New Maritime and Longshore Articles Online

Here are some highlights of new Maritime and Longshore articles on the internet:

Check out Siobhan Morrissey’s article, For vacationers encountering trouble on cruise ships, U.S. laws may provide little help, which the American Bar Association published on the ABA Journal website.  Using the Costa Concordia accident as a backdrop, the article discusses the legal rights of cruise ship vacationers.  Also, the article discusses other potential problems haunting the cruise ship industry, such as serious crimes and illnesses.

Next, head over to the LexisNexis Workers Compensation Law community for Paul Howell’s article, Meddlin’ With Settlin’.  This article addresses the requirements for a Longshore settlement…and the players who could stop a settlement dead in its tracks.  Those players include the claimant, the employer and carrier, and the Director.

Finally, the New York Post’s website has a great article entitled, Britney Spears’ songs used to fight Somali pirates.  No, really.  My favorite quote comes from Second Officer Rachel Owens: “It’s so effective the ship’s security rarely needs to resort to firing guns.”

ADA Guidelines for Passenger Vessels

The U.S. Department of Transportation will in the near future be issuing new accessibility guidelines for the construction and alteration of passenger vessels covered by the Americans with Disabilities Act (ADA) to ensure that all such vessels are readily accessible to and useable by passengers with disabilities.  The guidelines are being written by the Architectural and Transportation Barriers Compliance Board.  The guidelines would apply to passenger vessels, other than ferries and tenders, permitted to carry more than 150 passengers or more than 49 overnight passengers; ferries permitted to carry more than 99 passengers; and tenders permitted to carry more than 59 passengers.

The proposed guidelines address various features of vessel accessibility and include provisions for onboard routes, vertical access between decks, doorways, and coamings, toilet rooms, guest rooms, alarm systems, and other spaces and elements used by passengers.  The Board is not proposing requirements for smaller vessels due to assessed design challenges, space constraints, and other factors.  The guidelines would apply to newly built of altered vessels.

In laying the groundwork for this effort, the Board conducted research on the feasibility and impacts of integrating accessibility into the design of vessels.  This information includes case studies on vessels of various types and sizes, examination of design solutions to identify design and engineering constraints, and cost and impact analyses.  The Board previously released advanced drafts of the guidelines for comment which were based on recommendations from an advisory panel organized by the Board, the Passenger Access Advisory Committee.

Access Board Chairman Karen L. Braitmayer stated, “We know from experience that barriers to accessibility are often due to a lack of clear and detailed design guidance, and this rule will fill a long standing gap in making passenger vessels accessible to all.”

The Board is developing these guidelines under the ADA, which requires access to transportation and other services and to places of public accommodation.  Under the law, the Board is responsible for developing minimum guidelines covering access to transportation systems and to the built environment.  The vessel guidelines, once finalized, will join the Board’s ADA Accessibility Guidelines for Vehicles, which are currently being updated, and its ADA Accessibility Guidelibes for Buildings and Facilities.  The new guidelines will be used by the Department of Transportation and the Department of Justice in setting mandatory standards.

The rule can be accessed on the Board’s website or through the Federal government’s rulemaking portal at www.regulations.gov.  Instructions for submitting comments, which are due by September 23, are included in the proposal.

Longshore and Maritime Posts on the Internet

Here are some articles on the Internet that may be interesting to the maritime, Longshore and Defense Base Act community:

Over at SCOTUSBlog, Lyle Denniston discusses the new letter briefs in Lozman.  In an earlier post on this blog, we mentioned that the Supreme Court asked for letters briefs to determine whether there was a live controversy in Lozman.  As Mr. Denniston reports, all parties want the Court to consider Lozman: “Lozman, the city, and the federal government all agreed in their briefs that the posting of the bond, as well as traditional maritime principles, made it clear that the pending case is not moot.”  If you are interested in reviewing the letters briefs, Mr. Denniston provides links.

Over at the LexisNexis Workers’ Compensation Law Community there are a few articles to check out.  Stephen Embry’s article, Workers’ Injury Law and Advocacy Group Holds 40th Anniversary Symposium on the Status of Workers’ Compensation Law in the United States, discusses the most recent WILAG meeting and the history of workers’ compensation law since 1972.  Stephen Vaughan’s article discusses the Fifth Circuit’s Fisher v. Halliburton decision wherein the court determined that the Defense Base Act was the plaintiffs’ exclusive remedy–thus dismissing the plaintiffs’ tort claims.  Following Fisher, “[c]laimants’ attorneys are not likely to see a new cause of action in the Fifth Circuit for egregious or malicious claims handling misbehavior…[but the] Fifth Circuit has…left the door open to consideration of a claim against an employer for behavior intended to result in injury.”

At John’s Longshore and Defense Base Act Blog, John Chamberlain discusses the Ninth Circuit’s recent decision Pacific Ship Repair and Fabrication Inc. v. Dir., OWCP.  He has a great take on the case from a claimant’s point of view.  As correctly pointed out, had permanent total disability been paid, the claimant would have been paid more indemnity benefits.   The Ninth Circuit’s formulation, however, allowed “the court to ignore the amount due to the claimant.”  (Previously, we addressed Pacific Ship Repair in a post that discussed the decision from the employer’s and carrier’s point of view.  Not only should the Special Fund have continued paying benefits to the permanently-disabled claimant, but the Pacific Ship Repair decision is so loosely written that it will likely cause more litigation to hash out what a “potential for improvement” is and when the “reset button” has been pressed.  It looks like claimants, employer and carriers can agree that Pacific Ship Repair is a troubling decision.)

At the AEU Longshore Blog, Jack Martone posted an article that answers three important questions for employers: 1. When do I need Longshore Act insurance?  2. Where can I get Longshore Act insurance?  3. What happens if I need Longshore Act insurance and I don’t have it?

As he does every month, Tom Langan posted a new update at Longshore Update.  Everyone should check out Longshore Update, which collects and discusses the past month’s Longshore and maritime-related cases.  Not only are the write-ups informative, they are humorous too.

Finally, over at Workcompcentral, there is a link to our recent Section 33(g) article, as well as a great collection of columns addressing a broad spectrum of workers’ compensation issues.

More on Cell Phone Use in the Maritime Industry

Making headlines recently was the multi-million dollar settlement of the death and injury claims arising out of the July 7, 2010 collision of the tug M/V CARIBBEAN SEA and its 250 foot barge with an anchored 33 foot amphibious passenger vessel, DUKW34 in the Delaware River.  Two passengers died and 25 were injured.  In the course of its investigation, the National Transportation Safety Board (NTSB) found that the probable cause of the accident was, in part, “distraction and inattentiveness of the wheel man on the tug as a result of his repeated use of his cell phone and company laptop computer while he was solely responsible for navigating the vessel.”

At trial, in an attempt to distance itself from the actions of the mate, the owner of the tug sought to prove that it had in place policies against cell phone use and that it should not be liable for the mate’s violation of the company’s policy. 

Unfortunately for the owner, counsel for the plaintiffs was able to establish, through the testimony of the tug’s crew, that personal cell phone use while on watch was done “repeatedly, routinely, rampantly and continuously” from 2002 when the policy was established until the accident, according to the lawyers.  In other words, there was a policy prohibiting personal cell phone use in place, but it was ignored and never enforced.  Faced with this damning testimony, on the second day of trial owners of the tug opted to pay a 17 million dollar settlement and not risk a runaway verdict.

Commenting on the tragedy, NTSB chairman Deborah Hersman said, “this is yet another example of the deadliness of distractions.  Distraction is a safety concern across all modes of transportation.  Regardless of the reason, it is not okay to multitask while operating a vehicle – whether it is calling, texting or surfing the web.”  The NTSB issued recommendations to the tug owner to review its management program and develop improved means to ensure that the company’s safety and emergency procedures are understood and heeded by all employees in safety-critical positions.  The NTSB also issued recommendations to the U.S. Coast Guard to increase focus on and oversight of inappropriate use of cell phones and other wireless electronic devices by on duty crewmembers in safety-critical positions so that such use does not affect vessel operational safety.  Additionally, the NTSB issued a recommendation to the American Waterways Operators to encourage their members to ensure that their safety and emergency procedures are understood and adhered to by their employees in safety critical positions.

Further, as a consequence of the collision, the Department of Justice and U.S. Coast Guard charged the mate at the wheel with involuntary manslaughter and moved to revoke his Coast Guard issued license.  The mate ultimately reached a plea agreement to serve one year in prison and voluntarily give up his license.

Ironically, the U.S. Coast Guard has itself been the target of the NTSB for casualties caused by use of cell phones by those in positions of responsibility.  On December 5, 2009, CG 25889 collided with the small passenger vessel Thriller 09 in Charleston, South Caroline, and on December 20, 2009, collision of the CG 33118 with a 24 foot recreational vessel in San Diego, California, that resulted in one fatality.

The NTSB found that in both accidents a contributing factor was use of cell phones by the crew of the Coast Guard vessel.  The NTSB issued two recommendations to the Coast Guard, (1) develop and implement national and local policies that address the use of cell phones and (2) issue a safety advisory to the maritime industry that promotes awareness of the risk posed by use of cell phones and encourages voluntary development of operational policies to address the risk.  In response, the Coast Guard issued Safety Advisory 01-10, which discusses the issue of distracted operations, including the use of cellular telephones and other wireless devices, and recommends that vessel owners and operators develop and implement effective operational policies outlining when the use of cellular telephones and other devices is appropriate or prohibited.  The Coast Guard said that it intends to work with the National Boating Safety Advisory Council in developing guidance for recreation boat operators on the use of cell phones and other wireless devices.

The message is loud and clear – use of cell phones or other wireless devices while navigating vessels or driving your personal vehicle is dangerous.  All companies which operate commercial vessels should have in place a zero tolerance policy against use of cell phones or other wireless devices by crew on watch.  Then the policy must be strictly enforced and its enforcement documented.  If a casualty occurs due to use of such devices and litigation ensues, the vessel owner may be presumed to be at fault and forced to prove its innocence.  Crew could lose their licenses and livelihoods and face criminal prosecution.  And, as here, millions paid.   Have a policy and enforce it without exception.