Jones Act Maritime Lawyer : Houston Jones Act & Maritime Injury Lawyer & Attorney : Arnold & Itkin Law Firm : Offshore Injury, Maritime Law : Texas, Louisiana, Alabama, Mississippi, Florida

According to a study report released in mid-December, oil refineries in the Gulf Coast state of Louisiana suffer a pattern of frequent accidents and other warning signs similar to those ignored by BP in advance of April's Deepwater Horizon catastrophe.

The study's authors reviewed some 2,600 accident reports submitted by the 17 refineries operating in Louisiana from 2005 to 2009.  The reports, sent to the Department of Environmental Quality, reflect an average of 10 chemical accidents each week throughout the five-year period.  Weather and equipment failures were cited as the leading causes of accidental emissions of chemical pollutants to the air and to the ground or water.

The study report, entitled Common Ground II, is the second publication of the Refinery Efficiency Initiative, a collaboration of the Louisiana Bucket Brigade, the Environmental Working Group, the United Steelworkers Union, and others, including community groups located in parishes where refineries are situated.

The study's findings include:

1. Refinery accident data is underestimated.
2. Accident reduction is an opportunity for job creation and economic growth.
3. Refineries do not have sufficient storm and hurricane preparedness plans.
4. Refineries are not being thorough in their investigations of the accident causes.
5. Management trends — including laying off workers and deferring maintenance — may result in short-term profits for the parent corporation but are generally making refineries more dangerous.
6. ExxonMobil’s two Louisiana refineries (Baton Rouge Refinery and Chalmette Refining) had the most frequent accidents and the largest emissions from accidents.
7. The refining industry is not capitalizing on the opportunity to collaborate to solve the accident problem.

An oil company's failure to manage safety raises particularly serious risks for workers, public health, and the environment.  The unfolding lessons of the BP Deepwater Horizon tragedy offer a grim reminder of the grave harms that can result, whether on land or at sea.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

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Capsule reviews of noteworthy admiralty decisions recently handed down by the federal courts and the Department of Labor's Benefits Review Board —

Cohabitating fiancée was not decedent's "wife" and thus was ineligible to recover death benefits

Welch v. Fugro Geosciences, Incorporated
Benefits Review Board
No. 10-0381; November 24, 2010
In a per curiam Long Shore Decision, the Benefits Review Board addressed in Welch v. Fugro Geosciences, Incorporated the issue whether a claimant qualified as a decedent's surviving widow entitled to death benefits in accordance with provisions of the Longshore and Harbor Workers' Compensation Act.  The decedent, Byron Boswell, was killed in the course of his employment at a time when he was living with his fiancée, Linda Kay Welch.  Byron's employer and its workers' compensation carrier paid and settled various compensation claims, at which point Linda pursued recovery of death benefits.  Linda argued that she was Byron's "widow" for purposes of LHWCA § 9(b) or, alternatively, that she was an "other dependent" as classified under the Internal Revenue Code.  The administrative law judge disagreed and denied death benefits.  The Benefits Review Board affirmed, noting that all pertinent benefits clauses of the LHWCA required that a person be a decedent's "wife" or "husband."  Under state law (that of Louisiana), a marriage ceremony was a requirement for a legally-recognized marriage.  Linda and Byron never participated in a marriage ceremony, with the result that Linda was not Byron's "wife" at the time of his death, and she was not entitled to death benefits in that capacity.  She also did not meet the Internal Revenue Code's definition of a "dependent" of Byron, so that she was not otherwise eligible for benefits on that basis.

No maritime status existed where crew member alleged injury due to unsafe gangway supplied by dock owner

Landers v. Bollinger Amelia Repair, Limited Liability Corporation
United States Court of Appeals for the Fifth Circuit
No. 10-30236 (unpublished decision); December 9, 2010
The Fifth Circuit determined in Landers v. Bollinger Amelia Repair, LLC whether a maritime status arose between a dock owner and a docked vessel's crew member.  In this instance, the district court below correctly found that the answer was "no," with the result that there was no admiralty status.  Steve Landers was injured by a gangway supplied by Bollinger Amelia Repair (BAR) after the vessel to which he was assigned moored at a BAR dock facility.  When Landers brought suit against BAR for negligence under maritime law in failing to provide a safe gangway, the district court granted summary judgment in favor of BAR.  The court held that BAR did not have a maritime relationship with Landers, and that any claim under state law already had expired.  On appeal, Landers claimed that by requiring docked ships to use BAR's gangways, BAR stepped into the shoes of a vessel owner and therefore assumed a maritime duty to provide a gangway free from hidden defects under general maritime negligence law.  The Fifth Circuit rejected that notion, refusing to expand maritime jurisdiction in that way.  Instead, the general seaworthiness doctrine is limited to vessel owners and operators, only, and does not extend to dockside repairers.  The court also agreed with BAR that where one of its employees played no role in placing or removing the BAR gangway, its policy that docked ships had to use a BAR gangway was the sort of custom the court had found in the past to be insufficient to create a duty in tort.  The district court thus did not err in finding an absence of maritime jurisdiction and in applying non-maritime law as a basis to dismiss Landers's claim.

"Last employer" rule in LHWCA multi-employer occupational disease action requires sequential evaluation of employer liability

Albina Engine & Machine v. Director, Office of Workers' Compensation Programs
United States Court of Appeals for the Ninth Circuit
No. 09-70592; December 10, 2010
In Albina Engine & Machine v. Director, Office of Workers' Compensation Programs, the Ninth Circuit considered the "last employer" rule in a multi-employer occupational disease case under the Longshore and Harbor Workers' Compensation Act.  The widow of a worker who had died of mesothelioma due to asbestos exposure filed a claim for benefits against her husband's three maritime employers.  Upon trial, Albina Engine & Marine was deemed responsible for payment of benefits.  The Benefits Review Board (BRB) affirmed.  The Ninth Circuit disagreed, admonishing that the BRB had erred in rejecting as irrelevant to the issue of liability, in a multi-employer case, the presumption imposed under LHWCA § 20(a).  That presumption provides that, absent substantial evidence to the contrary, a claim for compensation presumably comes within the bounds of LHWCA.    The correct analytical approach in a multi-employer occupational disease action, the court said, was to consider sequentially, starting with the last employer:  whether the § 20(a) presumption successfully was invoked against that employer; whether the employer rebutted the presumption; and if so, whether a preponderance of evidence supported a finding that the employer was liable for the claimant's injury.

Simple post-judgment interest governs interest calculation on LHWCA past due disability payments

Price v. Stevedoring Services of America, Inc.
United States Court of Appeals for the Ninth Circuit
No. 08-71719; December 15, 2010
In Price v. Stevedoring Services of America, Inc., the Ninth Circuit decided the discrete issue of how interest on past due disability payments under the Longshore and Harbor Workers' Compensation Act is properly calculated.  The answer:  as simple interest at the federal statutory rate for post-judgment interest payable on district court judgments.  After an administrative law judge set an injured worker's average weekly wage and awarded simple interest on past due compensation at the rate set out in 28 U.S.C. § 1961(a), the Benefits Review Board (BRB) affirmed, as did the Ninth Circuit.  Section 1961 defined post-judgment interest for purposes of federal judgments, and while it did not apply directly to LHWCA compensation, the BRB had employed the statutory rate for over 25 years.  It was a sensible rate to use, the court also reasoned, given that it was market-sensitive, being tied to the one-year U.S. treasury bill rate.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

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Gulf coast residents and businesses that suffered substantial losses from the BP Transocean oil spill should be wary of bonus payments being offered in exchange for giving up their legal right to sue BP and other companies, Texas maritime attorney Kurt Arnold cautions.

According to Arnold, who is a founding partner in the Houston personal injury law firm Arnold & Itkin LLP, BP is offering the bonuses because defendants on claims arising from the Deepwater Horizon oil spill will likely have to pay much more to Gulf Coast residents and businesses who file lawsuits instead of settling now.  Thus anyone anyone considering the bonuses, including commercial fishermen, Gulf property owners and operators of tourism-related businesses, would be wise to talk to an experienced lawyer to understand a claimant's legal options first.

"For some, taking the bonus may be a good idea. But you sure want to be well-informed before signing away your legal rights," observed Arnold, whose firm represents victims of the Gulf oil spill and Deepwater Horizon disaster.

Kenneth Feinberg, who oversees the $20 billion fund set up by BP to compensate people for losses from the Gulf oil spill, announced that individuals would receive $5,000 bonuses and businesses $25,000 for signing final settlement agreements providing lump sum payments for past and future losses from the oil spill. However, those agreements require recipients to give up their legal rights to sue BP or other companies involved in the oil spill.

Jason Itkin, a Houston maritime attorney and founding partner of Arnold & Itkin, said the bonuses may be a reasonable option for some Gulf Coast people and businesses who have been fully compensated for their losses or had minimal economic losses. But many Gulf residents and businesses stand to gain more by filing a legal claim.

Itkin emphasized that residents should be especially wary of free legal advice about whether to sign the settlements.  Instead, “It’s an important decision, so you want to go into it with your eyes open, understanding all the pluses and minuses of whatever choice you eventually make.”  The best course, according to Iktin: “Find your own Gulf Coast oil spill claims lawyer who has experience with the Gulf Coast claims process and property damage claims. That’s important.”

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

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According to a recent New York Times report, formerly undisclosed documents show that Congressional officials expressed safety concerns about offshore drilling, the potential for oil spills, and BP itself, well in advance of April's Deepwater Horizon catastrophe.  In particular, concerns were raised regarding the safety of another BP oil platform based in the Gulf of Mexico, known as the Atlantis.  Federal regulators with the former Minerals Management Service were not especially responsive to Congressional inquiries on the matter, informing members of Congress in 2009 that they could not specifically address concerns about the potential for a "catastrophic" accident on the Atlantis.

The communications between federal regulators and Congressional officials came to light when the Interior Department responded to a Freedom of Information Act request by the New York Times.

According to the Times coverage, before the catastrophic loss of the Deepwater Horizon and the resulting oil spill, the MMS often had trouble getting attention from members of Congress and their aides, absent some pending issue with political implications.  That all changed with April's BP disaster, which led to the reorganization and renaming of the MMS, now known as the Bureau of Ocean Energy Management, Regulation and Enforcement.

Even after the Deepwater Horizon tragedy, officials with the federal regulatory agency apparently resisted providing some records because they held "proprietary" information that belonged to BP.

Notable among the information released was a letter, issued to BP by federal regulators a year prior to the explosion aboard the Deepwater Horizon, warning BP to exercise caution in drilling operations in light of "indications of shallow gas and possible water flow."

An ongoing formal investigation regarding safety issues aboard the Atlantis continues at this time.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

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Carey v. Ormet Primary Aluminum Corporation

No. 10-60075 (5th Cir. Dec. 8, 2010)

The United States Court of Appeals for the Fifth Circuit recently considered whether an injured longshoreman was improperly denied recovery of his attorney's fees under the Longshore and Harbor Workers' Compensation Act (LHWCA).  The longshoreman, James Carey, was injured while working for Ormet Primary Aluminum Corporation.  Ormet voluntarily paid benefits but later decided that Carey should be getting lesser benefits based on a lower average weekly wage rate.  At an informal conference to resolve the matter, a district director concluded that Ormet should continue to pay benefits at the higher rate.

Ormet disagreed but continued to make payments to Carey at the higher rate.  An ALJ subsequently rejected Ormet's position but also determined that Carey's average weekly wage rate fell between what Ormet was paying and what it wanted to pay.

Carey accepted the new rate calculated by the ALJ and petitioned for recovery of his attorney's fees.  The ALJ rejected the fee request on the ground that recovery of attorney's fees would be improper under LHWCA § 28(b) because "no greater compensation was ever received after the informal conference."  The Benefits Review Board (BRB) affirmed.

The Fifth Circuit observed that LHWCA § 28 permits a prevailing claimant to have an employer pay the claimant's attorney's fees for services necessary to the claimant's success.  Section 28(b) requires a showing of:  (1) an informal conference, (2) a written recommendation from the deputy or Board, (3) the employer’s refusal to adopt the written recommendation, and (4) the employee’s procuring of the services of a lawyer to achieve a greater award than what the employer was willing to pay after the written recommendation.  In Carey's case, all of those requirements were met.

The core dispute centered on the fourth requirement.  Ormet argued that because the ALJ-determined final award did not exceed the amount it voluntarily paid to Carey following the director’s informal conference, the plain language of § 28(b) precluded any shifting of attorney’s fees.  Carey countered that Ormet’s, and the BRB’s, reading of the statute omitted a critical qualifier—that the sentence preceding “the amount paid or tendered by the employer” made it clear that this amount meant the additional compensation, if any, to which the employer believed the employee was entitled.

The court agreed.  In essence, even though Carey accepted some compensation, he then used the services of an attorney to obtain an award greater than the amount to which Ormet thought he was entitled.  Thus Carey met the requirements of § 28(b) and the ALJ and the BRB erred in denying him recovery of attorney's fees.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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New safety regulations on offshore drilling may add needed checks and safeguards to prevent catastrophic blowouts and offshore accidents, according to Houston maritime attorney Kurt Arnold.  But, Arnold observed, the onus remains on oil and gas exploration companies to follow safety rules and avoid the kind of corner-cutting that jeopardizes offshore workers’ lives.

While efforts to focus more attention on offshore worker safety and protection of rig workers are tragically overdue, Arnold, a founding partner of the Houston maritime law firm of Arnold & Itkin LLP, cautioned that "the most stringent safety regulations won’t protect workers when reckless oil companies disregard them.”

The Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) outlined new federal regulations and safety procedures for offshore drilling December 8 at the First International Offshore Oil & Gas Law Conference in New Orleans, Louisiana.

Jason Itkin, a Houston maritime lawyer and founding partner of Arnold & Itkin LLP, observed how tragically unfortunate it was that tougher safety rules weren’t in place last spring to help to prevent the fatal explosion aboard the Deepwater Horizon.  “It’s unfortunate that government offshore worker safety regulations for too long failed to keep pace with the oil and gas industry’s expansion into greater depths,” says Itkin, whose firm is representing several injured Transocean workers.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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With the oil spill’s long-term impact still uncertain, Gulf Coast residents should wait before settling potential claims against BP and other companies involved with the Deepwater Horizon disaster, say the Houston maritime attorneys of Arnold & Itkin LLP.

Gulf Coast individuals and businesses should collect more information before signing away their right to take legal action against the companies responsible for the worst oil spill in U.S. history, according to Houston maritime lawyer Kurt Arnold.

“While I understand the desire of many Gulf Coast residents to move on with their lives, the fact remains that we still don’t know the full extent of the harm and pollution caused by the BP oil spill,” said Arnold, a partner of the Houston maritime law firm of Arnold & Itkin LLP.

In the wake of the April 20 Deepwater Horizon oil rig disaster, which caused an estimated 170 million gallons of oil and dispersants to be dumped in the Gulf of Mexico, the Gulf Coast Claims Facility was established to process claims through a $20 billion escrow fund.  The Gulf Coast Claims Facility currently is offering two different types of payments for claims filed through August 2013. If claimants accept a lump sum payment, they must agree not to sue BP or any other companies linked to the Gulf Coast oil spill. If they file for interim payments based on verified past costs and damages, however, claimants retain the right to take future legal action.

Jason Itkin, a Houston maritime lawyer and partner of Arnold & Itkin LLP, said information continues to emerge showing that the extent of harm caused by the oil spill is still uncertain.

“That’s why Gulf coast residents, especially those with ties to the seafood and tourism industries, should monitor and collect this information before making a decision with the claims process that could affect their right to a full recovery,” he said.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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The latest oil rig explosion off the Louisiana coast injured at least three workers, emphasizing yet again the hazardous and often deadly work conditions routinely faced by those in maritime employment.

“It’s a shame to see yet another tragedy happen on one of our region’s drilling rigs,” said Kurt Arnold, a partner in the Houston-based maritime injury law firm of Arnold & Itkin LLP, which represents injured offshore workers in Texas, Louisiana, Mississippi and Alabama. “It’s our sincere hope that the workers and their families are getting the care and attention they need right now.”

According to Arnold, “The series of oil rig explosions we’ve seen in recent months shows that drilling companies are still not doing enough to make sure their workers are safe."

The U.S. Coast Guard website indicated that the December 1 rig fire occurred roughly 20 miles south of New Orleans in Bayou Perot. The work-over rig, owned by Grosse Tete, was located in inland waters and not in the Gulf of Mexico. Louisiana Delta Oil reported the incident.

The Coast Guard has reported that three crew members were injured.  Media reports indicated at least two workers were burned.

“We need better safety measures and practices to be in place to keep these incidents from happening,” said maritime attorney Jason Itkin, a partner of Arnold & Itkin, which is representing several Transocean workers who were injured in April's Deepwater Horizon explosion.

“Injured oil workers may be compensated for their injuries by filing claims under various federal laws, including the Jones Act,” Itkin explained, “but we need to be more proactive in protecting them.”

For more information about issues in maritime injury law and the services offered by Arnold & Itkin LLP, please visit:  Jones-Act-Maritime-Lawyer.com and LawyerForYou.com. For a free consultation, contact a maritime lawyer at Arnold & Itkin LLP by calling toll free (866) 222-2606.

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Agencies and officials of the federal government continue administrative and research efforts toward the long-term recovery of the Gulf Coast ecosystem after the Deepwater Horizon tragedy.

Primary among the recent efforts are a September report issued by former Mississippi Governor and current Secretary of the Navy Ray Mabus, and the establishment in October of the Gulf Ecosystem Restoration Task Force.

The Mabus Report, entitled America's Gulf Coast, A Long Term Recovery Plan after the Deepwater Horizon Oil Spill, offers a plan that encompasses five areas deemed critical to the Gulf region's long-term recovery:

1. Proposal to Congress to Dedicate Clean Water Act Civil Penalties to the Gulf Coast
2. Long‐Term Ecosystem Restoration
3. Health and Human Services Recovery
4. Economic Recovery
5. Nonprofit Sector Recovery

Among other things, the report recommends the establishment of a Gulf Coast Recovery Fund under the management of representatives from all levels of national, state, and local government, with funding from fines imposed against responsible parties in the BP Deepwater Horizon disaster.

The Obama administration established by executive order on October 5th the Gulf Coast Ecosystem Restoration Task Force, chaired by EPA Administrator Lisa Jackson.  The task force's mission is to coordinate efforts to implement restoration programs and projects in the Gulf Coast region, according to the White House.  The task force also will coordinate with the Department of Health and Human Services on public health issues and with other federal agencies on ways to enhance the economic benefits that ecosystem restoration will bring to the region.  John H. Hankinson, Jr., was shortly later named as the task force's executive director. President Obama appointed Mimi A. Drew, Dave Stewart and Garret Graves as state representatives to the Gulf Coast Ecosystem Restoration Task Force.  The White House announced that Drew is currently the Secretary of the Florida Department of Environmental Protection, Stewart is the chief of staff to Alabama Gov. Bob Riley, and Graves is chairman of the Coastal Protection and Restoration Authority of Louisiana, the White House.

On the legislative side, various acts also have been proposed in the U.S. House of Representatives and the U.S. Senate that would impose a civil penalty for Gulf of Mexico oil spills, and require that the bulk of penalties imposed against BP for oil spill damages pursuant to the federal Clean Water Act be set aside for Gulf Coast environmental and economic recovery efforts.

Most recently, the Federal Interagency Solutions Group issued a peer-reviewed report detailing the scientific calculations underlying the Deepwater Horizon Oil Spill "Oil Budget Calculator."  The calculator seeks to determine what portions of the oil discharged by the BP Deepwater Horizon well were recovered, dispersed, evaporated or otherwise remediated, and how much remains in the Gulf environment.  The report is largely consistent with early analysis results released by the federal government.  According to those involved, the most significant change is a doubling of the expected amount of oil classified as “chemically dispersed” — revised from 8% to an estimated 16% with a possible range of between 10% and 29%.

The oil budget analysis is intended to provide critical guidance for continued recovery efforts in the Gulf.  The necessity of that information became apparent, once more, in late November.  On November 24, "out of an abundance of caution," NOAA closed 4,213 square miles of Gulf of Mexico federal waters off Louisiana, Mississippi, and Alabama to royal red shrimping. According to the agency, the precautionary measure was taken after a commercial shrimper, having hauled in his catch of the deep water shrimp, discovered tar balls in his net. The tar balls found in the catch may have been entrained in the net as it was dragged along the seafloor. The tar balls are being analyzed by the U.S. Coast Guard to determine if they are from the Deepwater Horizon/BP spill.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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According to media reports, the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling withdrew a revealing slide originally intended for a scheduled presentation in November.  The November proceeding was a chance for the panel to present tentative findings as part of its ongoing investigation into the causes of the Deepwater Horizon calamity.

The withdrawn slide, obtained by Greenwire, indicated that the companies BP, Halliburton, and Transocean made a series of decisions that enhanced risks associated with the Deepwater Horizon's drilling operations, and that the decisions were made in order to save time.  The rig's drilling effort reportedly was behind schedule at the time and was costing some $1.5 million per day.

The findings reflected on the slide were inconsistent with earlier statements by chief counsel to the Commission, Fred Bartlit.  In a prior presentation, Bartlit stated that workers involved in the drilling project, both onshore and on the Deepwater Horizon platform, did not take shortcuts on safety as a means to save money on the expensive oil exploration effort.

A representative of the National Commission stated that the withdrawn slide was removed from Bartlit's presentation at the last moment because it was still subject to review by the commissioners.  Apparently the item was uploaded to the National Commission's website for a time, but later was removed.

The slide, entitled "Various Decisions That May Have Increased Risk," notes that ten of eleven identified decisions were riskier than proceeding in an alternative way, while the other decision "possibly" was riskier.  The slide notes, too, that nine of the risky decisions "saved time" versus the alternative.  All of the decisions, according to the slide, were unnecessary.

The risky and unnecessary decisions, as cited on the National Commission's slide, include:

1. Not waiting for more centralizers
2. Not reevaluating cement slurry design
3. Not waiting for foam stability results
4. Not running diagnostics on float equipment to ensure conversion or seal
5. Using combined spacer and not flushing from system
6. Displacing mud from riser before setting plug
7. Setting cement plug 3000 feet deep in seawater
8. Not running cement evaluation log
9. Not installing additional plugs or barriers
10. Undertaking simultaneous operations could confound kick detection
11. Bypassing pits and flow out meter during displacement
    

In the aftermath of the April disaster, the various companies implicated in the Deepwater Horizon tragedy have sought to shift blame amongst themselves for the bad decisions that preceded the oil platform's horrific destruction, with the attendant loss of life and injury to many workers.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation or call our maritime law office toll free at 866-222-2606.

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