Seaman's Untimely Jones Act Claims Resulted In Dismissal

Flores v. Coastal Marine Equipment, Inc., 10-CV-107 (S.D. Miss. February 3, 2011) (Guirola, Jr., Chief District Judge)

Luis Beltran Flores filed suit against Coastal Marine Equipment in March 2010, asserting claims for product liability, negligence, negligence per se, misrepresentation, and gross negligence pursuant to the Jones Act, general maritime law, and other applicable state and federal laws.  Flores maintained that he was injured by a defective winch, made and sold by Coastal, while he was working aboard the M/V Captain Linwood in early 2006.

Flores had filed a previous action in Texas state court, but that suit was dismissed for lack of personal jurisdiction.  Flores then sued in federal district court within thirty days.  Flores argued that the statute of limitations on his claims thus had to be tolled under 28 U.S.C. § 1367(d).

The district court disagreed and instead granted Coastal's motion to dismiss on the ground that Flores's complaint was barred by the applicable statutes of limitations.

The court observed that the maritime tort statute of limitations set out in 46 U.S.C. § 30106 requires that a civil action for damages for personal injury or death arising out of a maritime tort be brought within three years after the cause of action arose.  The Jones Act adopts the same statute of limitations as applied to lawsuits filed under the Federal Employees' Liability Act, 45 U.S.C. § 56, which is also three years.  Likewise, to the extent Flores alleged claims under Mississippi state law, that state's limitations period on products liability, misrepresentation, and negligence claims was three years.

Flores filed suit in federal district court more than four years after his injury.  Thus his claims were barred as untimely unless he could establish that limitations were tolled.

The sole argument that Flores had made in that regard invoked 28 U.S.C. § 1367(d).  As explained by the district court, that section "provides that state law claims that are before a federal court pursuant to the court’s supplemental jurisdiction are tolled during the pendency of the federal lawsuit and for a period of thirty days after the claims are dismissed."

The court admonished that § 1367(d) did not apply to salvage Flores's untimely claims.  The section did not govern claims originally filed in state court and subsequently dismissed, but rather operates only to toll supplemental state law claims that are originally filed in federal court.

Because § 1367(d) did not toll the limitations periods applicable to Flores's suit, his claims had expired and the action had to be dismissed.

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

The lawyers at Arnold & Itkin LLP are aggressive maritime accident trial attorneys who understand the complexities and legalities of maritime law.  Our law firm secured more than $100 million in verdicts or settlements for our clients in 2009.

OSHA's Latest SHIPS Advises Shipyard Employers How To Provide Better Protection Against Rigging Hazards

The Occupational Safety & Health Administration recently released a new guidesheet with information and advice for shipyard employers whose workforce includes all-important riggers.

Riggers prepare ships' equipment and related items for lifting by cranes, hoists, and other machinery.  Given the many heavy items routinely lifted and moved in the maritime shipyard environment, it's critical that riggers perform their job in a way that avoids exposing themselves and others to potentially life-threatening hazards.  Improper lifts and rigging failures have injured maritime workers and cost lives.

As noted in the SHIPS, the federal Occupational Safety and Health Act requires that employers meet safety and health standards and regulations issued by OSHA or by a state that has an OSHA-approved state plan.  Employers also have a general duty to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm.

Thus, OSHA's new guidesheet emphasizes safe work practices while offering information to help keep riggers and their co-workers out of harm's way.

The SHIPS addresses in detail rigging hazards and best practices in the rigging process; discusses a variety of hazards specific to riggers and their co-workers, such as falls, electrical shocks, and several types of traumatic/acute injury; and reviews case histories as examples of what can go wrong in the rigging process, with analysis of each case, pictures illustrating unsafe practices, and recommended preventive measures that can help employers and their riggers avoid repeating others' injury-causing mistakes.

The SHIPS also provides links to computer-animated videos depicting shipyard accidents and identifying errors along the way.  Employers also can find links to a variety of mini-posters for placement at jobsites, each highlighting a rigger safety practice as an important reminder to employees who work in the hazardous maritime shipyard environment.

The maritime personal injury attorneys at Arnold & Itkin LLP encourage shipyard employers to review the new SHIPS guidesheet in light of their current practices, and to work with their riggers to ensure that they are fully educated about the safety risks they face daily.

For a free consultation on a possible maritime injury claim, call our maritime accident lawyers toll free at (877) 632-8168 or contact us online. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

We are skilled maritime accident trial lawyers and aggressive offshore injury attorneys for injured shipyard workers. We represent maritime victims in accident, injury and wrongful death claims. Our law firm secured more than $100 million in verdicts or settlements for our clients in 2009.

Offshore Drilling Safety Reforms Still Needed

Attorneys Kurt Arnold and Jason Itkin of the Houston maritime law firm, Arnold & Itkin LLP, say the federal government and oil industry have been too slow to act on improving offshore worker safety.

One year after the deadly BP Deepwater Horizon oil rig fire and explosion, reforms are still needed to provide better safety for offshore workers, Houston maritime injury attorneys Kurt Arnold and Jason Itkin recently observed.

“On the whole, I don’t think you can say that offshore workers are much safer today than they were one year ago,” said Arnold, speaking on the anniversary of the April 20, 2010, Deepwater Horizon disaster. “There are still many important steps that need to be taken, especially with the design, inspection and maintenance of blowout preventers.”

According to the Houston Chronicle, a four-month investigation concluded that one cause of the disaster was the failure of a blowout preventer to cut through a drill pipe that had been dislodged during the incident, which would have sealed off the leak.

A Shell Oil Co. engineer told the newspaper that one way to address such a failure would be to require that blowout preventers have at least two sets of pipe-cutting components, or shear rams.

“We still have no regulation requiring that blowout preventers have multiple shear rams that would help to prevent another tragedy like the Deepwater Horizon,” Itkin said. “The oil rigs in the Gulf and other American waters clearly are not as safe as they could be.”

An article in a recent issue of the Shreveport Times pointed out that, despite more than 150 bills being introduced in Congress since last April to improve oil rig safety and enhance government oversight of the offshore oil drilling industry, no major legislation had yet passed.

“There has been a lot of talk about protecting offshore workers, but unfortunately, the action hasn’t matched the rhetoric,” Itkin said.

In the year since the Deepwater Horizon disaster, the Houston maritime accident lawyers have worked to protect the rights of injured Transocean workers and Gulf Coast businesses seeking redress for injuries caused by the Gulf oil spill.

Arnold said that he hopes new requirements for blowout preventers and other safety reforms are enacted before the next anniversary of the BP Deepwater Horizon disaster.

“The bottom line is that these maritime workers are doing a job that is vital to our nation's energy needs and we cannot have them unnecessarily risking their health and safety,” Arnold said. “We owe them a safer work environment.”

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, use the form on this page to 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.

Cruise Ship Worker's Injury Claims Subject To Foreign Arbitration

Salinas v. Carnival Corporation, Case No. 10-20910 (S.D. Fla. March 28, 2011) (Martinez, J.)

Plaintiff Marco Esteban Valdivia Salinas, a seaman from Nicaragua, was injured in 2007 while working aboard the M/S Fascination, which flew a Bahamian flag.  Then, in 2008 he suffered another injury while working aboard the M/V Valor, which flew a Panamanian flag.

Based on his injuries, Salinas sought recovery from Carnival Cruise Lines in state court on alleged causes of action for Jones Act negligence and unseaworthiness.

Carnival removed the case to the United States District Court for the Southern District of Florida pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and its implementing legislation, 9 U.S.C. § 202 et seq.

Before his injuries, Salinas had signed a Seafarer’s Agreement with Carnival which governed the parties’ employment relationship.  Both agreements contained three pertinent provisions:  an arbitration clause under which any disputes were to be referred to arbitration under the American Arbitration Association/Internal Centre for Dispute Resolution International Rules; a choice-of-law provision which declared that all disputes would be resolved in accordance with the laws of the flag of the vessel on which Seafarer was assigned; and a severability clause.

Citing the terms of the Seafarer's Agreement, Carnival moved to compel arbitration and for dismissal of Salinas's lawsuit.

The federal district court noted that its inquiry on a motion to compel arbitration under the Convention Act was very limited.  It first had to decide whether four jurisdictional requirements were met, and then ask whether there was an affirmative defense under the Convention that would bar arbitration.

Here, it was clear that the four jurisdictional requirements were met:  (1) it was undisputed that the written arbitration agreement fell within the scope of the Convention; (2) the agreement provided for arbitration in the ships’ flag states, Panama and the Bahamas, which were signatories to the Convention; (3) the agreement arose out of a legal relationship that was considered commercial; and (4) a party to it was not an American citizen.

The Court therefore considered the affirmative defenses available under the Convention.  One of those affirmative defenses provided that recognition and enforcement of an arbitral award could be refused if the competent authority in the country where recognition and enforcement was sought found that recognition or enforcement of the award would be contrary to the public policy of that country.

Here, Salinas argued that the "prospective waiver doctrine" barred enforcement of the Seafarer's Agreement arbitration provision as contrary to public policy.

The prospective waiver doctrine derives from a 1985 Supreme Court decision in which the Court observed that an agreement would be against public policy where it included choice-of-forum and choice-of-law clauses that operated in tandem to prospectively waive a party's right to pursue statutory remedies.  Later, the Eleventh Circuit held that because an arbitration clause in dispute specified that the arbitrator had to apply Panamanian law, the arbitration clause effectively waived and foreclosed the plaintiff’s rights under the Seaman’s Wage Act.  The Eleventh Circuit focused on choice of law as the critical issue, asking what law would apply in the arbitral forum.

The Supreme Court instructed that arbitration clauses should be upheld where it is evident that either U.S. law definitely will be applied, or if there is a possibility that it might apply and there will be later review.  The federal district court in Salinas's case agreed with other courts in the district that applied the same reasoning to Jones Act claims.

Thus, the court said, because the arbitration clause at issue here contained a choice-of-law provision that foreclosed application of U.S. law, it was void.

Carnival argued, though, that the district court could sever out the choice-of-law provision from the Seafarer's Agreement and compel arbitration of Salinas's claims with the law to be determined by the arbitrator.

The court noted that it is appropriate to sever stand alone choice-of-law provisions in agreements that expressly provide for the severance of unenforceable provisions.

In this instance, if the court severed the choice-of-law provision, there was a possibility that U.S. law might apply.  Salinas’s claims for unseaworthiness were based in common law, rather than United States statutory law. Thus, he would have a claim to pursue through arbitration even if the arbitrator did not apply U.S. law.  The federal district court would retain jurisdiction to enforce the award and, by doing so, retain jurisdiction to review whether or not the arbitrator applied U.S. law to Salinas's Jones Act claim. If the arbitrator did not apply U.S. law and if Salinas also did not prevail on his unseaworthiness claim, it would still be possible for him to obtain later review in the event that Carnival tried to argue otherwise when he later re-raised his statutory claims.

The federal district court therefore declared the choice-of-law provision in the parties’ agreement void and severed, granted Carnival's motion to dismiss and to compel arbitration, and retained jurisdiction to enforce the arbitral award.

For a free consultation, call the maritime accident lawyers at Arnold & Itkin LLP toll free at (877) 632-8168 or contact us online. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

Deepwater Horizon's Legacy Should Be Safer Offshore Working Conditions

Houston maritime attorney Jason Itkin notes that the effects of the BP Deepwater Horizon oil spill are still being felt by many communities and workers along the Gulf Coast as the first anniversary of the disaster approaches.

“Workers, families and small businesses across the Gulf are still trying to recover physically, financially and emotionally from the BP oil spill,” said Itkin, a partner in Arnold & Itkin LLP, a Houston, Texas law firm that represents injured offshore workers and those harmed by the BP Deepwater Horizon disaster. “Some still need help getting back on their feet and receiving fair compensation for their losses.”

A recent study in the New England Journal of Medicine said the full environmental, economic and health effects of the BP Deepwater Horizon oil spill remain unclear a year after the disaster in the Gulf of Mexico.

The study said the catastrophic accident does underscore the vulnerability of humans and ecosystems to environmental changes such as oil spills.

“It’s difficult to quantify the effects of the disaster when they are still rippling through communities across the Gulf,” Itkin said. “For that reason, we think that quick payouts often undervalue the actual cost of the losses and do more to relieve the oil companies of liability than to help workers and small businesses.”

As deepwater drilling resumes in the Gulf of Mexico, Houston maritime accident attorney Kurt Arnold said it’s important to keep pressing oil and gas exploration companies to focus on safer drilling practices and precautions to protect offshore workers and prevent loss of life.

“We should never forget that 11 workers lost their lives in the BP Deepwater Horizon and consider the lasting impact that maritime disaster had on the families of offshore workers,” said Arnold, a partner in Arnold & Itkin LLP.

“The subsequent investigation has shown that the loss of life was preventable if BP had focused on safety," he said. "We will keep asking if enough has been done to protect offshore workers and prevent another disaster.

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.

Protestors Attend BP's 2011 Annual General Meeting

On April 14, BP held its first annual general meeting since the horrific loss of the drilling rig BP Deepwater Horizon in April of last year.

While BP portrays the last twelve months as "A Year of Change" in a corporate publicity film, media reports describe how the company faced angry protestors at its annual general meeting in London.

The protestors included Gulf Coast residents who remain upset with the company's handling of the Deepwater Horizon accident and post-accident reparations, together with shareholders unhappy with the high pay received by BP executives in spite of the disaster.  The vocal BP opponents also included protestors who challenged the company's involvement in controversial petroleum projects in other parts of the world.

Ahead of the scheduled meeting, shareholders representing some 60 percent of voting BP shares reportedly voted against re-election of Sir William Castell as head of BP's safety committee.

Some protesters apparently were barred from entering the annual general meeting, including Texas resident Diane Wilson, whose family has been in the Gulf Coast fishing industry for generations.  After the meeting began, a statement reportedly was read on behalf of Keith Jones, the father of Gordon Jones, one of the rig workers killed during the Deepwater Horizon catastrophe.  The unscheduled reading went forward despite BP chairman Carl-Henric Svanberg's attempt to stifle the speaker.  In his statement Mr. Jones accused BP of losing while "rolling the dice with my son's life."

Byron Encalade, president of the Louisiana Oystermen Association, told the media that he traveled to the London meeting because thousands of Gulf Coast damages claims remained unpaid, reflecting a failure of the claims process for fishing communities on the Gulf Coast.

The protests by American Gulf Coast residents and fishermen, trade unionists in the UK, and environmentalists lasted several hours.

Financial reports indicate that BP's share price remains 30 percent below its level of April 2010, reflecting an enormous drop in value even as the company suffers its first annual loss in almost 20 years.

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.

If you or a loved one have been injured in an oil rig or other maritime accident, our goal is to ensure you get the compensation you deserve. We have the expertise to handle maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama.  Contact us using the form on this page if you have any questions regarding a possible maritime injury claim, or call us toll-free at 866-222-2606.

Senate Bill Resurfaces With Proposed LHWCA Amendments

Approximately 500,000 workers are eligible for benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), according to the United States Department of Labor.  The Department administers LHWCA benefits via the Division of Longshore and Harbor Workers' Compensation, a component of the Office of Workers' Compensation Programs.

Benefits for eligible workers include medical, surgical, and hospital services; disability benefits; rehabilitation services; and death benefits for surviving spouses and dependents.

Recently, Senator John Isakson (R-GA) re-introduced legislation that would work sweeping changes in the LHWCA benefits system.  Senator Isakson has unsuccessfully introduced such legislation over the last several years.

Among other changes, as currently drafted Senate Bill 669, entitled "Longshore and Harbor Workers' Compensation Act Amendments of 2011," would substantially change the scheme for providing medical services to an injured or sick worker by allowing a carrier to designate one or more participating networks and/or one or more health care panels that an injured employee would have to use in order to receive medical benefits.  As presently enacted, in contrast, LHWCA allows an injured or sick worker to be treated by the physician of his or her choice, so long as the physician is authorized by the Secretary of Labor.

The bill also would re-fashion available disability compensation by changing compensation rates from 66 2/3 percent of the average weekly wages to 75 percent of the "spendable earnings," where "spendable earnings" reflects the worker's average weekly wage reduced by federal, state, and local taxes based on standard deductions and the employee's domicile at the time of injury, and by amounts that would have been withheld from wages under the federal tax code.

The bill additionally would establish a statutory rebuttal of the presumption of the validity of an injured employee's covered claim in cases involving drugs or alcohol, not only where the employee was found to be under the influence, but also where the employee refused or did not "make himself available for" a drug or alcohol test.  It also would create an "affirmative and complete defense" against an employee claim if the employee "or employee's agent" knowingly makes any false statement deemed material to obtaining benefits.

Again, this represents but a portion of the changes contained in the bill now under review.  It remains to be seen whether Senate Bill 669 will make it out of the Committee on Health, Education, Labor, and Pensions, where it was referred on March 29.

The text of the proposed act is available here.

For a free consultation, call a maritime accident lawyer at Arnold & Itkin LLP toll free at (877) 632-8168 or contact us using the form on this page. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

Inadequate Crew And Tools Created Unsafe Method Of Work On Unseaworthy Government Vessel

Drapela v. United States, No. 10-40434 (5th Cir. March 22, 2011) (per curiam)
A vessel was unseaworthy for purposes of an injured crew member's personal injury claims where he was provided inadequate tools to single-handedly unjam 165 rusted cargo fasteners as part of an effort to make the government-owned vessel ready for activation.

In a recent unpublished decision, the United States Court of Appeals for the Fifth Circuit considered a district court's conclusion that a government-owned vessel was unseaworthy due to inadequate crew and inadequate tools available to a crew member assigned to perform an arduous task.

The M/V Cape Victory was a Ready Reserve Force vessel under the control of the federal Maritime Administration moored in Beaumont, Texas.  As such, the vessel was kept in "ready reserve" and was expected to be ready to sail within a few days of activation in times of need.

Frank Drapela was the permanent bosun of the M/V Cape Victory.  In early 2007, Drapela and the vessel's chief mate and at-sea captain, Kevin Brooks, gave credence to rumors around the port that the ship was about to be activated.

To prepare the vessel, Brooks assigned Drapela to free up 165 corroded deckside D-rings used for tying down cargo.  Using a sledgehammer, a welding rod, and a crowbar, over the course of three days Drapela variously pounded and pried the D-rings until they were free.

On the morning of the fourth day, Drapela awoke in severe pain.  His treating physician later testified that the stresses Drapela's body endured while he was pounding with the sledgehammer resulted in problems in his spine.

Drapela filed suit alleging Jones Act negligence and unseaworthiness under general maritime law.  Upon trial, the United States District Court for the Eastern District of Texas rejected the Jones Act claims, but it found the M/V Cape Victory unseaworthy.  This was because the government did not provide an adequate crew of sufficient manpower to perform the tasks required, and the vessel was unfit because inadequate tools were made available to Drapela to free the 165 frozen D-rings within the time he thought he had to complete the work.  Thus "the enormity of the task and the inadequacy of the tools caused Drapela's spine injuries," the district court concluded.

The Fifth Circuit agreed, interpreting the district court's findings as a more general conclusion that Chief Mate Brooks chose an unsafe method of work to free the D-rings, which rendered the vessel unseaworthy and caused Drapela's injuries.

The court concluded that the district court's findings were supported by the record and were not clearly erroneous, namely that the assignment to Drapela to physically free up 165 D-rings in a limited period of time was unreasonably difficult for one person to perform. The record also supported the findings that the tools provided to Drapela to perform the task were inadequate and that the method chosen to perform the task was unsafe, the court wrote.

Because each of those findings supported the district court’s conclusion that the vessel was unseaworthy and the unseaworthy condition caused the plaintiff’s injury, the court of appeals affirmed the judgment in favor of Drapela.

For a free consultation, call the maritime accident lawyers at Arnold & Itkin LLP toll free at (877) 632-8168 or contact us online. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

We are skilled maritime accident trial lawyers and aggressive offshore injury attorneys for injured shipyard workers. We represent maritime victims in accident, injury and wrongful death claims. Our law firm secured more than $100 million in verdicts or settlements for our clients in 2009

Jones Act Employer Found Vicariously Liable For Death Of Seaman Accidentally Shot By Fellow Crew Member

Beech v. Hercules Drilling Co., LLC, No. 10-146 (E.D. La. March 24, 2011) (Barbier, J.)

The United States District Court for the Eastern District of Louisiana recently considered whether a maritime employer was liable for the accidental death of a Jones Act seaman who was inadvertently shot by a fellow crewmember while both were serving on a vessel in navigation under the Act.

Keith Beech worked for Hercules Drilling Company, LLC, as a crane operator on one of the company’s jack-up drilling vessels.  The rig was staffed with a four-man crew while awaiting a contract.

Driller Michael Cosenza unintentionally violated a well-publicized Hercules policy banning possession of firearms on company premises when he discovered that he had left a small handgun in a pocket of some clothing that he had brought on board.

Cosenza was on the night shift, during which he was expected to spend most of his shift inside for safety reasons.  Between rounds he was permitted to watch television or converse with other members of the crew.

Beech, who was off duty, spoke with Cosenza while both were in the rig’s TV room.  Beech mentioned he had been considering purchasing a small handgun, which prompted Cosenza to retrieve his pistol in order to show it to Beech.  Cosenza returned to the TV room with the gun and demonstrated it to Beech.  Then, having finished showing the gun to Beech, Cosenza moved to sit down.  He bumped the couch where he intended to sit and the weapon accidentally discharged.  The bullet struck and killed Beech.

Beech’s family brought a Jones Act wrongful death case against Hercules.  The Jones Act provides a negligence cause of action for any seaman injured in the course of his employment, and a Jones Act employer may be vicariously liable for the tortious acts of its employees.

At trial, the parties disputed whether Beech was injured in the course and scope of his employment as required by the Jones Act, and if he was, whether Hercules was vicariously liable for the accidental shooting by Cosenza.

The federal district court concluded that Beech was injured in the course and scope of his employment for purposes of the Jones Act.  The “course and scope” of employment under the Act is broader than that applied to land-based employees because workers at sea cannot simply go home when their shift is done.

Here, Beech was aboard the Hercules rig and subject to the call of duty at the time he was shot, all within the course and scope of his employment, the court said.  That meant that his wife was a proper Jones Act plaintiff who elected to sue Hercules in a representative capacity after his death on the job.

Hercules also was vicariously liable under the Jones Act, the court concluded.  In that regard, Hercules could be liable for Cosenza’s tortious conduct, as a matter of vicarious liability, only if Cosenza himself were acting in the course and scope of his employment at the time of the shooting.

The court observed that the unprecedented facts raised a question of first impression in the Fifth Circuit Court of Appeals, namely whether an employee negligently inflicted injury on a co-worker by the knowing violation of a company safety rule.

After reviewing the various approaches adopted in circuits that had considered cases involving roughly similar facts, the court found no binding authority that spoke to the unique facts of the case.

The court ultimately found that Cosenza was acting in the course and scope of his employment when the shooting occurred, for purposes of attaching vicarious liability to Hercules under the Jones Act.  Although not engaged in typical duties when the accident happened, Cosenza was, as he was permitted and encouraged to do, remaining indoors on the night shift and socially interacting with another crew member.  The fact that he violated company policy by having a handgun on the vessel was not a deciding factor, as permitting an employer to avoid Jones Act liability simply because an on-duty employee breached a safety rule would run counter to Congressional intent behind the Jones Act, which is to extend benefits and protections to injured seamen.  The court emphasized that Cosenza’s conduct was negligent, not intentional.

Under the facts, according to the court, at the critical moment—when the gun discharged— Cosenza was acting in the course and scope of his employment.

As a result, Hercules was vicariously liable for the negligence of Cosenza, and Beech’s family was entitled to recover compensatory damages for his death.

The lawyers at Arnold & Itkin LLP are aggressive maritime accident trial attorneys who understand the complexities and legalities of maritime law.  Our law firm secured more than $100 million in verdicts or settlements for our clients in 2009.

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. We have the expertise to handle maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama.