:
Longshore District Office 5, Norfolk
U.S. Department of Labor
ESA/OWCP/DLHWC
Federal Building, Room 212
200 Granby Mall
Norfolk, VA 23510
(757) 441-3071 phone
*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
Region 4 – Atlanta
Jurisdiction: Florida, Georgia, Kentucky, North Carolina, South Carolina, Tennessee
District Director: Charles Lee
Regional Director: Richard Brettell
Contact Information:
Longshore District Office 6, Jacksonville
U.S. Department of Labor
ESA/OWCP/DLHWC
Charles E. Bennett Federal Building
400 West Bay Street, Room 63A, Box 28
Jacksonville, FL 32202
(904) 357-4788 phone
(904) 357-4787 phone
*  *  *  *  *  *  *  *  *  *  *  *  *  * *  *  *  *
Region 6 – Dallas
Houston Longshore District Office
Jurisdiction: Texas, Oklahoma, New Mexico, Illinois, Indiana, Iowa, Michigan, Minnesota, Ohio, Wisconsin, Missouri, Nebraska, Kansas
District Director: Brad Soshea
Regional Director: E. Martin Walker
Contact Information:
Longshore District Office 8, Houston
U.S. Department of Labor
ESA/OWCP/DLHWC
Mickey Leland Federal Building
1919 Smith Street, Suite 870
Houston, TX 77002
(713) 209-3235 phone
(713) 209-3257 fax

New Orleans Longshore District Office
Jurisdiction: Louisiana, Arkansas, Mississippi
District Director: David A. Duhon
Contact Information:
Longshore District Office 7, New Orleans
U.S. Department of Labor
ESA/OWCP/DLHWC
600 S. Maestri Place, Suite 617
New Orleans, LA 70130
U.S. Mail to:
P.O. Box 30728
New Orleans, LA 70190-0728.
(504) 589-2671 phone
(504) 589-3969 fax
*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
Region 9 – San Francisco
San Francisco Longshore District Office
Jurisdiction: California (Northern Counties), Arizona, Nevada
District Director: R. Todd Bruininks
Regional Director: Sharon Tyler
Contact Information:
Longshore District Office 13, San Francisco
U.S. Department of Labor
ESA/OWCP/DLHWC
90 7th Street, Suite 15100
San Francisco, CA 94103-6716
(415) 625-7669 phone
(415) 625-7470 fax

Honolulu Longshore District Office
Jurisdiction: Hawaii
District Director: R. Todd Bruininks
Contact Information:
Longshore District Office 15, Honolulu
U.S. Department of Labor
ESA/OWCP/DLHWC
300 Ala Moana Blvd, Room 5-135
Post Office Box 50209
Honolulu, HI 96850
(808) 541-1983 phone

Long Beach Longshore District Office
Jurisdiction: California (Southern Counties)
District Director: Eric Richardson
Contact Information:
Longshore District Office 18, Long Beach
U.S. Department of Labor
ESA/OWCP/DLHWC
401 East Ocean Blvd, Suite 720
Long Beach, CA 90802
(562)980-3577 phone
(562)980-3587 fax
*  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
Region 10 – Seattle
Jurisdiction: Washington, Colorado, Idaho, Montana, North Dakota, South Dakota, Utah, Wyoming
District Director: Karen Staats
Regional Director: Sharon Tyler
Contact Information:
Longshore District Office 14, Seattle
U.S. Department of Labor
ESA/OWCP/DLHWC
1111 Third Avenue, Suite 620
Seattle, WA 98101-3212
(206) 398-8255 phone
(206)398-8211 fax
* *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *  *
District 40 – Washington DC
Jurisdiction: Washington, DC
Director: Michael Green
Contact Information:
Longshore District Office #40, Washington
DC Department of Employment Services
64 New York Ave NE – 2nd Floor
Washington, DC 20002
(202) 671-1070 phone
(202) 671-1929 fax

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Maritime and admiralty law protects maritime workers and pleasure boat passengers.

Maritime accidents can come in a variety of forms but basically fall into two categories: recreational boating accidents and commercial boating accidents. If you are a maritime worker, harbor worker, longshoreman or passenger on a cruise ship, pleasure boat or other vessel it is important that you understand how the law affects you in the event of a boating accident or injury.

Boat Accidents

Accidents on rivers and the high seas can be extremely dangerous. Vessels on the water can collide with bridges, other vessels, reefs and large animals. These dangers can result in the vessel sinking or capsizing or result in injury to the crew and passengers.

There are also many other hazards such as people falling overboard, fires and severe weather. While nothing can be more exciting than sailing the waters, there are significant risks of boating accidents.

Cruise ship accidents

In addition to all the dangers of a traditional boating accident, cruise ships offer additional conditions that can lead to accidents. Cruise ships, with the large variety of onboard activities and facilities has a higher risk for personal injury to crew and passengers. Accidents on cruise ships can create a variety of legal challenges as many accidents involve international law and cases are resolved at city of port.

Towboat accidents

Towboats and tugboats are responsible for guiding and maneuvering large vessels or ships through harbors. These vessels are usually much larger and heavier than the tugboat and create hazardous conditions for the crew.

Barge accidents

Barges are slow to maneuver due to their size and weight. This can result in a dangerous situation when another vessel or object is in their path. When this happens it is often not possible for the crew to prevent a barge accident.

Offshore Oil Rig Accidents

Offshore oil riggers are susceptible to a wide variety of dangers. Crews work tirelessly and must be alert at all times. Oil rig injuries often involve explosions, heavy equipment failure and falls on the oil decks.

Tanker accidents

Tanker accidents are usually the result of human error or explosions. When a tanker is damages at sea it can result in serious injury or death along with spills that can cause serious environmental issues.

Boating accident lawyers

If you are involved in a boating accident on a river or in the high seas, it is important to understand how maritime law affects you in these situations. An experienced maritime and admiralty lawyer can help you navigate the ins and outs of maritime law.

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Beaver County January 9, 2005-

The towboat, Elizabeth M lost power and crashed over the Montgomery Lock & Dam in Beaver County, Pennsylvania on the Ohio River killing four crewmen on board.  According to Coast Guard reports, the accidents were due to misconduct and negligence on the part of the Master of the Elizabeth M, as well as negligence on part of the pilot of the Richard C an assistant vessel.

Other Articles

http://kdka.com/local/towboat.report.accident.2.563515.html

http://www.pittsburghlive.com/x/pittsburghtrib/s_297356.html

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