Risk Management Is Focus Of Maritime Law Seminar
Barge breakaways, hiring practices and maintenance and cure payments under maritime law were among the topics presented in detail at a September 27 maritime law seminar held in St. Louis.
The event, held at the downtown Ballpark Hilton next to Busch Stadium, was presented by the maritime law section of the Bar Association of Metropolitan St. Louis.
Maintenance And Cure
Bob Nienhuis of Goldstein & Price L.C. gave the first presentation on “non-garden-variety” maintenance and cure claims.
Maintenance and cure (M&C) refers to payments to mariners when they are injured in the performance of their duties. The payments, long established under maritime law, are made without regard to fault.
“The “maintenance” portion is supposed to replace lost wages while the “cure” portion is supposed to address the illness or injury. The maintenance part of the payment is calculated according to the mariner’s wage level and cost of living where he or she lives; this determination can involve research and negotiation.
The “cure” is paid until either the mariner can return to work, or the patient reaches “maximum medical improvement” (MMI) and no further benefit can be expected from treatment. Both payments have a calculable relationship to the loss of wages, and to the injury.
Certain unusual circumstances can expose employers to major risk in M&C payments. One is failure to provide “prompt and proper” medical attention. Nienhuis recounted the story (in Billiot v. Two C’s Marine) of a trip pilot on a towboat belonging to a small company who began experiencing symptoms. Instead of having him driven him to the nearest hospital, the company’s owner personally drove him—at the man’s own insistence—for 6-1/2 hours to his home in Texas. Unfortunately, he was experiencing stroke symptoms, and his condition wound up much worse than if he had gotten prompter care. It didn’t matter that the patient himself had insisted on the longer trip; the company had a duty to make the decision and provide the nearest care, the judge ruled. The man ended up being awarded a $2 million medical care plan and a $5 million life care plan.
A 1939 case, Calmar S.S. Corp. v. Taylor, established that the seaman’s injury or illness need not have been caused by anything related to his work; he need only have been incapacitated while “subject to the call of duty” to the vessel, including while ashore. If a condition is permanent and incurable, the Supreme Court ruled in a 1975 case that the M&C payments are due until a competent medical authority has declared that—even if that happens long after the condition actually was permanent and incurable.
Nienhuis concluded by highlighting a particular passage in a recent Supreme Court decision. This year, in one of the most significant maritime law cases it has decided in years, the court concluded in Dutra Group. v. Batterton that “the weight of authority [in maritime law]” indicated that punitive damages for unseaworthiness are unavailable.
In rejecting the plaintiff’s argument that maritime law’s traditional “special solicitude” for seamen justified punitive damages, the justices wrote, “…that doctrine has its root in the paternalistic approach taken toward mariners by 19th century courts. The doctrine has never been a commandment that maritime law must favor seamen whenever possible.” Mariners no longer face the isolation and harsh treatment they endured during the age of sail. “In light of these changes and of the role now played by the judiciary and the political branches in protecting sailors, the special solicitude to sailors has only a small role to play in contemporary maritime law.”
Hiring As Risk Management
St. Louis attorney Ron Fox, a well-known expert and frequent presenter at maritime law events, spoke on “Hiring as Risk Management.” The risk to companies breaks down into two types: risk under general employment law, and under the Jones Act.
Employment law, he said, is fraught with opportunities for both employer and employee to sue. Risk arises from the fact that there are few absolute rules in employment law, and that each case is highly fact-dependent. Companies need experienced attorneys who know employment law thoroughly.
Fox began with some entertaining stories of former hiring practices. One towing company hired a deckhand who put down as a work reference a well-known plaintiff’s attorney; sure enough, the man claimed injury and sued the company, with the attorney as his lawyer. Another barge company hired an ex-con just released from prison after serving a 12-year sentence for arson and attempted murder.
Happily, said Fox, increased attention to hiring by towing companies has accompanied the marked improvement in safety awareness over the past few decades.
Fox noted that the hiring process happens in two parts: before and after an offer of employment is made. A large part of his talk was taken up with medical conditions like back injuries. These are things about which employers are understandably curious, yet any inquiries about medical issues can be made only after an offer is made, he said.
A medical exam made after an offer may reveal certain propensities to injury or illness that may be unknown to the applicant. Fox urged that the candidate be told about these and reminded attendees that an offer cannot be revoked on such a basis. The candidate must sign a HIPA release for the employer to request medical records.
Although application forms often ask for age or proxies of age, such as graduation dates, Fox questioned whether that is generally necessary. Just ask whether an applicant is above a minimum age, he suggested. Any conditional offer of employment should be made in writing.
Employers can ask about former military service, but not about the applicant’s discharge status. In some states, a “ban the box” movement seeking to improve employment prospects for ex-prisoners has resulted in laws making it illegal to ask about criminal convictions on an application form.
Shannon Oberkrom, an attorney with St. Louis firm Tonkin & Mondl, spoke on barge breakaways. She began with the story (recounted in Warrior & Gulf Navigation Co. v. U.S.) of a 1982 breakaway in which six barges broke away from a tow, creating multiple domino effects and damages during a period of unprecedented high water on the Black Warrior River in Alabama. One barge became lodged in a dam gate, preventing it from closing.
Oberkrom explained the applicable legal presumptions in such instances. The “Louisiana rule,” for instance, assumed that in collisions of allisions involving a drifting vessel, the fault lies with either the vessel’s owner or another party to whom custody of the barges has been entrusted, such as a fleet operator. For responsibility to shift, the third-party custody must be complete. The presumption does not absolve the plaintiff from proving negligence and injury, but it does shift the burden of proof onto the owner or effective operator of the vessel.
However, the “passing vessel presumption” can mitigate the vessel’s fault, if it can be shown that the wake of a passing vessel damaged a vessel or its mooring operations. To make use of this presumption, the vessel owner or fleet operator must show that the barges or boats were moored in such a way to resist ordinary swells. The mere fact of a vessel’s near passage is not enough to establish passing vessel presumption, unless the vessel was operating at a high rate of speed or unsafely.
The Louisiana rule is rebuttable, however, if the owner or operator can show that the allision was the fault of a stationary object (such as a bridge or other object without proper markings), that the vessel acted with reasonable care, or that the allision was an unavoidable accident.
Another defense is the superseding cause, sometimes known as “Act of God” or “force majeure” defense, in which the defendant alleges that the precipitating event (a flood or hurricane, for instance) was so severe and unavoidable that no reasonable precaution could have prevented the resulting allision or collision.
In fact, the defendants in the Warrior & Gulf case prevailed in the Eleventh Circuit on an “Act of God” defense. The court ruled that no fault attached to the Corps of Engineers in its operation of the Black Warrior lock and dam system.
Marine Casualty Investigations
Chief Warrant Officer Brandon Hansen, a marine casualty investigator with the Coast Guard, gave the final presentation on marine casualty investigations. His talk plunged the audience deep into the relevant regulations and the forms used to report marine casualties. Coast Guard preliminary investigations are not published, he reminded attendees.
He also noted that an administrative law judge has ruled that merchant mariner credentials and licenses can no longer be pulled during an investigation.
Interestingly, Hansen observed that blue-water Coast Guard veterans often “freak out” when transferred to brown water postings because the inland practices are so different. At sea, for instance, groundings are major emergencies. On the inland rivers, they happen every day and towboats are allowed “one strike” or attempt to get off the grounding before it even has to be reported.