Maritime Lawyer Won Right To Jones Act Claim, Even After Winning Award Of LHWCA

Posted on March 1, 2012 by Ogletree Abbott

Maritime Lawyer Fought For Maritime Worker’s Rights, One Step At A Time

Though some lawyers may have knowledge of “workers compensation” cases, there are special reasons only to work with an experienced maritime lawyer. A knowledgeable maritime lawyer will have skills of not only workers compensation issues, but also general maritime law, and the Jones Act for seamen. In the following case, an injured employee received benefits under the longshore and harbor workers act (LHWCA), but that (his maritime lawyer knew) was not to the worker’s best advantage in the long run. Fortunately, his knowledgeable maritime lawyer went on to protect the worker’s rights to sue the negligent employer under the Jones Act and general maritime laws.

The issue the maritime lawyer had to win was whether the injured seaman’s receiving compensation benefits under the “LHWCA” would keep him from later recovering as a seaman under the Jones Act. A district court refused to accept the maritime lawyer’s proof that the employee had been working as a seaman, under the Jones Act. The maritime lawyer knew the employee needed immediate financial help, so the maritime lawyer sought the LHWCA benefits, which the maritime lawyer did win for the employee. Then, the maritime lawyer continued to appeal the denial of the Jones Act and maritime law coverage. The employer argued with the maritime lawyer, saying that the award of LHWCA had closed out the possibility of other protections. The trial court agreed with the employer, but the maritime lawyer appealed that decision…successfully.

The maritime lawyer agreed that the Jones Act and the LHWCA are usually going to be separate rules, for different types of workers. But that did not mean a maritime employee has to lose basic rights when a trial court makes a mistake about “seaman status,” for example. To win the seaman’s case, the maritime lawyer showed that just because an employee who received voluntary payments under the LHWCA without a formal award, didn’t mean he was always and absolutely stopped from later getting help under the Jones Act.

Maritime Lawyer: Congress Has LHWCA And Jones Act To Protect Workers

The maritime lawyer had the United States Supreme Court on the seaman’s side. The maritime lawyer pointed to a Supreme Court case, saying the LHWCA “clearly did not intend” to totally prevent pursuing a Jones Act claim after every type of LHWCA award. This was so, emphasized the maritime lawyer, since Congress made a rule requiring a credit for any LHWCA payments, which conflicted with an award under the Jones Act or damages for maritime negligence. Since the issues are complicated, having a maritime lawyer can clear up what is best for an injured maritime worker.

The maritime lawyer especially succeeded in emphasizing the “fairness” in blocking Jones Act rights with LHWCA in this case. In fact, the maritime lawyer succeeded in arguing the ruling as it stood would harm both the employer and the employee. The ruling would discourage an employer from claiming a defense to any LHWCA claim, which was not what Congress intended in passing the LHWCA.

Maritime Lawyer Successfully Compared LHWCA Award To “Seaman’s Cure”

The idea of sometimes allowing payment under the LHWCA and then the Jones Act, the maritime lawyer had shown, may amount to traditional maintenance and cure payments. Maintenance and cure (or the LHWCA payments in this case) was very different from any damage recovery the maritime lawyer might win for the seaman under the Jones Act. It was only because of a series of accidents in US legal history, detailed by the maritime lawyer, that paying medical expenses to an injured worker was legally consistent with damages as “maintenance,” but inconsistent with damages if called “compensation.” The Appeals Court agreed with the maritime lawyer, saying that in this case, an LHWCA claim would not stop a later Jones Act claim. The Appeals Court not only reversed the trial court, but also ordered a full hearing on the Jones Act and maritime law negligence claims, which led to the maritime lawyer’s winning a large award for the seaman.

Maritime lawyers are especially good at understanding the historical reasons for having special protection for seamen and harbor workers. Maritime lawyers can fight for the rights of a maritime worker, knowing the reasons Congress has passed apparently conflicting rules…such as the LHWCA or the Jones Act. For someone injured in a maritime job, talking with a knowledgeable maritime lawyer will have several benefits. Immediately, a seaman or maritime worker can get the advice he needs from an experienced maritime lawyer.

Posted in Jones Act, Longshore and Harbor Worker, Negligence, Uncategorized, Workers' Compensation | Tagged , | Comments Off

Evidence Of “Inattention” To Possible Holes In Deck Proved By Maritime Attorney

Posted on February 28, 2012 by Ogletree Abbott

Maritime Attorney Helps Uncover Important Records Of Accident Kept By Vessel Owner

According to his maritime attorney, Perry Drake had worked for B-1 Shipping and Terminus company for almost a dozen years. The maritime attorney showed Drake was regarded as a very good, safe worker. Drake was a crew member from a sister ship, helping to load the M/V Duchess, a refrigerator vessel also owned by B-1 Shipping, with a load of frozen beef bound for Poland. The Duchess had three cargo holds or decks, designated A, B, and C. Crews accessed the decks from four cargo hatches, numbered one through four, moving fore to aft. The maritime attorney built a detailed case showing what Drake was supposed to do. Once a crane deposited the pallets in a hold, the crew member used forklifts to move the pallets with beef boxes. According to the maritime attorney’s evidence, the floor of deck B was made of wooden deck boards, bolted to supporting steel I-beams.

Drake was on deck B when he crashed through the deck boards. Drake’s right foot and leg went through the boards, causing him to fall in such a way that he was “resting on [his] tailbone,” leaving his foot and leg dangling inside of hold C. Drake’s fellow crewmates, working on deck B, helped Drake out of the hole after it appeared he couldn’t help himself. The maritime attorney proved Drake had injuries to his wrist, back, neck, and knee. The maritime attorney even found notes from another crew member, who filled out two important accident reports documenting Drake’s fall.

B-1 Shipping, over the objection of the maritime attorney, moved for summary judgment, arguing that it didn’t break any duty to Drake. The district court gave way, saying the seaman’s maritime attorney didn’t have sufficient evidence to show that B-1 Shipping breached any duty to find the hole. The seaman’s maritime attorney quickly and (as it turned out), successfully appealed.

Maritime Attorney Can Show Liability If Owner “Should Have” Looked For Problems

The maritime attorney agreed there was no evidence that the hole in the deck, or the rotten wood at that spot, was actually known to the vessel owners. So the question was whether the vessel owner should have known of the defect, stressed the maritime attorney. The maritime attorney also succeeded in asking the question this way: “Should the vessel owner have warned the crew member of the defect?” To emphasize this point, the maritime attorney had the large hole described in detail…6 inches wide and 18 inches long. In short, the maritime attorney emphasized, noticeable.

The affidavit of Captain Andrews (an expert for the maritime attorney) described the state of repair and upkeep of the deck. The Captain told the maritime attorney about “evidence that the ship’s personnel failed to act reasonably concerning maintenance and upkeep of the vessel.” He attached photographs, used by the maritime attorney to show wooden patches in certain decks, unreasonable damage, cracks in hatch boards, worn and splintered boards. The maritime attorney also had evidence of extreme wear of edges of deck boards and unsafe surface coatings on certain decks. Captain Andrews told the maritime attorney “(t)he refrigerated compartments in the ship… were pre-frozen and, on that account, the deck boards might appear quite sound when they, in fact, were not.” The point made by the maritime attorney was that the decks should have been inspected before freezing set in. Maintenance records obtained by the maritime attorney showed this had not been done thoroughly enough.

Maritime Attorney Also Had Evidence Of Unsafe Practices Surrounding Accident

Lee Dana, an employee of the vessel owner, was in charge of the loading of the ship. He told the maritime attorney that with the number of the crew down to “a fourth the size that they used to have, I think with the size of the crew they had, they found it very difficult to keep up with what was going on. Regular maintenance was difficult, much less damage that was happening.” It was a part of Dana’s job to see that the decks were in working condition, and he probably, in fact, actually inspected the decks before loading started, observed the maritime attorney. Dana, under questioning from the maritime attorney, said he reported Drake’s accident to the ship’s supervisors, but “never received any report back,” about the accident. Another one of the crew, also called by the maritime attorney at the trial, testified that the hole Drake fell into was later just “covered up” with boxes of beef.

Looking at the great weight of the maritime attorney’s evidence had convinced the Appeals Court that the vessel might well have been negligent in the inspection of the deck, and in not finding the hole, emphasized the maritime attorney. The maritime attorney had clearly introduced enough evidence for a jury to decide the hole could (and probably should) have been found. The maritime attorney had also proven the need to have warned the crew of the risk.

This case had a vessel owner using a defense of a ‘non’ obvious hazard, pointed out the maritime attorney. One of the reasons to work only with an experienced maritime attorney is the way that a maritime attorney uses their skills in the special area of understanding maritime injuries. When an accident occurs on or near a marine work site, the injured worker should seek the advice of a knowledgeable maritime attorney.

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Importance Of Working With Maritime Attorney Emphasized By Winning Appeals Court Review

Posted on February 26, 2012 by Ogletree Abbott

Maritime Attorney Proved: Workers Compensation Payments Were Not “Final” Award To Injured Seaman

It’s important for a seaman who is dealing with (or in the following case had) differences between workers comp and other rights, such as the Jones Act or what’s called “general maritime law,” to get the advice of a maritime attorney. In the following case, a non-maritime attorney jeopardized the seaman’s entire case. Dennis Day was an employee of the Department of Marine Transportation in a large City. While assigned to work aboard an Island ferry, Day slipped and fell over stairs in the engine room. After the accident, without the help of an experienced maritime attorney, Day filed a claim under the State Workers’ Compensation law for injuries to his right leg and back. Day was represented by counsel (but not a qualified maritime attorney) at several hearings. Only later was it known his attorney at that time was not knowledgeable about federal maritime law. A maritime attorney later emphasized how the first attorney had not advised Day of his federal maritime rights, as would have an experienced maritime attorney.

Later represented by this knowledgeable maritime attorney, Day’s maritime attorney sued under maritime law, as well as for the seaman’s traditional remedies of maintenance and cure. The City moved for summary judgment on the ground that Day’s acceptance of workers’ compensation, while represented by the non-maritime attorney, was an “implied” waiver (a decision to bypass) of his federal maritime rights. The district court granted the City’s motion. Only by the seaman’s work with a knowledgeable maritime attorney was his mistake to be fixed.

Maritime Attorney Protected Seaman’s’ Rights To More Than Workers Comp Payments

The maritime attorney argued that Day had not received a “formal” award from the Board that would stop the Jones Act suit. The City answered by pointing out that Day received notice that his case had been closed, and that the almost $16,000 award was supposedly a payment “in full” for his disability. Not so, argued the maritime attorney. The maritime attorney detailed the limited nature of the comp award…especially comrade to a Jones Act suit. Fortunately, Day had discovered the benefit to his seaman’s case of having an experienced maritime attorney. The maritime attorney was to successfully challenge the City’s claims of a “full” award.

To win, the maritime attorney showed a fair measure of what exactly a “formal award” of a workers comp claim is. The importance of this fact, emphasized the maritime attorney, was because of the basic rights under the Jones Act or general maritime law claim as a matter of federal law. The maritime attorney went on to prove the City’s definition of a “full” award was “insufficient.” The maritime attorney successfully emphasized that a seaman “waives” his maritime claims only if the formal award “settled the claims entirely.” A formal award, noted the maritime attorney, which only gives the seaman nothing more than payments similar to maintenance and cure doesn’t “entirely” settle all of the seaman’s claims.

Maritime Attorney Proved Jones Act Rights Were Greater Than Worker Comp Payments

The maritime attorney detailed how in this case the comp board awarded compensation of precisely $16,400. This award covered only the time of Day’s unemployment (though the maritime attorney conceded it might have exceeded that period by two days). When the Board set the extent of Day’s disability, it concluded that he had a 12 ½ percent loss of use of his right leg. Loss of a leg entitles compensation for 288 weeks, proved the maritime attorney. Using these figures, noted the maritime attorney, the Board said Day’s partial disability entitled him to 36 weeks of compensation (12 ½% times 288). Since he had already been paid for 41 weeks, explained the maritime attorney, the City Board thought it could just award no further compensation. But the maritime attorney had shown the only compensation awarded covered Day’s unemployment. In other words, the maritime attorney won the point by saying this period was comparable to maintenance and cure and noting else. This meant, said the maritime attorney, that the Board’s award, even if formal, didn’t settle all of the seaman’s claims for other damages or negligence. The Appeals Court agreed with the maritime attorney, and vacated the trial court decision. This meant the maritime attorney had reclaimed Day’s rights.

Without the help of an experienced maritime attorney, many cases do not get their proper day in court. The differences between usual, land-based laws and the special rules of federal maritime law, the Jones Act, and other protections for seamen, are what define the special expertise of a maritime attorney. In addition to this expertise, it is also vital that as soon as possible after a seaman’s injury, the seaman will talk with a qualified, experienced maritime attorney.

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Maritime Attorney Proved: Employer Couldn’t Shift “Negligence” Onto Seaman

Posted on February 25, 2012 by Ogletree Abbott

Seaman Wins Award After Maritime Attorney Proved How Hatch Cover Was Dropped

Injuries can happen when there are not enough crew members, or (as in the following case, as a maritime attorney proved) when those crew members are not being properly trained or supervised. Bill Mears was injured during the placing of a hatch cover, along with three other co-workers, onboard the M/V Stacy. The Stacy’s crew had taken a number of hatch covers off an oil platform, to remove trip hazards. The hatch covers then had to be replaced on the platform, said the maritime attorney. Mears and three other co-workers were carrying one of the hatch covers when the accident happened. The hatch cover was a large, flat piece of metal…about the size of a door, and weighing 275 pounds. Mears and his three co-workers each had one corner, as shown at the trial by the maritime attorney. The hatch where the cover was to be placed was partly under some stairs, showed the maritime attorney. Mears was holding the corner that was under the stairs, and as he later told his maritime attorney, “I was hunched over in an awkward position.” One of the co-workers lost his grip, and then two others let go, so that the hatch cover fell vertically into the hatch. The result, demonstrated the maritime attorney, was Mears left holding on by himself, with one hand. Almost immediately, Mears began to experience pain in his back, and as his maritime attorney also proved, the injury got steadily worse.

Maritime Attorney Detailed Employer’s Lack Of Supervision In Dangerous Task

The maritime attorney showed three types of negligence that contributed to Mears’s injury. First, there was nobody coordinating the efforts of Mears and the other three co-workers. The foreman, who was in charge of the crew, was in the wheelhouse at the time of the accident, apparently either sleeping or drinking coffee, noted the maritime attorney. The maritime attorney then explained the lack of supervision on the vessel. If someone who was in a position to watch all four workmen had been present, and called out directions, then the accident almost surely would have been prevented, emphasized the maritime attorney. Second, the three co-workers who dropped the hatch cover didn’t use reasonable care, and the maritime attorney. Third, the vessel’s crane should have been used for moving the hatch cover (the maritime attorney proved) to altogether avoid the accident.

In fact, Mears had even asked about using the crane, but the foreman refused the suggestion, the maritime attorney emphasized. The maritime attorney showed the cranecould have been used safely from the side of the platform opposite the hatches—a safe position observed the maritime attorney. If the crane had been used, the maritime attorney concluded by proving the accident would almost certainly have been avoided.

The slightest negligence was enough to create liability under the Jones Act, noted the maritime attorney. Under this convincing legal standard, the Appeals Court backed the maritime attorney, and refused to say the trial court was wrong in finding Jones Act negligence, based on all the maritime attorney’s evidence of the employer’s failed decisions.

Maritime Attorney Stopped Employer From Putting Blame On Seaman

The vessel owner argued (and the maritime attorney successfully disagreed) that Mears was contributorily negligent (partially at fault) in causing his own injury. The focus of their argument was that Mears, as the “senior employee,” should have been supervising and coordinating the hatch replacement so that the accident could have been prevented. The maritime attorney showed, however, that when the regular foreman was not on the Stacy, Mears would take over as foreman and be paid at a higher rate. However, on the day of the accident, the foreman was on the Stacy, although in the wheelhouse sleeping or drinking coffee, proved the maritime attorney. Mears was functioning only, noted the maritime attorney, as a non-supervisory employee. Also, the maritime attorney proved that Mears, who was under the stairs, was not physically in a position to coordinate the work. The maritime attorney had especially, successfully, emphasized that Mears had requested of the foreman that the crane be used to move the hatch covers. The maritime attorney was not rebutted when he showed how the foreman had simply refused the request.

The maritime attorney concluded convincingly: “There was nothing more that Mears could do for his own safety.” A seaman’s duty to protect himself was slight, the Appeals judges said, in agreeing with the maritime attorney. The maritime attorney had established the seaman’s duty was for the work he was assigned, and “not to find the safest method.” With that, the maritime attorney had protected the seaman’s rights, and the full Jones Act and maritime awards.

A maritime attorney is especially good at asking difficult questions of fellow crew members. In this case, the injured seaman moved wisely, after he was hurt, to get the advice of a maritime attorney. The case, requiring detailed evidence about the vessel’s safety and training procedures, depended on the seaman’s having this knowledgeable maritime attorney.

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Maritime Attorney Used Personnel Records To Show “Rough Estimate” Of Seaman’s Duties

Posted on February 24, 2012 by Ogletree Abbott

Proving To Be A Seaman: Vessel “In Navigation” And “Substantial Duties” Were Shown By Maritime Attorney

One of the reasons maritime attorneys are more successful in winning cases for seamen is because the maritime attorney brings “real world” knowledge of how jobs are accomplished at sea. This is especially important when a maritime attorney needs to show that a worker may have many jobs, but is primarily a seaman. In the following case, a vessel owner actually tried to argue that Wade Rogers was not a “seaman,” so as to be able to recover under the Jones Act. The issues in this case for defining ‘seaman status’ were whether the maritime attorney had shown the seaman (1) had job duties that contributed to the vessel’s mission and (2) that Rogers had a “substantial” connection to a vessel in navigation.

To begin with, noted the maritime attorney, since proving seaman status first depended on being aboard a “vessel in navigation,” the maritime attorney clearly proved Rogers’s vessel (the Tiger) was just that, at the time of the injury. The maritime attorney, experienced in defining maritime uses, proved the Tiger was self-propelled, had its own engines, twin screws, steerage, rudders, raked bow, and a wheelhouse. It had running lights, mooring lines, lifeboat, and a cabin with a kitchen. The maritime attorney described how Tiger worked at many different locations, moving from one to the next under its own power, and on a daily basis “in navigable waters.” The maritime attorney had successfully argued that there was “no question” that the Tiger was a vessel.

Maritime Attorney Worked With Seaman To Prove Duties As Seaman At Time Of Injury

Rogers was permanently assigned to Tiger and had been for months, showed the maritime attorney, by the time of the accident. His duties included operating the crane, which was a very important piece of equipment on Tiger. Also, observed the maritime attorney, Rogerswas responsible for manning the wheelhouse and even navigated when the Tiger moved from location to location. He was responsible for maintaining the engines and generators, proved the maritime attorney. Obviously, Rogers’s duties contributed to the function of the vessel, and the accomplishment of its mission, emphasized the maritime attorney. The trial court agreed that it had been “well-satisfied as to Rogers’s status as a seaman” based on the evidence by the seaman’s maritime attorney.

Yet, despite this strong evidence from the maritime attorney, the vessel owner kept arguing that the maritime attorney “couldn’t” prove Rogers’s “seaman’s status” was ‘substantial.’ Rogers, agreed the maritime attorney, had testified to his maritime attorney in a deposition that he “did not recall” what percentage of his work time he spent onboard. Apparently, during part of the work day, Rogers would go aboard the platforms he was servicing. But at the trial itself, Rogers testified to his maritime attorney that “I spent about 80% of my work” (time) on the Tiger, and only about 15% on the platforms, stressed the maritime attorney. The vessel owner argued that Rogers’s deposition testimony could not be contradicted, or taken back, at the trial. Most of all, the vessel owner argued that without testimony as to what exact percentage of time spent on board,Rogers “could not possibly prove” his seaman status. Once the maritime attorney disproved these two arguments, the seaman’s case was won.

Maritime Attorney: It’s Not Crucial To Prove Exact “Per Cent” Of Seaman’s Duties

The maritime attorney successfully rejected the employer’s argument, based on two points. First, even if Rogers did not recall the percentage of his work time that he spent aboard the Tiger, the maritime attorney had argued successfully that this would not necessarily stop a court from finding Rogers was a seaman. Both his permanent assignment to the vessel and his duties in carrying out the function of the vessel were proved by Rogers’s testimony at trial, showed the maritime attorney. Plus, the maritime attorney introduced the actual contract, showing what the duties of each crew member were. In view of the permanent assignment and his duties aboard, the maritime attorney showed it was obvious that Rogers spent more than a “small fraction of his working time” aboard and that he was not (as the employer implied) “basically a land based” worker.

Second, Rogers’s deposition testimony was not what is called a “judicial admission,” which has special weight, and which he couldn’t just contradict at the trial. These technical rules are very important in maritime law, and explain why seamen rely on experienced maritime attorneys for their cases. The point being made by the maritime attorney in this case was convincing: if, as the maritime attorney accurately pointed out in comparison, “testimony on the witness stand” doesn’t stop further evidence on the subject of time spent on sea, then deposition testimony certainly wouldn’t. Finally, Rogers’s statement to his maritime attorney and to the vessel owner’s attorney that “I just do not recall” didn’t add up to an “express acknowledgment” of anything else. If the employer really wanted to conclusively find out if Rogers did, or did not, know the percentage of time he worked at sea, pointed out the maritime attorney, then the vessel owner’s attorney could (and should) have asked specifically. The maritime attorney won the seaman’s case and the employer was found fully liable under the Jones Act.

A maritime attorney will stand between an employer’s use of uncertainty and a seaman’s rights under maritime law and the Jones Act. In order to safeguard basic rights in maritime law and (in this case) special protections of the Jones Act, it is urgent to speak with a knowledgeable and experienced maritime attorney.

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Maritime Attorney Showed How Employers Had Failed In Duty To Warn Seamen Of Carcinogen

Posted on February 22, 2012 by Ogletree Abbott

Benzene Risks Were Documented As “Known,” Proved Maritime Attorney, “Decades Ago”

A maritime attorney often sees certain patterns of harm, risks, and dangers to seamen. Sometimes, these risks may affect a relatively large group, or just a single seaman. In the following case, many seamen who had worked in virtually identical careers aboard vessels for decades kept in touch with each other. As they began to develop common health problems, they also worked together to talk with a maritime attorney. This group of seamen eventually worked with their knowledgeable maritime attorney for help. The maritime attorney, in turn, uncovered their common exposure to the dangerous chemical, benzene.

The seamen were diagnosed (according to strong medical evidence from the maritime attorney) as having various blood and organ disorders. The maritime attorney brought a lawsuit, to prove the seamen developed their common diseases as a result of exposure to benzene and benzene-containing products. Several of the blood and immune system disorders, the maritime attorney was to show, had also changed into deadly and acute forms of leukemia, and, within three years of starting the suit, several of the seamen had died.

After the maritime attorney’s evidence, the trial court supported the maritime attorney’s showing of damages, and gave a judgment to the seamen. The court had accepted almost all of the maritime attorney’s evidence as conclusive facts, showing links between the amount of exposure and their health conditions. In its reasoning, the trial court concluded that the seamen had “substantial exposure” to benzene and benzene-containing products manufactured by a dozen different companies. The maritime attorney showed how this exposure included many facilities, owned and operated by a great number of international corporations. The maritime attorney also succeeded in winning the seamen’s case by showing that the corporations had a duty to warn the seamen about long-term health hazards of benzene. The companies all appealed the verdict against them, but the maritime attorney was to succeed in defending the seamen’s awards.

Maritime Attorney Proved Companies Were Wrong To Claim “No Duty” To Warn Seamen

Several companies argued there was absolutely no duty, and certainly no “higher duty” (as suggested by the seamen’s maritime attorney) to warn that exposure to the products could cause cancer. The companies didn’t try to dispute the maritime attorney’s proof that the companies never gave the seamen any warning of the dangers of benzene exposure. Yet, the companies were shown by the maritime attorney to have known that there was “danger inherent in the use of benzene and benzene-containing products.” Crucially, the next step was when the maritime attorney proved these dangers were not obvious to the ordinary user.

The maritime attorney pointed to known causal connections between leukemia and benzene as early as 1928. Also, Dr. A testified to the maritime attorney that in 1939 a series of articles from an Ivy League med school discussed this connection between benzene and leukemia. Besides, the maritime attorney relied on experts, Dr. B and Dr. C, agreed with Dr. A’s evidence about the known history of benzene risks.

Doctor Tells Maritime Attorney: Cost Of Awareness Began With “Twenty Five Cent” Magazine

The maritime attorney’s expert in industrial hygiene and safety testified that petroleum and petrochemical industries had knowledge in the mid-40’s, that benzene caused damage to the blood and blood-forming organs. The maritime attorney proved Coast Guard regulations had also identified benzene as toxic in the 1940’s. One company’s former vice president testified to the maritime attorney that there’d been information and publications on benzene risks, from the Coast Guard, during his many years with the company: An outright warning came from the Coast Guard, showed the maritime attorney, in 1979. A company executive even conceded to the maritime attorney that their company didn’t stop hauling pure benzene because of these USCG warnings over health concerns, emphasized the maritime attorney. Instead, the company stopped only because of their need to begin keeping health records on the seamen, noted the maritime attorney.

Finally, the maritime attorney noted the “comparative” costs of inaction, and how the health of the seamen was part of the price. The maritime attorney showed how in 1948 the American Petroleum Institute published a medical review, which said of benzene exposure: “[R]easonably well documented instances of the development of leukemia as a result of chronic benzene exposure have been cited.” When asked, the maritime attorney’s expert observed that the cost of buying this document (at its time of publication) was little enough…twenty-five cents. The Appeals Court endorsed the decision for the seamen and the award won by the maritime attorney was fully upheld.

No matter how long ago an injury began, a knowledgeable maritime attorney can help prove the case. While the passage of time can hide or even possibly give some legal cover, a maritime attorney has available new technologies to help prove the facts. The important step is to talk with an experienced maritime attorney as son as possible. This can be especially important, when former crewmates realize their symptoms are apparently too similar to be mere coincidence. In such cases, it is a matter of urgency to discuss the possibility of common injuries, only with an experienced maritime attorney.

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Maritime Attorney: Mariner Injured While “Reasonably” Protecting Vessel From Collision

Posted on February 18, 2012 by Ogletree Abbott

Maritime Attorney Used Extensive Knowledge Of Maritime Rules To Prove Case

The following case showed just how unique maritime safety rules can be, and the extent to which a maritime attorney has special skills in explaining what went wrong at sea. In this case, it’s fairly certain that having an experienced maritime attorney meant clearly explaining the unique rules of ship traffic, and duties to avoid collisions. Thomas Stevens, a yacht broker and expert fishing vessel operator, was ready for a weekend fishing trip from New Orleans, aboard the M/V Depth, a 29’ footer. A tropical storm had stalled the fishing trip, so the Depth was still docked at the Marina. Waiting out the storm, Stevens and a fishing companion noticed a large vessel approaching on a direct path, right at the Depth. That vessel, a 43’ foot M/V (Wild Wave), was being operated by William Breen, who was unable to control the boat due to a loss of power. As the Wild Wave approached the dock, the maritime attorney showed how Breen attempted to restart the vessel’s engines. After Breen sent out an alarm to notify the fishermen aboard the Depth of his intention, Stevens yelled to Breen not to turn on the Wild Wave’s engines. The maritime attorney showed that starting the engines at that time was dangerous. Meanwhile, to try and keep the Depth from being damaged in a collision, its crew members positioned rubber fenders. Stevens stayed on the port side of the Depth’s bow platform and, as he later told his maritime attorney, “just held fenders close to the boat with my hands and hoped their engines wouldn’t start.”

But Breen went on with his ill-advised attempts to restart the Wild Wave’s engines and, then, within mere feet of the Depth, finally restarted the engines. Shortly after, Stevens later told his maritime attorney, “a water surge was created by the Wild Wave’s engines coming on,” which made Stevens lose balance and fall onto the dock. In his own words to his maritime attorney, Stevens described it as being “knock jumped onto the dock.” Two days later, he sought treatment from an orthopaedic surgeon. Dr. Abel, according to evidence gathered by the maritime attorney, found out Stevens had fractured the calcaneus bone in his right heel.

Mr. and Mrs. Stevens worked with a maritime attorney, and the maritime attorney soon filed suit against Breen to prove negligence. A judge agreed with the maritime attorney’s evidence, and granted Stevens $185,000 in damages for pain and suffering, and $25,000 for loss of consortium to Mrs. Stevens. To prove the case, the maritime attorney’s expert witness was crucial, and he told the maritime attorney that “moving vessels don’t usually collide with stationary objects unless the vessel is mishandled in some way.” These observations, coupled with the rest of the maritime attorney’s expert knowledge of maritime safety rules, proved Breen breached his duty of reasonable care.

A Knowledgeable Maritime Attorney Will Present Facts Based On Maritime Rules

The maritime attorney pointed out maritime law, saying “every vessel shall use all available means appropriate to determine if [a] risk of collision exists.” The accident could have been avoided, noted the maritime attorney, had Breen not gone out to sea on the Wild Wave during a tropical storm. However, the maritime attorney also said that even if Breen acted reasonably in going out in a tropical storm, he should have used an alternate route to enter the marina. The maritime attorney quoted Inland Navigational Rule 8, “(I)f there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation” Finally, the maritime attorney read another Maritime law, which says “if necessary to avoid collision or allow more time to assess the situation, a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion”. In failing to use any of these options, the maritime attorney proved the Wild Wave would not have collided with the Depth, but for the actions of Breen.

The maritime attorney continued to use his knowledge of maritime rules, next to prove Stevens did act reasonably in putting himself on the port bow. The maritime attorney also used the testimony of Breen’s own evidence…Breen’s own eyewitness all had to agree with the maritime attorney, when asked if the Wild Wave drifted at an angle right into the direct path of the Depth’s port bow. Breen’s own expert witness was also forced to concede to the maritime attorney that Stevens’s spot in the bow was the “best position” to defend the Depth from the Wild Wave.

Maritime Attorney: Negligent Vessel Almost Rammed Same Vessel, Next Day

Because he should have reasonably foreseen that starting the Wild Wave’s engines could harm Stevens, Breen’s acts were tied to causing the injuries, the maritime attorney had proven. When entering an area where other vessels are docked, the maritime attorney not that a moving vessel must “consider the reasonable effects from its speed and motion through the water.” The owner of the Wild Wave (Breen’s younger brother) was also negligent in trusting the older Breen brother with the vessel, in light of Breen’s inexperience with operating the Wild Wave, showed the maritime attorney. This inexperience was showcased again, on the day following the accident, when the maritime attorney proved Breen carelessly crossed into the path of the Depth again, creating a second potential collision.

The maritime attorney proved the $185,000 award was justified with Dr. Abel’s finding that Stevens had a 12% impairment to his right leg and foot. The maritime attorney further defended the award by stressing that Stevens had become partially disabled, possessing a permanent limp, and losing his ability to run and stand for extended periods.

The rules for safety on the water are, a knowledgeable maritime attorney knows, much less understood than usual rules of “the road.” Having a qualified and experienced maritime attorney made the difference, both in the trial and appeal of this case. Because the injuries also took some time to appear, the maritime attorney in the case was very careful to relate the exact details of the accident to those injuries. For the injured mariner, he and his wife were wise to have quickly prepared their case by meeting only with a qualified maritime attorney.

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Maritime Attorney Proved “Seaman’s” Right To Jury Decision On Getting Amputation Award

Posted on February 17, 2012 by Ogletree Abbott

Maritime Attorney Showed How Even A Dam Reservoir May Be “Navigable” Waterway

A maritime attorney in the following case proved how a small, isolated, and even restricted flood control area was covered by both the Jones Act and US maritime laws, for helping injured seamen. Rob Gomez was employed by a vessel owner as a construction worker in the project to build a bridge over the Cruz Channel in Carson, Texas. The Cruz Channel was described by the maritime attorney as “a flood control channel operated by the County Flood Control District.” Gomez was trained as a pile driver and was a member of the National Association of Pile Drivers. Later, Gomez’s maritime attorney noted Gomez “had never belonged to a maritime organization or seaman’s union, and never had been licensed by the Coast Guard.” Yet, the maritime attorney was also going to show that Gomez was a seaman when he was injured. Gomez worked on the vessel owner’s project for three months. Most of his time was spent on a floating platform called a Flexi float barge. It was towed from a barge yard in the City Harbor to the job site, about three miles above the City Harbor, said the maritime attorney.

During much, but not all, proved the maritime attorney, of construction, the barge was tied to pilings or anchored to the channel with spuds. The main task of the barge was explained by the maritime attorney as being a “template” to guide pile driving operations. This template work required the barge to be moved around the work site, two to three times per week; and this was explained in detail by the maritime attorney. A crane was used to help separate the sections to maneuver them around the bridge piles, showed the maritime attorney. Gomez was hurt when, as the barge was being separated into sections, a heavy load where Gomez was standing suddenly shifted. The maritime attorney described how the section flipped over, throwing Gomez into the water, where a finger was crushed. At an ER, the mangled finger had to be amputated, according to records obtained by the maritime attorney.

The maritime attorney sued for employer negligence, and (alternatively) for Gomez as a seaman under the Jones Act or as a harbor worker under the LHWCA. The maritime attorney also sued for Gomez to receive “maintenance and cure,” and for vessel unseaworthiness under general maritime law. The vessel owner answered the maritime attorney, asking for summary judgment on the grounds that Gomez was (a) not a seaman, (b) the barge was not a vessel or in navigation, and (c) that the Cruz Channel was not a navigable waterway. The trial court granted summary judgment, over the maritime attorney’s objections, and the maritime attorney quickly appealed. The maritime attorney was to successfully prove a jury should have had the chance to decide Gomez was a seaman.

Maritime Attorney Proved, Step-By-Step, Role Of Pile Driver As A “Seaman”

The vessel owner argued that Gomez was only a land-based worker. The Jones Act, observed the maritime attorney, actually doesn’t ever actually define “seaman,” and the word has become a “maritime term of art.”  Defining a seaman’s job is one of the important reasons a specialist in this field of law was needed…meaning a maritime attorney. Because the work or “mission” of the barge was to be a platform for pile driving, Gomez was engaged to aid crew members, the maritime attorney quickly established. As a seaman, Gomez, the maritime attorney was proving, had a “substantial” connection to a vessel.

Next, the vessel owner argued the Cruz Channel was not a navigable waterway and the barge was not a vessel in navigation. But the real test, emphasized the maritime attorney, was whether the vessel was “used or able to be used” for commerce. The maritime attorney pointed out that another court had discussed a dam reservoir as being “navigable,” which was a bigger barrier to navigation than getting a flood control area work permit. The maritime attorney showed how even “The damming of a previously navigable waterway by a state didn’t end control over a potentially navigable area of commerce.” Flood Control District rules, the maritime attorney emphasized, are more likely to be removed than most dams. The Appeals Court agreed with this argument by the maritime attorney.

Worker Described Various Uses Of Flood Control Area To Maritime Attorney

The vessel owner finally argued that commercial traffic couldn’t physically travel the three miles up the channel to the accident site. But the barge that capsized, causing the injuries, had physically traveled the three miles, the maritime attorney showed. It was undisputed that the maritime attorney had also proved how another tugboat, with a fuel barge, had been working on the channel near the same jobsite. The maritime attorney even used the vessel owner’s own evidence to show their own barge was in transit, and on a navigable waterway. These facts, made clear from the maritime attorney’s evidence, were enough, the Appeals Court agreed, to have let a jury hear the case. The dismissal was reversed, and the maritime attorney brought a successful conclusion to the pile driver’s case…as a seaman.

Injuries on almost any waterway may involve special rights, best understood by a maritime attorney. As this case showed, a person who otherwise would have lost these valuable seaman’s rights, was wisely advised to quickly get help from an experienced and specially trained maritime attorney.

Posted in Jones Act, Longshore and Harbor Worker, Maritime Injury, Negligence, Uncategorized, Unseaworthiness | Tagged , | Comments Off

Seaman Relied On Maritime Attorney To Increase Spinal Injury Award From $150,000 To $450,000

Posted on February 16, 2012 by Ogletree Abbott

Maritime Attorney: Injury On Seaman’s Own Driveway Had Roots In Onboard Injury

An experienced maritime attorney will help explain that an at-work accident can show its full results, years later. In the following case, a maritime attorney showed the link between an injury aboard a vessel, and the slow but steady decline in a seaman’s health. Jim Thurston worked for A-Sea Contractors. (“A-Sea”) aboard a self-propelled barge, M/V Oscar. The Oscar was owned by Oil, Inc. A-Sea supplied the entire crew of the Oscar, which consisted of a foreman, Thurston (later represented by a specialist in his injury, a maritime attorney) the crane operator, two welders, two welders helpers, and two riggers. The maritime attorney described how Oscar was used in coastal waters on the Gulf, for work on oil and gas platforms. Thurston suffered his severe back injury when he was placing a hatch cover on one of the platforms on April 20, 2004. That injury became more painful and symptomatic (recurring and common) when Thurston was just routinely tightening a bolt (at work, emphasized the maritime attorney) on May 9, 2004. Thurston stopped working for A-Sea that day.

Thurston had extensive medical treatment, including spinal surgery showed the maritime attorney, in October, 2004. His doctor, according to what he told the maritime attorney, released him to work in January, 2005. At that time, he wanted to return to work with A-Sea, but was told that “there’s no work for you,” so worked with a deep sea well surveyor in February, 2005. He left that job in November, 2005. He looked for other jobs, described by the maritime attorney, but, in November of 2005, while just changing his car tire, he again began to experience serious back pain, established his maritime attorney.

Thurston asked for maintenance and cure benefits after the tire changing incident, but that request was refused, the maritime attorney showed. Then the maritime attorney filed suit for Thurston under the Jones Act for negligence and general maritime law for unseaworthiness. The trial court supported the maritime attorney’s arguments for the seaman, and awarded judgment $150,000 in general damages. All the parties (even the seaman’s maritime attorney) appealed, and challenged nearly every part of the trial court’s decision. The seaman’s maritime attorney, though sure the $150,000 was correct, was just as certain it was only a portion of what the seaman’s case had proven.

Maritime Attorney Showed Later Injuries Flowed From First Injury On Vessel

The maritime attorney did say that Thurston had suffered some relatively minor back injuries before the April 20, 2004 accident. But, the maritime attorney really showed how Thurston began to suffer severe back pain and disabling symptoms on May 9, 2004 while tightening that bolt. He had surgery in October, 2004 and was released by his doctor at the end of January, 2005. The maritime attorney showed Thurston was able to work until November, 2005 but, in that’s when car tire incident happened and he again began to suffer severe back pain and disabling symptoms, proved the maritime attorney. He had, the maritime attorney stressed, “been unable to work since that date.” Thurston was treated by various physicians, the records from the maritime attorney detailed, beginning in early December, 2005, which eventually led to a second back surgery in 2009. All these records were used to pinpoint the causes of his injuries by the experienced maritime attorney.

Maritime Attorney Tripled Seaman’s Damages Award From $150,000 to $450,000 On Appeal

Under the Jones Act, the legal test for showing what cause triggered an injury was very different (or should have been, noted the maritime attorney) from what the trial court had used as a test. The maritime attorney’s burden of proof of cause should have been less than in ordinary (on-shore, non-Jones Act) personal injury cases. The maritime attorney had shown that the seaman “is entitled to recovery under the Jones Act if he showed evidence that [vessel owner] negligence played any part, however small, in the cause of the condition.” The maritime attorney emphasized on appeal how the trial court didn’t mention the Jones Act’s “featherweight” use of cause. Dr. H, who treated Thurston for an extended period of time, testified to the maritime attorney that the first surgery placed “additional stress and strain on other parts of the spine.” Dr. G, a neurologist, “directly related” later pain and symptoms to the seaman’s first surgery. He also told the maritime attorney that the “weakened condition” of Thurston’s spine predisposed him to injury from simple daily activities, such as tire changing, noted the maritime attorney.

Thurston testified strongly and convincingly to his maritime attorney that “the pain of recovery from my second surgery was much, much greater than the pain from my first surgery.” He also testified to his maritime attorney about not only his physical but mental and emotional suffering. Finally, the maritime attorney emphasized the trial court’s mistake…where it awarded $150,000 general damages for only a nine month period, while in fact there were almost fifty months of damages. The Appeals Court accepted the maritime attorney’s evidence that the general damages should’ve been for a longer period and at least double the earlier period ($150,000). This meant the maritime attorney successfully won the argument for an additional $300,000 in general damages for the seaman. The $150,000 general damages judgment in favor of Thurston was increased to $450,000

Not every case involves a long period of recovery, a maritime attorney knows. But it’s also true that a maritime attorney will work to be sure the seaman receives every right to long term medical payments from his employer, as in this case. Once the seaman is injured, he has reason to talk with a maritime attorney. In the case here, once the seaman had his maintenance and cure request rejected, though the triggering injury had been more than a year before, he wisely and immediately went to a knowledgeable maritime attorney.

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Employer Could Not Dispute Maritime Attorney Evidence Of “Lasting, Permanent Pain”

Posted on February 3, 2012 by Ogletree Abbott

Maritime Attorney Protected Right To Maintenance After Jury Award For Future Cure

A maritime attorney will help focus on all aspects of a seaman’s injury and its effects, long-term and short. In the following case, a maritime attorney fought for (and won) increased jury awards for an injured seaman’s future lost income. Though the judge agreed with the maritime attorney, the seaman’s maritime attorney appealed, proving that the judge’s increases in the awards weren’t enough, given the extent of the seaman’s injuries.

Despite winning the case, Bill Quint’s maritime attorney made two arguments in the appeal: first, the jury was wrong by not awarding “maintenance.” Second, it was wrong that the judge failed to give what the maritime attorney showed as “adequate future damages for the seaman’s injuries.” The employer also tried to appeal on some issues, too. But the maritime attorney quickly disproved the employer’s claims, so the only issues really left were the argument by the maritime attorney. Having an experienced maritime attorney often gives this kind of advantage to an injured seaman.

Maritime Attorney Proved Tie Between Getting Award of “Cure” And Award For “Maintenance”

The maritime attorney had explained why Quint continued to work on a full-time basis, after his injuries, until his position was ended by the employer. The jury agreed the maritime attorney had shown that Quint worked in spite of “severe pain,” and despite a medical condition that hadn’t reached maximum cure. This allowed the maritime attorney to explain why Quint (though working) was entitled to cure. After six months of this difficult work history, Quint became fully unemployed. The jury awarded cure for future medical treatment; which meant the jury also agreed that the maritime attorney had proved that Quint had not reached maximum medical cure, though he’d been working. For some reason, the maritime attorney noted, the jury had failed to give any award for future maintenance.

Giving an award for cure in this case, emphasized the maritime attorney, was “inconsistent” with not giving an award for maintenance. Though the maritime attorney agreed that maintenance and cure didn’t always get paid together, finding a need for future cure certainly meant a need for future maintenance, too. That Quint had become unemployed, in part because of his severe injuries, also should have led the jury to award future maintenance, urged the maritime attorney. These arguments meant the maritime attorney had proven to the Appeals Court that the jury’s denial of maintenance was “clearly wrong.”

The maritime attorney had protected the seaman’s right to maintenance until he reached maximum cure. The maritime attorney had also asked the trial judge to increase the jury award for future general damages. The trial court judge agreed with the maritime attorney, and increased Quint’s award for future general damages by $20,000. The maritime attorney thought this award was too low, and also successfully appealed that, describing it as “abusively low.” To prove it, the maritime attorney detailed the accident, and its costly, painful, and lasting effects on the seaman.

Extent Of Injuries From Fall Justified Maritime Attorney Winning Larger Future Damages Award

Following the fall, Quint underwent knee surgery. He testified to the maritime attorney that after his return to work, “I was not, ever, at any time, completely or totally pain free.” Additionally, he told the maritime attorney how his neck pain had steadily worsened, and his routine activities were limited…telling the maritime attorney that “my pain had become constant, and then I began to have these horrible, awful headaches.”

Dr. Dillon, an orthopedic surgeon, diagnosed spondylosis at the C-5/C-6 levels. He told the maritime attorney that a preexisting arthritic condition aggravated a bundle of associated nerves. Dr. Dillon also believed that these conditions were to be a “permanent thing…something he [Quint] would have to learn to tolerate the rest of his life.” That doctor also testified to the maritime attorney that Quint had a fifteen (15%) percent physical disability of the total body.

Dr. Chester, an orthopedic surgeon, diagnosed the plaintiff’s condition as aggravation of spondylosis. The maritime attorney had shown there was no definite medical support for the future elimination of pain. Dr. Russell even told the maritime attorney that the pain might be worsened post-operatively. Given continued lifetime pain, the Appeals Court agreed with the maritime attorney that the court abused its discretion in its “minimal” award for future pain and suffering. The maritime attorney asked for a review of similar cases, and the Appeals Court agreed the review was needed, to be fair to the seaman in this case. As a result, the maritime attorney eventually proved that the correct award should have ranged from at least $85,000, and up to $300,000. The maritime attorney had won every point on appeal, showing the seaman’s original award had been too low.

A maritime attorney, with special knowledge of skills and salaries in a maritime career, will be able to knowingly fight for an accurate amount of awards. Because a maritime attorney is aware of the different types of awards, going to an experienced maritime attorney can lead to more fair, more accurate, and more consistent awards. For any injured seaman who has tried to keep working, after an injury, this case emphasized how important it is to talk with a maritime attorney.

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