River and Marine Industry Seminar co-moderator Marc Hebert and a GNOBFA panel respond to question from the audience. (Photo by David Murray)

GNOBFA’s 40th Anniversary Seminar Features Packed Agenda

The recently concluded 40th anniversary River and Marine Industry Seminar of the Greater New Orleans Barge Fleeting Association in New Orleans saw an appearance by former co-director Maurice Hebert, now retired. Hebert remembered the original seminar , when 83 people showed up. There was very little money then to stage or promote it, he recalled. For 40 years, the GNOBFA organizers have stayed true to their determination to offer serious academic “nuts and bolts” sessions, and not to promote any individual business.

“By 2012, of the 68 original companies that participated, 42 were gone,” Hebert recalled. A constant tenet of the GNOBFA seminar has been audience involvement. Hebert said a former captain of the port, Jim Calhoun, told him, “Bring it down to our level.”

“We learn from people in the audience. You are the people who teach us,” Hebert reminded attendees. Panel discussions are active, with audience members asking frequent questions.

Maintenance And Cure Payments

The second session at the seminar revolved around a familiar, perennial topic in maritime law—the present and future of maintenance and cure. It was “Part II” of last year’s panel on the same topic. The panel included Kristi Post of Blake Jones, a distinguished maritime attorney who has spoken at GNOBFA previously, and Guerric Russel, a partner at Nicoletti, Hornig & Sweeney.

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Moderator Marc Hebert introduced the topic by remarking that he was involved in the case in the 1970s in which a judge recalculated the estimated cost of maintenance from the existing $15 a day to $40 a day.

As with previous GNOBFA seminars, the maritime law questions were framed by a single complex fictional scenario, in which a blue-water cargo vessel lightly strikes a tow, breaking barges free that drift and destroy a terminal dock and result in several injuries and one fatality of a deckhand who falls overboard. The fictional towboat captain is later found to have left the bridge and to have had a prior drug conviction.

Related: GNOBFA Marine Seminar Kicks Off In New Orleans
Related: GNOBFA Sexual Harassment Panel Provokes Discussion

Maintenance and cure payments made to injured mariners are among the oldest remedies in maritime law, going back centuries to a time when mariners had little other legal recourse for injuries and were considered wards of the admiralty courts (as they remain today). “Maintenance” replaces lost wages, and “cure” refers to medical payments made to the point of “maximum medical improvement” or cure.

M&C payments were part of maritime law in both England and France before becoming part of U.S. maritime law. The payments are made regardless of fault and apart from any other contractual stipulations. The seaman has the burden of proof in M&C cases, but it is described as “feather-light,” similar to Jones Act negligence claims. The employer has both the right and duty of investigation of claims, but any doubts about the employer’s liability are resolved in the mariner’s favor.

“Cure” payments do not have to cover palliative treatment if it does not result in substantial improvement, even if doctors recommend it. The mariner gets to choose his own medical provider. The cure payments are made until the medical provider judges that “maximum medical improvement” has been reached, regardless of the mariner’s ability to return to work or not.

The next panel considered occupational medicine and functional capacity evaluations (FCEs) as part of the “cure” portion of M&C payments and diagnoses. Brian Bourgeois, M.D., is a longtime veteran of treating mariners’ back issues and speaking about them at GNOBFA. Trevor Bardarson, partner and director of a physical therapy clinic, described his function as, “We quantify what employees do” to address their complaints. Kent Morrison, a partner at the Phelps firm who works in maritime personal injury law, moderated. Bardarson and Bourgeois led a discussion about the various types of occupational tests and their validity.

Bourgeois stressed that all employers should perform FCEs before hiring anyone, because, “After hiring, their problems become your problems.” It’s reasonable to have them done every two years. One of the reasons they are so valuable is that they can reveal things that cannot legally be solicited by the employer. He said the medical examiner’s white coat functions like “Wonder Woman’s magic lasso,” leading patients to reveal many things. “You, as the employer, are not allowed to ask certain questions; I am,” Bourgeois said. The FCE examiner needs to have a good understanding of what the job entails. “I see my job as protecting both sides, with no conflict of interest,” he said.

The panel discussed the “McCorpen defense” against fraudulent M&C payments, if it can be shown that the mariner is faking an injury or concealing a prior injury. Morris said a failure to provide periodic FCE exams can weaken a McCorpen defense.

Bourgeois noted that simply having a herniated disk doesn’t necessarily indicate injury, since most of us get them. He himself herniated a disk after a horse-riding injury recently. A disk does not have pain fibers, but if it impinges on a nearby nerve, then pain can result, he said.

How To Deal With State Marijuana Laws?

Aside from the panel on sexual harassment, the one on cannabis use and drug laws dealt with the issue most fraught for vessel owners.

Federal law is clear: the Controlled Substances Act still regards marijuana as a strictly regulated Schedule 1 controlled substance that is illegal to grow or possess except in certain federal research programs. As Patrick Manion, U.S. Coast Guard Drug and Alcohol Prevention and Inspection Program Manager, and a GNOBFA panelist made clear, to the Coast Guard, all marijuana use is an absolute “no.” He cautioned mariners to take all claims of percentage of THC or CBD in products labels with a large grain of salt, as those claims remain unregulated.

By contrast with federal law, 37 states have passed laws changing the status of cannabis, 17 of which allow its recreational use.  Legal cannabis is now estimated to be a $4 billion industry. California alone collects $100 million in taxes on legal cannabis annually. Edible products containing both CBD and THC—two compounds taken from marijuana—are now widely available in many states. Texas allows up to .3 percent of CBD in consumables.

Vessel owners may be faced with employees who test positive for marijuana, but who have used it for medical reasons legal in their states, or who have consumed edibles that may make them test positive without realizing it. Some states even have laws requiring employes to “accommodate” an employee’s use of medical marijuana or face a discrimination lawsuit. Indeed, one woman fired for testing positive due to her use of a product containing CBD filed a discrimination lawsuit, which was settled. However, the Federal Americans With Disabilities Act does not require accommodation to cannabis use.

Most vessel operators simply prohibit any and all use of marijuana products. That leaves the problem of how to properly test for it. As the panel discussion made clear, testing technology is evolving. One panelist noted, “Today’s drug tests won’t exist in 10 years.” Since there are still many unresolved issues about how to test for actual impairment and how to test for metabolites remaining in the system, the Coast Guard has been reluctant to issue any new regulations.

Meanwhile, panelists voiced concern about new synthetics being manufactured overseas, which mimic the effects of popular psychoactive drugs but which are unregulated as yet and indetectable with current testing technology.

Motions ‘In Limine’

The next panel addressed an issue of special concern to attorneys: when to file a motion in limine, in which a judge must decide whether to exclude a jury from hearing or seeing certain evidence. The panel considered the scenario of a severely injured deckhand, “Thibodeaux,” and what his lifetime earnings might be. The expert testimony revolved around whether he would persist in his chosen career and advance to a higher earning position. “Thibodeaux” had only worked a few weeks, although he had gotten good work reviews from his supervisors.

The two contending attorneys were GNOBFA veteran Jeff Tillery and Anthony Buzbee of Buzbee Law Firm. The expert witness was John Theriot, a CPA and economist in Metairie, La. The attorneys “argued” before the judge on the panel, the Hon. Kurt Engelhardt, a judge in the Fifth Circuit, who is also a multiple repeat GNOBFA panelist. Engelhardt explained that the court’s “gatekeeper” function is to keep the jury from hearing potentially prejudicial evidence.

A deckhand would make about $48,000 a year, whereas a tankerman makes almost double that, $85,000 a year. Buzbee, the plaintiff attorney, had estimated the injured mariner’s future earnings at $2.5 million, presuming he continued and was promoted to tankerman.  If he stayed at his current level, his estimated earnings would be $750,000—quite a difference for the company that might have to pay them.

Lifetime Earnings Question

Three legal cases say it’s OK to consider promotions and advancement in estimating future earnings—but only if there is hard evidence that the plaintiff had taken concrete steps to advance. In one case, a dancer who told a judge she aspired to become a ballerina before her injury was denied the ballerina’s lost wages. Tillery argued that, similarly, mere “aspiration” is not enough; Thibodeaux would have had to take concrete steps, like attending or signing up for special courses. Tillery wanted any testimony about what Thibodeaux’s wages would have been as a tankerman excluded from the jury’s hearing. But Thibodeaux’s supervisor had deposed that it only took him (the supervisor) a few weeks to advance to a tankerman position.

Both attorneys then questioned Theriot about the documents and other evidence he reviewed to determine his estimate of Thibodeaux’s lifetime earnings. As an expert witness, Theriot is allowed to speak to his own expertise in cost of living and earnings, but not to refer to legal cases (unless instructed to do so), since he is not an attorney.

Buzbee said that in disputed cases, he generally prefers for juries to hear evidence, despite the instruction that decisions are to be decided on the evidence, not personal sympathy. He did admit, though (to laughter) to once responding to a lawyer new to Jones Act maritime law, who asked him what it meant in cases like this that, “It means the seaman is supposed to win!”

After the sexual harassment panel, the seminar took a lighter turn, with a Jeopardy-style “lightning round” covering all maritime topics, moderated by another judge, the Hon. Andrew Edison.

The next panel, considering allisions, collisions and salvage operations, featured marine surveyor Kyle Smith; Andrew Brown, attorney from Ingram Barge Line; and Samuel Blatchley, a defense attorney with Eckland & Blando, who explained that the history of “hull policies” covering damage to hulls from “perils of the sea” goes back to the 16th century and even earlier.

Next the panel covered maritime lien and vessel seizure, “two of the most powerful procedures in maritime law.”  according to maritime attorney Sam Blatchley.

The opening panel on Friday covered what to do in the event of a joint investigation by the U.S. Coast Guard and National Transportation Safety Board. Panelists included Capt. Gregory Callaghan, deputy sector commander of the Coast Guard’s Eighth District in New Orleans; Michael Magner, partner of Jones Walker’s litigation group; Nicholas Moses, assistant district attorney of the Eastern District of Louisiana; Charles McCammon of Willis Towers Watson; Robert “Chip” Birthisel of Hamilton, Miller & Birthisel LLP, who moderated; and Liam LaRue, an investigator for the Office of Marine Safety in the National Transportation Board.  The analysis followed the same hypothetical situation given on the first day.

Callaghan explained that when the Coast Guard gets the initial call, it will close the river, set up a safety zone, notify headquarters and the command center, and notify pollution and casualty investigators. It will probably bring in the Corps of Engineers and decide whether to set up a unified command. Birthisel said he would assemble a team with whom he had prior relationships. “I should not be meeting them for the first time!” he said. He said a criminal attorney would be on his “speed dial,” along with media specialists.

Birthisel was lead counsel of the Coast Guard and NTSB during the investigation of the El Faro incident in 2015, one of the worst marine tragedies in U.S. history. The El Faro sank in a hurricane, taking the lives of 33 mariners. Marc Hebert said company policy in the wake of an accident should be to put a hold on all employee emails and messages. They should not be allowed to take any pictures with their phones. Magner said media training should be part of all company training in dealing with a serious incident.

Birthisel said the government’s discovery process is not like that of a civil proceeding. Instead of submitting a list of emails, it will simply take your entire server and feel free to use whatever it finds there. He said the Coast Guard and NTSB will usually honor requests by company attorneys to be present at interviews with employees. He advised attorneys to not take statements, which are discoverable, but instead to ask questions and take notes, which are a protected legal work product.

LaRue, of the NTSB, explained that although NTSB investigators may call on some of the same experts as the Coast Guard, their purpose is different. The NTSB produces factual reports and may interview people differently than the Coast Guard. They may admit “parties of interest” to interviews, but they can’t be attorneys or insurers. The NTSB shares its factual and technical findings with all parties, but not its analysis and conclusions. The NTSB is purely safety-oriented, he said, and does not conduct criminal investigations.

Marc Hebert advised companies to remove from their Safety Management Systems anything that doesn’t apply to their vessel’s operations, “because you will be asked about it, whether it applies or not.” He reminded attendees that SMS’s are living documents, “so keep them updated.” McCammon said he believes that SMS’s will eventually spread through the entire industry, including smaller operators.

Caption for photo: River and Marine Industry Seminar co-moderator Marc Hebert and a GNOBFA panel respond to question from the audience. (Photo by David Murray)