Maritime Law Developments
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No. 10-30236 (unpublished decision); December 9, 2010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.
Jaime Ortiz, 43, fell off a 39-foot lobster boat based in Gloucester, Mass., prompting an immediate search that included boats owned by local harbormasters, police and numerous local fishermen. Ortiz has not yet been found, and no official statement has been made about his chances of survival. Local officials said the search would continue..jpg)
The 
The agency plans to develop a comprehensive maritime network that can receive information from vessel lines and other sources, and then use the information to ward off any threats. The agency has established maritime liaison officers at all its field offices that have connections to the maritime industry.
Fishing does not have to be a dangerous activity, but it often involves injuries and deaths, including drowning accidents, explosions, fires, and other vessel-related accidents. In 1998, the Commercial Fishing Industry Vessel Safety Act was passed to improve safety standards in the lucrative, but dangerous fishing industry. The U.S. Coast Guard enforces the regulations of the Act, which involves helping rescue crew members after a vessel is lost. These regulations require that vessels engaged in commercial fishing activities have safety equipment on board, including life rafts. Boats must be equipped with flares, survival kits, and personal flotation devices.
The worker, Pedro Perez, was employed by Great Lakes Dredge and Dock Company in Galveston County back in the sixties. According to the lawsuit filed by a 
Other employees managed to uncover the maritime worker and he was administered CPR before being rushed to the Mobile infirmary, and ultimately pronounced dead.
The bold attack that came so soon after the dramatic assault on the Maersk Alabama is proof that piracy in the waters off the Somali Coast is not just alive and kicking, but more aggressive than ever. Three of the pilots who attacked the Alabama were killed and the fourth was arrested. Enraged pirates have threatened to show no mercy to maritime crews in any vessel they attack from now on. Those words must be taken seriously. After all, since the three Somali pirates were killed, another armed gunmen managed to attack four other ships. To .jpg)
According to Steiner's 
The TWIC program was created due to the increased security threat to ports after 9/11. After the twin towers collapsed it became clear that our ports provided easy access to those who felt the need to harm Americans. The 
Maritime safety procedures, if followed properly, can minimize the risk of accidents. Loads must be properly secured to prevent the risk of loads falling off of cranes and injuring workers. Maritime workers must also be trained about the risks they face while performing these activities. The importance of worker training and employee coordination cannot be underestimated. It is imperative that workers are trained to warn each other about the status of operations and any possible risk to those in the vicinity. Cranes must be fitted with alarm systems to warn workers that loads are being carried.
Investigators are looking into a number of factors that may have caused the accident, including the speed of the power boat, lighting conditions, and whether people on the power boat were drinking at the time of the crash. The driver of the boat is said to be one of those who survived the boat accident and officials have confirmed that they will conduct toxicology tests on the driver. 
The crew included Colin Wright, a Galveston resident. The captain, Richard Philips, gave himself up as a hostage to the pirates in return for the safe release of his crew members. The ship safely returned to port and after a five day standoff, Phillips too was rescued when snipers killed three of the pirates and took one into custody.
The enhancements are expected to bring in more than $400 million in extra revenue for the port and could lead to the creation of more than 2,000 jobs. That is good news, not only for the port and its maritime workers, but also for the larger Galveston community.
Coast guard personnel worked many hours to recover the crane as emergency crew members averted an environmental disaster by preventing oil from spilling into the water. A larger 100-ton crane was used to help with emergency rescue efforts.
The company that owns one of the boats, Diversified Environmental Services, is located near the dock and was able to respond to the crisis immediately. The quick response helped prevent damage to marine life and the environment. No injuries were reported in the collision.
After the Newfoundland helicopter crash, investigators began to look into whether the stud fractured before the crash or was smashed during the accident. A broken stud can lead to loss of oil pressure, potentially resulting in a gearbox problem and eventually loss of control of the chopper. Investigators have now determined that the titanium studs are indeed prone to fracture. The studs in the Newfoundland accident are believed to have fractured during the flight. In January, Sikorsky issued an alert asking helicopter operators to replace the titanium studs with steel ones..jpg)
He suffered intense terror, unsure if rescue would arrive in time or if the rig would collapse on him. He suffered injuries to his wrist and back, but the emotional scars ran deeper. He has suffered from severe post traumatic disorder since the accident. In 2007, Campbell was awarded $952,966 including 200,000 in damages for PTSD.
The system is expected to be in place within the next 5 years, but in parts of Florida, pilots are already using the satellite-based GPS data to obtain the same information air traffic controllers can see on their monitors. The GPS allows controllers to locate the position of an airplane far more accurately than they currently do with data from ground-based radars. With the new system, pilots and air traffic controllers will be able to access data generated by the second..jpg)
Soon after Ike, the district used its own funds to make temporary repairs to the bridge; FEMA assured the district it would be reimbursed for money spent on repairs by mid March. That was before FEMA realized it may not be responsible for the funding after all.
Across the world, 115 countries have promised to ban single hull ships by 2015. In the U.S., single hull tankers are required to unload at the Louisiana Offshore Oil Port or other designated unloading points until 2015 comes around. Even as the world moves to avoid another massive and environmentally destructive maritime accident like the Valdez spill, Exxon continues to use single hull tankers. In 2008 alone, Exxon Mobil Corp. hired more older, single hull tankers than the other top ten oil companies combined. The company insists that the cost of hiring double hull tankers is not the reason for its failure to bring them into operation. Double hull tankers can cost up to 20% more to hire than single hull ships.
Fortunately, there were no injuries on board the Gilchrist. Fires on a water craft are often linked to explosions; the fire on the Gilchrist appears to have ignited in the engine. This can happen due to improper maintenance of the fuel system. Fires can also break out due to electrocution, when the vessel comes in contact with a live power line.
It appears that the drilling company was negligent in providing a safe working environment for Jesus Perez. The opening of the platform that Perez fell into, according to the lawsuit, was the result of misplaced grading; the drilling company was responsible for making sure that such potential hazards were absent from the platform.
Galveston County Navigation District No.1 paid Texas Gulf Company $1.5 million to repair the bridge, but in early February the project was shut down due to shortage of funds. A local contractor Lamson Nguyen has agreed to take up the task of filling potholes on the bridge free of cost. However, the fact is that the 50-year-old bridge is in need of permanent repairs. The district has no funds available to continue the work and has requested $6 million from the .jpg)
The ports will receive $4 million each from the .gif)
New infrastructure will also add to the efficiency of cargo shipping operations from the industrial plants on Chemical Row. Port of Beaumont's investment of the federal funds is expected to create hundreds of jobs, in addition to increasing the capabilities of the port by at least 50%. The Orange County property will include deep access capabilities, as well as development of a new dock. The port will not depend solely on federal funds to finance these ambitious new infrastructure projects. According to Chris Fisher, Port of Beaumont's executive director, the total funding from the Economic Development Administration is $134 million and has been distributed to other Texas ports, as well as ports in Louisiana, Oklahoma, Arkansas and New Mexico.
When the tugboat, Mel Oliver, pushed an oil barge into the path of an oncoming ship last July, apprentice mate John Bavaret was at the helm. Bavaret did not have the licensing needed to operate the tugboat, he was "filling in" for Terry Carver, the captain of the ship. Carver, according his own testimony, jumped ship a few days before the tugboat accident to pursue his girlfriend in Illinois. He asked Bavaret to take his place at the helm of the tugboat. Bavaret's inexperience and lack of qualifications for the job resulted in an accident that ended with more than 280,000 gallons of fuel spilled into the Mississippi River. According to Jim Sellers' testimony, hiring inadequately licensed crew members was a regular practice at DRD Towing. The company, which closed down in August, had previously substituted an unlicensed deckhand for an apprentice mate. According to Sellers, he tried, on many occasions, to caution his employers at DRD Towing that the practice of staffing the vessel crew with insufficiently licensed personnel could end up causing problems for the company.
Coastal Maritime Stevedoring LLC is a stevedoring company based in Jacksonville, Florida; the company provides loading and unloading services for various kinds of cargo, in addition to warehouse and marine terminal management. The company is capable of handling over sized and unusual cargo, including: military cargo, water crafts, locomotives, cranes and construction machinery. Daise was apparently involved in transporting cargo for Coastal Maritime at the time of the accident.
According to the NTSB, Cosco Busan pilot, John Cota, bore most of the responsibility for the accident due to his failure to read radar data properly. Also, at the time of the accident, Cota was, reportedly, taking as many as 11 different medications for various conditions, ranging from alcoholism to depression. The Board vocalized the reaction of many 
for close to 7.5 hours before help arrived. The investigation found that the accident was caused because of the pilots' slow response when the first engine failed. The board concluded that the slow response was probably due to high stress levels because of the timing of the crash - one week after hurricane Katrina made landfall. The chaotic conditions soon after Katrina hit caused delays in the communication network at Houston Helicopters Inc, the company that operated the helicopter. According to the Board's report, there were several violations at Houston Helicopters Inc. which contributed to the delayed rescue efforts. Post Katrina, other offshore helicopter operators serving drilling companies in the Gulf of Mexico made alternative arrangements, so they could continue supporting helicopter flights. Houston Helicopters Inc., however, failed to make any substitute arrangements. Instead, management at the company recommended that pilots use their own cell phones to transmit important flight information to the control center. The board also found that although Houston Helicopters Inc. had a record of 8 accidents, 3 incidents and at least 18 FAA surveillance violations, there were no follow ups made to check if the company was in compliance with rules regarding alternate methods of flight following procedures. 