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

Maritime law attorney Kurt Arnold, of Houston’s Arnold & Itkin LLP personal injury law firm, recommends that offshore workers in Louisiana and Texas apply quickly to take advantage of recently re-designated BP Deepwater Horizon disaster relief funds.

An estimated 9,000 boat operators, shipyard workers who load supplies or repair equipment, workers who provide industrial chemicals or food for the rigs and diving and crew boat workers will be eligible for hardship grants ranging from $3,000 to $30,000.

“Like many of the government mandates in the wake of the BP/Deepwater Horizon oil rig failure, the regulations pertaining to BP’s relief fund can be complicated,” said Arnold, a founding partner of Arnold & Itkin LLP.

“Those who think they are affected should seek legal help from a firm familiar with this ongoing case, as well as maritime law in general,” Arnold noted. “The ongoing impact of this disaster is wide-reaching and complex for individuals and businesses, and those hurt by it should make sure their rights are protected.”

Individuals who were working on May 6, 2010, in direct support of a deepwater drilling rig affected by the federal moratorium on drilling enacted after the BP Deepwater Horizon disaster can file grant applications from March 15 to May 13, either online at RigReliefGrants.org or by calling (866) 577-8141.

The Gulf Coast Restoration & Protection Foundation is administering the $110 million disaster relief fund, and says it expects to mail all award checks to approved applicants by June 15.

Many oil rig workers and other offshore workers injured in the BP Deepwater Horizon disaster, along with businesses throughout the Gulf Coast region damaged by the impact of the oil spill, have called upon the attorneys of Arnold & Itkin LLP to assist them in resolving claims against Transocean and BP.

The maritime accident lawyers at Arnold & Itkin LLP, a personal injury law firm based in Houston, Texas, understand the complexities and legalities of maritime law and have a successful track record of verdicts and settlements in favor of maritime workers. The law firm provides legal guidance on all aspects of maritime law and the benefits offshore workers are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers' Compensation Act. Arnold & Itkin LLP handles maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama. The firm can be contacted toll free at (866) 222-2606 or through its website.

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The United States Supreme Court has agreed to review a decision by the Ninth Circuit Court of Appeals regarding the availability of workers' compensation benefits under the Outer Continental Shelf Lands Act.

The Court recently granted review of the Ninth Circuit's opinion in Valladolid v. Pacific Operations Offshore, LLP, No. 08-73862 (9th Cir. May 13, 2010).  As discussed here, in that case the Ninth Circuit held that the workers' compensation provision of the Outer Continental Shelf Lands Act applies to any injury resulting from operations on the outer continental shelf, regardless of the location of the injury. The court held further that an injury is “the result of” outer continental shelf operations if there is a substantial nexus between the injury and the operations.

Now, in Pacific Operators [sic] Offshore v. Vallodolid, No. 10-507, the Supreme Court presumably will address disagreement among circuit courts of appeals as to the scope of the Outer Continental Shelf Lands Act.

The case dispute arose when Juan Valladolid was killed on the job as a roustabout for Pacific Operations Offshore, LLP.  While Vallodolid worked primarily on a drilling platform several miles offshore, he was killed by a forklift when working at his employer's onshore oil processing facility.  His death occurred during scrap metal operations that were conducted at the onshore facility once every couple of years.

Valladolid's widow filed a claim for benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), both directly under the LHWCA and via the Outer Continental Shelf Lands Act (OCSLA).  LHWCA benefits are extended, pursuant to the terms of the OCSLA workers' compensation provision, to death or disability occurring as the result of operations conducted on the outer Continental Shelf.

The Benefits Review Board (BRB) upheld an administrative law judge's denial of the OCSLA benefits under the “situs-of-injury” test because Valladolid's injury did not happen within the geographic situs of the outer Continental Shelf.  On appeal, the Ninth Circuit considered the matter at length before concluding that the BRB erred in adopting the situs-of-injury test for determining whether Valladolid's injury was the result of outer continental shelf operations.

Two other circuits had reached conflicting decisions on the issue raised in Vallodolid's case.  In particular, the Third Circuit had rejected the situs-of-injury test in favor of a "but for" test in establishing that an injury occurred "as the result of" operations on the outer continental shelf.  The Fifth Circuit, meanwhile, had adopted a situs-of-injury requirement for OCSLA claims.

The Ninth Circuit addressed the circuit split of authority and ultimately declared that a worker may qualify for benefits under OCSLA so long as the worker's injuries occurred "as the result of operations conducted on the outer continental shelf."

In this instance, the court concluded that Valladolid's injury did not meet that requirement, as he was killed at a facility whose operation was solely a non-maritime activity.  The court thus affirmed the BRB's denial of benefits under the LHWCA.

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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In a submission to the Gulf Coast Claims Facility, oil giant BP recently challenged the payout rules proposed by the GCCF regarding settlements to those harmed by the oil spill that followed the catastrophic loss of the BP Deepwater Horizon drilling platform.  That final payout methodology proposes compensation of twice the losses suffered by damage claimants in 2010, minus payments already received.

Now, BP says the payment methodology offers too much to those who suffered in the Deepwater Horizon's aftermath.  In a filing posted at the close of the GCCF's two-week public comment period regarding the payment scheme, and which is available at the GCCF's website, BP contends that the payout methodology's key assumptions about future losses are unsupported, whether by actual data or analysis.  That is, BP flatly rejects any assumption that Gulf Coast claimants will suffer losses equaling twice the amount suffered through last year.  BP contends that the likely amount of damages for oil spill claimants falls in the range of only 25 to 50 percent of the claimants' 2010 losses.

That notion runs counter to the observations of many others who have filed comments with the GCCF, many of whom challenge the fund's payments as too small and too long in coming.  (As explained here, it is not necessarily in each claimant's best interest to obtain recovery from the GCCF in exchange for waiving rights to future compensation; each victim of the BP Deepwater Horizon tragedy should consult an experienced maritime attorney before making that decision.)

Just a day after BP's filing, on February 17 the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling released the full report of its Chief Counsel, Fred Bartlit.  While the Commission gave its own final report on January 11, one chapter of that report summarized the results of the investigation by Bartlit's team.  According to the Commission, the Chief Counsel's investigative team unearthed and analyzed far more information than could have been included in the Commission's own report, and so the additional report has been released now in order to provide the fullest possible account of the investigation into the causes of the Macondo well blowout.

Among the many findings in the Chief Counsel's report:  BP was aware of problems with Halliburton personnel and work product years before the Deepwater Horizon blowout; a BP engineering reorganization in early 2010 resulted in delays and distractions for the team drilling the Macondo well; BP's own well site leaders accepted facially implausible explanations for problematic test results on the well; and BP engineers failed to fully review the cement design intended for the Macondo well even though they knew the job would be a difficult one and that Halliburton's engineer was not doing "quality work."

BP's most recent attempt to evade full financial responsibility for the widespread harm caused by last April's drilling disaster stands in stark contrast to the Chief Counsel's ultimate determination:  the failures that gave rise to the Macondo blowout all trace back to an overarching failure of management.  According to Bartlit, "Better management of personnel, risk, and communications by BP and its contractors would almost certainly have prevented the blowout.  The Macondo disaster was not inevitable."

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

If you or a family member has suffered a maritime injury, call us toll free at (866) 222-2606 or contact us online. We provide free consultations, and we can advise you on all aspects of maritime law and the benefits you are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

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The Houston trial law firm Arnold & Itkin LLP recovered a verdict of more than $2.4 million handed down on February 17th on behalf of a worker who suffered severe burns while on the job at ExxonMobil’s refinery in Baytown, Texas.

Attorneys Kurt Arnold and Paul Skrabanek of Arnold & Itkin represented the injured refinery worker in a jury trial heard in Texas state district court in Houston.

The firm's client suffered burns over 25 percent of his body in mid-2008 as a result of a flash fire from hot oil that poured out of a pipe bleeder valve and ignited.  The injured man was working on an elevated platform and could not get to the ground because the exit was blocked by the fire.

At trial, attorneys Arnold and Skrabanek successfully argued that the pipe system, designed by GDS Engineers Inc. and SNC-Lavalin Engineers & Constructors Inc., was faulty, and that the oil should have been pumped in a closed pipe since it was above its autoignition temperature and represented a fire hazard.  Evidence also showed that the platform on which the firm's client was working violated safety regulations by not incorporating two paths to enter and exit the platform.

Attorney Arnold admonished that the firm's client “is a dedicated, hard worker who was severely hurt just trying to do his job."  In addition, Arnold said, “GDS Engineers and SNC-Lavalin could have prevented this terrible accident by taking basic steps to design the platform and equipment to account for these obvious hazards.”

GDS Engineers and SNC-Lavalin insisted on a trial, and jurors awarded a total of $2.434 million after finding that the companies’ negligence was the cause of the refinery worker's injuries.  The total award includes $1.84 million for pain and mental anguish, $380,000 for physical impairment and disfigurement, $146,000 in medical expenses and $68,000 in lost wages.

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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Wheeler v. Newport News Shipbuilding and Dry Dock Co., No. 10-1164 (4th Cir. February 15, 2011) (Agee, J.)

The United States Court of Appeals for the Fourth Circuit recently considered the meaning and scope of the term "compensation" as used in § 22 of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §§ 901-950 (LHWCA).  As pertinent, § 22 effectively sets a one-year statute of limitations for reopening a compensation order based on a change in conditions or a mistake in an underlying factual determination, with the limitations period keyed to the date of the last payment of "compensation."

Stephanie Wheeler was awarded scheduled permanent partial disability compensation after she was injured while working for Newport News Shipbuilding and Dry Dock Company.  By late 2003 Newport News had completed compensation payments for Wheeler's scheduled permanent partial disability.

Wheeler continued to obtain medical treatment, which Newport News authorized and paid.

In the meantime, in late 2007 Wheeler requested modification of her permanent partial disability award pursuant to LHWCA § 22.  Her request was filed within one year of when Newport News last paid medical benefits on her behalf, but more than four years after the Benefits Review Board's last 2003 order denying her claim for permanent total disability compensation.

An administrative law judge rejected Wheeler's request as time-barred because it was not filed within one year "after the date of the last payment of compensation" or "after the rejection of a claim," as set forth in § 22.  The ALJ rejected Wheeler's argument that the term "compensation" as used in § 22 of the Act included the voluntary payment by an employer of a claimant's medical expenses.

The Benefits Review Board affirmed.

The Fourth Circuit affirmed when Wheeler petitioned for review, holding that "compensation" as used in LHWCA § 22 did not include the payment of medical benefits.

In pertinent part, § 22 of the Act provides:

Upon his own initiative, or upon the application of any party in interest[,] . . . on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case . . . [and] issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation.

33 U.S.C. § 922 (emphasis added).  Thus for purposes of Wheeler's case, the court explained, if "compensation" included the payment of medical benefits, then Wheeler's claim for modification was arguably timely; if it did not, then her claim for benefits was properly denied by the Board as time-barred.

The court determined that the meaning of "compensation" as set out in § 22 was ambiguous, with the result that the court sought to construe the statutory language directly, in a way consistent with the statutory scheme and Congressional intent.

The context of Wheeler's case required that the court interpret the term "compensation" in light of the extraordinarily broad modification procedure afforded under § 22 while at the same time recognizing that the section imposed a one-year statute of limitations that had to be given effect.  Examining relevant legislative history, the purposes of LHWCA, and the need for consistency in the treatment of LHWCA provisions pertaining to payment of medical services, the court ultimately determined that interpreting "payment of compensation" in § 22 to exclude an employer's payment of medical benefits was most harmonious with the purpose of both the statute's limitations period and LHWCA as a whole.

The court noted that it had enforced the § 22 limitations period in other instances, even where the result was adverse to the benefits claimant.  It was simply the case that limitations periods sometimes produced harsh results, and the court refused to interpret § 22 in a way that would effectively write the limitations period out of the statute.

The court thus concluded that  the term "compensation" in 33 U.S.C. § 922 did not include voluntary payments by an employer for medical services provided to an employee.  As such, the payments of such services did not extend the § 22 limitations period.  Because Wheeler did not file her request for modification within the one year period set forth in § 22, it was time-barred and the decision of the Board had to be affirmed.

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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The Gulf Coast Incident Management Team last week released a report issued by its Operational Science Advisory Team (OSAT-2), a group tasked to provide information and advice about the status of residual oil along the Gulf of Mexico shoreline environment in the wake of the 2010 Deepwater Horizon catastrophe.

The advisory team focused on four case study beach areas with representative sensitive habitats that suffered oil contamination in Florida, Alabama, Mississippi and Louisiana.

Key findings in the OSAT-2 report include:

• Calculated human health effects from short and long-term exposures from remaining oil fall below EPA benchmarks for concern.
• There exists a minimal risk of oil leaching into groundwater from buried oil due to the combined effects of weathering, biodegradation, and the location of buried oil.
• Aggressive cleanup beyond established standards may likely threaten overall aquatic and wildlife resources.

Thus the analysis cautions against extended cleanup operations beyond existing guidelines, all with the idea of avoiding additional harm from cleanup efforts directed toward removing diminishing amounts of oil.

The report's recommendation to avoid additional cleanup efforts beyond amounts established in current guidelines raises concerns among some who fear that cleanup operations might be abandoned before they're complete, essentially letting BP off the hook prematurely and threatening the health of both the Gulf Coast beach environment and those who live, work, and visit there.

According to media reports, Louisiana chemist and environmental consultant Wilma Subra cautioned that people and animals could remain exposed to harmful toxins if the beach cleanup effort doesn't go far enough to be complete.

Likewise, a local mayor raised beach communities' concerns about being left "high and dry."  Mayor Tony Kennon, of Orange Beach, Alabama, objected to what he perceived as a sign that BP's cleanup operations were going to end before the task was properly completed.  Mayor Kennon characterized the report as a "get out of jail free" card for BP despite the company's pledge to "clean up the mess."

The consensus does seem to be that the OSAT-2 report signals the encroaching end of cleanup operations, even as those involved in the operations and those persons most affected by the oil spill continue to disagree on whether the cleanup effort has run its full course.

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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Responding to oil industry criticism of perceived delays in approvals of deep-water drilling permits after the Obama administration's lifting of a deepwater drilling ban several months ago, the director of the Bureau of Ocean Energy Management, Regulation and Enforcement recently made it known that a primary stalling point is the availability of systems to contain another deepwater blowout in the Gulf of Mexico.

BOEMRE director Michael Bromwich told oil industry executives in a letter, "The most critical missing piece in the process of approving applications for permits to drill in deep water is the demonstration of well control and subsea containment capability."  Bromwich further characterized blowout control and containment systems as critical to moving forward with safe and responsible deepwater drilling activities.

Exxon Mobile is leading a coalition of companies working on a system intended to perform crude oil containment and collection as deep as 10,000 feet below the surface of the ocean.  According to the company, its group is focusing on finalizing an interim design to be put into use in the near-term, while a final and expanded containment system would remain in the works for deployment later.

According to one media report, the Exxon-Mobile collaboration, known as Marine Well Containment Co., represents but one effort toward development of a new containment system that would satisfy federal government requirements.  The work by MWCC is aiming toward a system that would contain 100,000 barrels per day using a variety of components, including equipment derived from that utilized by BP in responding to the damaged Deepwater Horizon Macondo well in 2010.  Another effort is being carried out by Helix Energy Solutions Group.  Helix indicated to media that its containment system is ready to be deployed, with a capacity of handling up to 55,000 barrels per day at depths of as much as 8,000 feet.

While the delay in issuance of deepwater drilling permits reportedly is causing some economic difficulties for oil companies large and small, caution remains appropriate in light of the horrific consequences of the tragic loss of the BP Deepwater Horizon, resulting in the largest accidental oil spill in American history.

If you or a family member has suffered a maritime injury, call us toll free at (866) 222-2606 or contact us online. We provide free consultations, and we can advise you on all aspects of maritime law and the benefits you are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

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

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On February 2nd, Federal Judge Carl J. Barbier of the United States District Court for the Eastern District of Louisiana granted in part Plaintiffs' Motion to Supervise Ex Parte Communications with Putative Class filed in December by Plaintiffs' Liaison Counsel in the ongoing BP Deepwater Horizon multi-district litigation.

The Plaintiffs' motion contended that the Gulf Coast Claims Facility (GCCF), its administrator Ken Feinberg, and Feinberg's law firm Feinberg Rozen LLP, were not independent decisionmakers as to claims filed by oil spill victims under the Oil Pollution Act of 1990.  The motion challenged the notion that putative class members were being asked to, among other things:  execute a full release of all defendants, not just BP; release claims for punitive damages and other relief not recognized by the GCCF; and release the claims of spouses, minors, and their business interests.  This, despite the fact that BP and GCCF had, according to the motion, confusingly represented the GCCF as "independent" and urged putative class members not to retain counsel.

Judge Barbieri rejected BP's argument that the GCCF, Mr. Feinberg, and Feinberg Rozen, LLP were fully "independent" of BP.  The Court found instead that BP had created a hybrid entity, rather than one that was fully independent of BP.   In particular, the Court said, while BP may have delegated to Mr. Feinberg and the GCCF independence in the evaluation and payment of individual claims, many other facts supported a finding that the GCCF and Mr. Feinberg were not completely “neutral” or independent of.

Concluding that the Court had authority to supervise or control certain communications with potential class members, and that such supervision or control did not run afoul of pertinent First Amendment concerns, Judge Barbier ordered that BP, through its agents Ken Feinberg, Feinberg Rozen LLP, and the Gulf Coast Claims Facility, and any of their representatives, in any of their communications with claimants, shall:

1. Refrain from contacting directly any claimant that they know or reasonably should know is represented by counsel, whether or not said claimant has filed a lawsuit or formal claim;
2. Refrain from referring to the GCCF, Ken Feinberg, or Feinberg Rozen, LLP (or their representatives), as “neutral” or completely “independent” from BP. It should be clearly disclosed in all communications, whether written or oral, that said parties are acting for and on behalf of BP in fulfilling its statutory obligations as the “responsible party” under the Oil Pollution Act of 1990.
3. Begin any communication with a putative class member with the statement that the individual has a right to consult with an attorney of his/her own choosing prior to accepting any settlement or signing a release of legal rights.
4. Refrain from giving or purporting to give legal advice to unrepresented claimants, including advising that claimants should not hire a lawyer.
5. Fully disclose to claimants their options under OPA if they do not accept a final payment, including filing a claim in the pending multidistrict litigation.
6. Advise claimants that the “pro bono” attorneys and “community representatives” retained to assist GCCF claimants are being compensated directly or indirectly by BP.

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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Texas maritime accident lawyer Kurt Arnold supports proposed federal legislation that would remove liability caps for negligent oil companies and protect oil industry whistleblowers.

“The only ones who would be opposed to these new rules are oil companies that put profits ahead of the health and safety of their offshore workers and care little about the businesses and residents of the Gulf Coast,” said Arnold, a partner in the Houston, Texas, maritime law firm of Arnold & Itkin LLP.

“Those oil companies need to understand that the Deepwater Horizon disaster changed everything. Offshore workers, Gulf Coast residents and lawmakers aren’t going to put up with careless oil drilling practices anymore,” Arnold said.

Members of the U.S. House of Representatives’ Natural Resources Committee introduced the bill in late January. Among other things, the reforms reflect recommendations from the final report issued January 11 by the National Commission on BP Deepwater Horizon Oil Spill and Offshore Drilling, including:

• Establishing unlimited liability for oil companies for damages that result from an oil spill (the current federal cap is $75 million);
• Strengthening safety oversight by creating a dedicated funding stream to federal agencies that are in charge of regulating offshore oil drilling;
• Denying drilling permits or offshore oil leases to companies with a history of worker safety violations and fines; and
• Providing whistleblower protection for workers who are involved with offshore oil and gas drilling, exploration and production. Federal law currently provides no protection for oil drilling industry whistleblowers.

“As we’ve discovered, many offshore oil workers had concerns about safety issues on the Deepwater Horizon before the explosion occurred, but they didn’t want to come forward because they feared retaliation,” said Jason Itkin, an experienced offshore worker injury attorney and a co-founding partner of Arnold & Itkin.

“If these whistleblower protections had been in place before the Deepwater Horizon event occurred, it could have possibly prevented the physical, emotional and financial losses that have affected countless offshore oil workers, commercial fishermen, tourism businesses and others throughout the Gulf Coast region,” Itkin said.

If you or a family member has suffered a maritime injury, call us toll free at (866) 222-2606 or contact us online. We provide free consultations, and we can advise you on all aspects of maritime law and the benefits you are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

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Gulf Coast Claims Facility administrator Kenneth Feinberg recently released a report that he commissioned to predict the Gulf of Mexico's recovery in the aftermath of the now-infamous BP Deepwater Horizon catastrophe – the largest marine oil spill in American history.  The report, prepared by Dr. Wes Tunnell of the Harte Research Institute (HRI) for Gulf of Mexico Studies at Texas A&M University-Corpus Christi, estimates that certain targeted commercial fish and other species in the Gulf region will fully recover from the horrendous disaster in 2012, with a 30 percent recovery by the end of this year and full recovery by the end of next year.

Dr. Tunnell's report is particularly important because it is a key component of the GCCF's scheme to issue final payments to businesses and individuals who have suffered damages because of the Deepwater Horizon oil spill.

According to Feinberg, and as described in more detail in the GCCF's proposed "Final Payment Methodology," most oil spill victims will be allocated lump-sum payments representing twice their documented damages for 2010.  That amount rises to four times actual documented losses for oystermen, based on concerns that oyster bed recovery may take up to ten years.

Prompt monetary relief to oil spill victims is a commendable goal, but it is not necessarily in each claimant's best interest to obtain recovery from the GCCF in exchange for waiving rights to future compensation.  Each victim of the BP Deepwater Horizon tragedy should consult an experienced maritime attorney before making that decision.

This is particularly true in light of the ongoing uncertainty about the Gulf's recovery.  The GCCF report is itself replete with cautions and caveats about the unpredictable nature of maritime oil spill recovery processes.

It is noteworthy, as well, that even as Feinberg released the report prepared by Dr. Tunnell, media reports reflected that plaintiffs' counsel on the Deepwater Horizon multidistrict litigation steering committee have challenged the report's conclusion on the speed of the Gulf's recovery as contrary to a majority of expert opinions to date.

In addition, Feinberg has been criticized for not being independent of BP in the claims administration process, as exemplified in requests by state attorneys general seeking federal court supervision over aspects of the GCCF claims process.

Still others wonder whether the Gulf's recovery could experience a dramatic setback, as happened in the case of Pacific herring after the Exxon Valdez oil spill in Alaska.  In that case, fishermen were able to continue harvests of herring for three years after the oil spill, when the herring population suddenly crashed and the fish essentially disappeared from Prince William Sound.

In the case of the Gulf, only time will tell the true extent of the impact of the Deepwater Horizon oil spill on the maritime environment.

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If you have questions about a maritime injury claim, 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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Deering v. National Maintenance & Repair, Inc., No. 10-1716 (7th Cir. Dec. 2, 2010)

Vincent Deering was injured while piloting a towboat to move barges at a drydock facility operated by his employer, National Maintenance & Repair, Inc.  According to Deering, he warned his supervisor that a defect in the towboat's steering mechanism made it unsafe to perform the maneuvers he was told to carry out while the Mississippi River was at flood levels.  Deering's supervisor told him to continue anyway.

Deering's tow vessel became wedged against the barge it was towing.  When another boat approached to assist at excessive speed, its captain had to throw its engines into reverse to avert a collision.  Deering's boat was swamped, quickly sank, and Deering was swept underneath the barge.

Deering sued National under the Jones Act, which provides that a seaman injured in the course of employment may elect to bring a civil action at law, with the right of trial by jury, against the employer.

National petitioned for relief in federal district court pursuant to the Limitation of Liability Act.  Where that act applies, it limits a shipowner's liability to the ship's value.

When Deering refiled his Jones Act and general admiralty law claims in district court after the district court ordered his state action stayed, National counterclaimed for recovery of damages of $800,000 for the value of the lost towboat.  According to National, Deering's negligence was at least a partial cause of the towboat's sinking.

The district court granted Deering's motion to dismiss the counterclaim on the ground that counterclaims in the nature of setoffs to Jones Act claims are forbidden.

The Seventh Circuit affirmed.  The court noted that suits by shipowners against employees for property damage are extremely rare, so that as a practical matter they generally occur only where a shipowner seeks a setoff against a seaman's personal injury claim.

The question was whether such a setoff was permissible.  The court concluded that under the facts of this dispute it was not.

The Federal Employers' Liability Act, which is incorporated into the Jones Act by reference, bars "any device whatsoever" by which a common carrier seeks to exempt itself from liability created under the act.  Here, the sole purpose of National's counterclaim had to be to exempt itself from liability to Deering.  That plainly was a device, the purpose or intent of which was to enable to shipowner to exempt itself from Jones Act liability to Deering.

National relied on case authority from the Fifth Circuit to argue for a different result, but the court distinguished that case and, rather than creating a conflict in authority, held specifically that the "one-two punch thrown by National by combining a property-damage counterclaim with a limitation of liability in order to wipe out a substantial personal injury claim under the Jones Act is a liability-exempting device forbidden by the Act."  The court left for future consideration the issue whether a shipowner who does not seek to limit his liability should nevertheless be forbidden to set off damages for negligent damage to property against a Jones Act claim.

In the meantime, the district court's dismissal of National's counterclaim was affirmed.

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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