The 38th annual seminar of the Greater News Orleans Barge Fleeting Association—which one public relations executive calls “the Super Bowl of marine insurance”—was held live April 26-29 in New Orleans, after a two-year hiatus due to restrictions from the COVID-19 virus. This year’s seminar offered a new feature, a mock trial of an aspect of a maritime law scenario.
The long-awaited event had been held annually since its founding in 1982 by maritime attorney Maurice Hebert Jr. and a group of friends and associates. It’s not just for marine insurers. The GNOBFA seminar has long been one of the most respected maritime events, where inland barge and vessel owners and operators, brokers, insurers, maritime attorneys and other inland marine professionals educate, and learn from, their colleagues.
The GNOBFA seminar was held at the Intercontinental Hotel in downtown New Orleans, the same location where it has been held since it moved out of a smaller venue after its founding by Hebert and seven others 41 years ago.
The city of New Orleans was recovering from more than just the coronavirus. Karl Gonzales, president of GNOBFA and vice president of operations for Plimsoll Marine Inc.-Cooper/T. Smith Stevedoring, noted in his introduction that St. Charles Parish took a “direct hit” from Hurricane Ida, and said the damage was the worst in 28 years.
Rear Adm. Richard Timme, commander of the Eighth Coast Guard District, delivered the keynote speech, praising members of his district team during Hurricane Ida. Capt. Kelly Denning, the new captain of the port for Sector New Orleans, was present and took part in several panels. Cmdr. Joe Hart, Capt. Will Watson and other Coast Guard personnel worked throughout Ida to help coordinate rescues and responses with industry partners and local responders.
“Never have I seen the Coast Guard so expeditionary [as during Ida],” Timme said. He said the urgent calls he and his team were getting from Washington during the Ida responses were not about flooding (the levees and protection structures built by the Corps of Engineers held this time), but asked, “When will the [Mississippi] River reopen?” Partnerships with the inland towing industry were crucial to making that happen, he said.
Timme said 82 percent of the District 8 towboat fleet is fully certificated in compliance with Subchapter M as the July deadline for 100 percent certification approaches and said the Coast Guard “would not disadvantage” those operators who have gone through the Sub M process. He added that the Coast Guard “continues to work” on consistency of enforcement. He paid tribute to Adm. Linda Fagan, who is due to take over as commandant of the Coast Guard in May, following the retirement of Adm. Karl Schultz. Timme noted that Fagan’s 36-year career features a strong prevention and safety background.
Tribute To GNOBFA Founder
Attendees stood as a trumpet player performed the national anthem. Then Jeff Tillery, a Jones Walker partner and veteran of many GNOBFA panels, gave a surprise tribute to Maurice Hebert, who had celebrated his 85th birthday the day before. Tillery’s jocular tribute was too gentle to be called a roast, but he did mention that Hebert had “never lost a case to Ivy league lawyers” and called him an “icon.”
Maurice Hebert “retired” from practicing law full-time to become a consulting mediator 18 years ago, a practice he still maintains. His son Marc Hebert, a senior partner at Jones Walker, shared co-moderating duties with his father for years before taking over as seminar moderator.
This year’s scenario featured a barge fleet, the fictitious “Lucky Seven,” in the wake of an Ida-like hurricane, during which other barge operators deposited unauthorized barges without notice or permission in Lucky Seven’s fleet to protect them from the hurricane. As a Lucky Seven towboat attempted to tie up a listing barge, the captain ordered a deckhand to jump onto the barge, where he slipped, fell and suffered serious head and back injuries.
The seminar was set up to follow the scenario through all the phases of claims, litigation, mediation and settlement.
Denning outlined all the stages of a hurricane alert, from pre-storm and “Whiskey” (hurricane expected to hit within 72 hours) through “Zulu” (12 hours to impact) and post-storm assessment and cleanup.
What Is An ‘Act of God’?
Panelists debated legal concepts such as “act of God” and “force majeure” as defenses against liability or damages. When should they be used, and how often do they work? Liskow & Lewis attorney David Riesman said it is never a good idea to rely on an “act of God” defense in advance. He said courts differ on when an act of God defense applies, but generally it must be so severe that no human effort could have mitigated it or prevented its effects. “Even with an act of God defense, you must still show you made reasonable efforts to avoid liability,” he said, such as anchoring ships at least 1,000 yards apart and taking other prudent preventive measures.
Panelist Norm Antrainer, an independent marine surveyor, spoke of how vulnerable Mississippi River fleets were during hurricanes. He said two Lykes Bros. ocean-going vessels that were sunk by runaway barges during Hurricane Betsy in 1965 are still there, marked by buoys.
Referencing the scenario. Alan Savoie, longtime GNOBFA officer who acts as floor manager, asked whether a barge operator who sneaks barges into another fleet could be regarded as trespassing and retain liability in case of any mishap with the unauthorized barge. Riesman said yes but warned that fleet owners should always have a heavy weather plan in place—and demonstrate that they complied with it. “Don’t try to figure it out in the face of a hurricane,” he said. But he added that even if negligence can be shown, it might not matter if the hurricane is so severe that the negligence didn’t matter.
Regarding when barges are admitted to fleets, Marc Hebert said towing contracts are key to avoiding liability. Riesman said fleets will often send out “naming and waiving” notices attempting to offload liability onto barge owners, but they aren’t always able to trump written contracts.
Regarding whether pilots or captains have ultimate authority to move a vessel when a storm is expected, panelist Louis “Toby” Wattigney of the Baton Rouge Steamship Pilots Association, said courts have said it’s the captain.
Who You Gonna Call?
Panelists then discussed who the vessel operator should call first after a hurricane event: the Coast Guard, a surveyor, their attorney or their insurance broker. Most agreed that one of the last three should get there ahead of the Coast Guard to coordinate with the Coast Guard investigator.
Denning noted that Coast Guard investigators are not required to wait for attorneys to interview witnesses; “Our purpose is to prevent marine casualties, although 99 percent of the time we will wait for attorneys.” She said fewer than 5 percent of marine casualty investigations involve actions against a mariner, and most of these involve drug or alcohol violations. The rules for evidence discovery of testimony given under Part 4 (marine casualty investigations) differ from that given under Part 5 (criminal investigations). “Under Part 5, I would notify the mariner” of his rights, Denning said.
She added that after Ida, the Coast Guard responded to 2,496 marine environmental targets and 273 sunken or grounded vessels and investigated 150 marine casualties.
The next panel discussed how to interview witnesses and gather information to determine insurance coverage and liability. Peter Tompkins, a defense attorney at Murphy, Rogers, Sloss, Gambel & Tompkins in New Orleans, said it’s important to get the status of all parties of interest.
Antrainer noted that as an independent marine surveyor, he is a fact finder, and it is up to the lawyers to determine what to do with the evidence. Tompkins said the owner of the equipment (or his legal representative) has the right to dispose of all physical evidence. Asked what documentation he would collect, Antrainer said it would include contact information for who called him, the names of all relevant pieces of equipment and their pictures and measurements. Cell-phone pictures and/or videos that may have been recorded by crewmembers are also collected if possible.
Tompkins said it’s never a good idea to have a lawyer sign a Form 2692 marine casualty report. “I’d rather have the captain or crewmember sign it,” he said. Cmdr. Hart said he’s never seen one signed by an attorney.
Value Of Mock Jury Trials
Marc Hebert introduced jury consultant Kelly Tobin, whose firm, Tobin Trial Consulting of Houston, Texas, is 36 years old. Tobin, who conducts between eight and 10 mock trials a year, recruited the GNOBFA mock jurors. Presiding over the “court” was Judge Andrew Edison, a U.S. magistrate judge from the Southern District of Texas, who served on several other panels. The rules of the “court” approximated those of a real jury trial, and attendees were asked not to speak to jurors.
The mock jury was to decide on the personal injury phase of the case. Arguing for the plaintiff was Tony Clayton, a prominent attorney at Fruge & Ward, Baton Rouge, La., and also a district attorney in Iberville Parish. Tillery presented for the defense. The judge gave them detailed instructions based on maritime and Jones Act law, and the jury retired into a jury room. Their deliberations were projected onto a big screen in the main conference room.
After about 30 minutes of deliberation, Tobin went in with a list of questions. Was Lucky Seven negligent? Was any company negligence a cause of the plaintiff’s injury? Was the plaintiff himself negligent? Were the plaintiff’s injuries caused by himself in whole or in part? Were they caused by an act of God?
Attendees were riveted by the jurors’ debate, which was contentious at times. Many said they appreciated being able to see the kinds of arguments jurors use among themselves, which often differ from those presented by the opposing attorneys. Tobin said this is one important reason why mock trials offer such useful information to attorneys, even though they are not predictive. Juror deliberations are normally private, and attorneys don’t get to hear them. Clayton admitted that his own “biases” about which types of jurors would argue a certain way were undermined by the jury room discussion.
Tobin said she uses the term “jury research” rather than mock trial, since each jury differs, and many factors can affect deliberations. But she said no client ever regretted using them. The mock trials can help attorneys spot issues and develop arguments they might not have used otherwise. They are often used in cases where settlement demands are seen as unreasonable, or where some aspect of a life care plan for a plaintiff is “unsettling.”
All panelists agreed on their value. Clayton said high-priced jury consultants are not the only option. He has used mock juries recruited from church groups and other venues. “Mock trials should have been happening a long time ago!” he concluded.
Ethics And Professionalism
Old-school attorneys frequently say they manage each case as if it were going to trial. But jury trials are increasingly rare; most cases nowadays are resolved through mediation or arbitration. The session on ethics and professionalism in the discovery, mediation and litigation process was moderated by Judge Kurt Engelhardt, a magistrate judge of the 5th Circuit U.S. Court of Appeals. Federal Magistrate Judge Andrew Edison from Galveston, Texas, also joined the panel.
Paul Sterbcow, a plaintiff attorney at Lewis, Kullman, Sterbcow & Abramson in New Orleans, spoke about the discovery process prior to mediation, which is all about pricing the value of a case. Sterbcow and other panelists spoke about the importance of collegiality and professionalism between the plaintiff and defendant attorneys when it comes to sharing information. “Get into the weeds early on,” advised Wayne Zeringue, a defense attorney at Jones Walker.
Face-to-face conversations with witnesses are crucial and should be done as soon as possible. Daniel Tadros, an insurance industry representative with the American Club, said, “Insurers want to know at the outset what we’re looking at.”
Federal Vs. State Courts
Although federal courts usually have jurisdiction over Jones Act and maritime law cases, there is a clause called the “savings to suitors” clause that allows suitors (plaintiffs) to bring personal injury cases, even some maritime ones, to state courts instead. Judge Engelhardt noted that federal courts have limited jurisdiction in personal injury cases, while state courts have general jurisdiction.
Zeringue said, “We [i.e., the defense] always prefer federal jurisdiction where possible,” because federal courts have more resources and can exclude jurors for cause. Judge Edison (a panelist at this session) said some lawyers are less familiar with either the federal or state systems. Tadros said federal judges are usually more familiar with maritime law. Under maritime law, the value of any claim can’t exceed the value of a vessel—a limitation that doesn’t apply in state court.
Judge Edison noted that federal judges have a lot of discretion due to their lifetime appointments. Some can have their own rules of procedure; he mentioned one judge who stipulated “no footnotes” in documents sent to him. Judges can also change their procedures, instructions and rules.
Mediation And Settlement
The panel on Ethics and Professionalism in the Court Room, Mediation and Settlements was introduced by Maurice Hebert, who said this would be his last time speaking at a GNOBFA event. “I won’t be a Tom Brady,” he joked. “I’ll keep working on the speaker selection, but I won’t speak again.” He then quipped that he was bringing a defamation suit against Tillery for calling him an “icon” and provoked a laugh by saying, “Let the mock jurors decide!”
Hebert said a mediator’s biggest asset is confidentiality. “About 75 percent of our material is from the plaintiff attorney!” he said. “The company holds back because they don’t want us to see the bad stuff, but we see it anyway!”
Panelist John Karpousis, of Freehill Hogan & Mahar LLP in New York, said 96 percent of his cases settle, about 80 percent of those through mediation. Robert Milana—a mediator who is also an attorney—said it is vital for a vessel owner to have a personal representative at a mediation or be there himself. “They should want to attend,” he said, and gave an example of a vessel operator who gave “devastating” rebutting testimony about which direction a fleet of barges was facing and why it had to be that way, complying with Coast Guard rules. Milana said the testimony completely shut down a line of attack, and the lawyer might not have been able to do that, no matter how competent.
L. Blake Jones, a partner at Blake Jones Law firm in New Orleans, said it’s always a good idea for lawyers to be polite and non-confrontational. “Don’t use phrases like ‘alleged pain and suffering,’” he advised.
COVID-19, Cyber Risk
The panel on cybersecurity focused on what an operator has to do to avoid risk and ensure compliance with both Subchapter M and with insurance terms in case of a cyber event. The Coast Guard requires having a cybersecurity plan as part of an operator’s Towing Safety Management System certification—and demonstrating that the operator complies with its own TSMS. Operators who can’t show such compliance can risk not only being out of compliance with Subchapter M, but of finding out that they are not covered in the event of a cyber-breach.
The panel included Adm. Wayne Arguin, director of inspections and compliance at Coast Guard headquarters.
The last panel focused on avoiding risk from personal injury claims, and featured experts in pain management, neurosurgery, orthopedic surgery and sports medicine, as well as a plaintiff and defense attorney. Much of the discussion focused on back injuries and the many challenges in diagnosing and treating them.
Dr. Najeeb Thomas, a neurosurgeon with the Southern Brain & Spine Center in Metairie, La., gave a presentation on disc injuries and diagnostic findings in back injury cases. His colleague, Kevin Martinez, spoke on pain management and various treatments for nerve pain, including selective blocks, radiofrequency treatments, lumbar medial branch blocks, spinal cord stimulations and facet injections. Dr. Scott Tucker of Jefferson Orthopedics spoke on managing soft tissue injuries to the extremities.
All the panel physicians emphasized the importance of matching reported symptoms with objective measurements.