Articles Posted in Admiralty/Maritime

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Gambling is one of the many recreational activities that the state of Louisiana has to offer. One of the more popular ways to gamble in Louisiana, is on the river boat casinos. However, in a recent Louisiana Third Circuit Court of Appeal decision, the court explored whether or not incidents such as personal injury that occur on these river boat casinos qualify under maritime law as a result of being “in navigation.” This issue presents an interesting dilemma in classification, especially after the Louisiana legislature in 2001 amended the gambling laws so as to prohibit gambling boats in Lake Charles from conducting cruises or excursions. Thus, the question becomes: are these river boat casinos in navigation and thus governed by maritime law?

The facts of the case include a young woman who visited a river boat casino on Lake Charles to enjoy gambling in addition to the complimentary food and drinks. However, she became intoxicated and at 4 a.m., she fell from a stairway onto the ground below, suffering serious injuries. According to protocall, her blood alcohol content was measured at 0.33%. Initially, the young woman pursued damages under Louisiana law, however, Louisiana Revised Statute 9:2800.1 provides:

“The legislature finds and declares that the consumption of intoxicating beverages, rather than the sale or serving or furnishing of such beverages, is the proximate cause of any injury, including death and property damage, inflicted by an intoxicated person upon himself or upon another person.”

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The ABA (American Bar Association) has called upon lawyers and non-lawyers alike to submit blogs from across the internet as exceptional examples of legal advice and content. With content about the law ranging widely across the internet, the ABA recognizes the value of those blogs that wish to educate the public about a wide range of issues as examples of how attorneys can help bring an understanding of public policy to the masses.

Through a form, located here, ABA members and/or the public can nominate the efforts of attorneys whose work helps explain the complexities that the law has to offer. While the competition prevents bloggers from nominating themselves, the ABA has requested that the work of their peers be showcased. Due by September 9th, blog suggestions can cover any topic of the law, whether maritime, personal injury, civil or criminal in nature. This possibility of diversity makes the Top 100 list all the more interesting because of the wide variety of content the selected are sure to cover.

If you know of a blog that wishes to discuss legal issues of interest to lawyers (and perhaps those outside of the field), click here to fill out the ABA’s form. Limited to 500 words, nominations should explain why the blog, obviously, deserves to be included in the list as well as its value as a whole. Nominated sites should avoid the regurgitation of content from other sites (copy and pasted quotes of news items, etc.), showing that the main focus of the content is original discussion of those issues of law that affect professionals as well as the public.

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In Darren Dugas, et al v. Bayou Teche Water Works, et al, the Third Circuit Court of Appeal for Louisiana (“Court”) provided guidance on Louisiana statute La. R.S. 9:5624, which limits the liability of any government entity in Louisiana in connection with a public works for a two-year statutory period. The plaintiffs, the Dugas family (“Dugas plaintiffs”), sued Bayou Teche Water Works, Inc. (“Bayou Teche”) and its insurer for damages they allegedly sustained from Bayou Teche’s dumping of brine into an irrigation canal.

The Dugas plaintiffs owned a stretch of farmland along an irrigation coulee in Iberia Parish, and used the irrigation water for their farming operations. Bayou Teche, the defendant, runs a potable water treatment plant nearby. According to the petition, the Dugas plaintiffs notified Bayou Teche immediately upon discovering the discharge, but Bayou Teche continued to discharge the brine into the waterway for about a year after. After the Dugas plaintiffs brought suit, Bayou Teche answered their petition by merely stating that it was a Louisiana corporation that complied with all applicable statutes and regulations in its operation. The company subsequently filed an exception of prescription, which the trial court granted. In granting the exception, the trial court relied on La. R.S. 9:5624, which states that “[w]hen private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.” As discussed previously, the statute was adopted to limit governmental exposure from claims for damages to property when the damage is caused by a public work. Nuckolls v. Louisiana State Highway Department. The policy behind the statute is to encourage projects that provide a public purpose or benefit. The statutory period begins to run when the damage is discovered. In other words, the suit must be brought within two years after damages are sustained. Therefore, any suit that is not brought within the two-year period is barred. By granting the exception, the trial court concluded that the Dugas plaintiffs did not bring their lawsuit within the period of time set by the law.

Since the burden of proving the exception of prescription is on the movant, the ultimate issue on appeal was whether Bayou Teche met its burden of proof. After reviewing the record, the Court concluded that Bayou Teche failed to meet its evidentiary burden. The Court reasoned that the evidence introduced at the lower level only addressed the defendant’s allegations that the plaintiffs’ own negligence caused their damages. At the hearing, Bayou Teche failed to argue how it satisfied the particular elements of the statute. It did not assert it was a government entity nor explain how its water treatment plant and the dumping of brine serve a public purpose.

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In Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co., the 5th Circuit revisits the decision made by the U.S. Supreme Court in Robins Dry Dock Co. v. Flint, 275 U.S. 303(1927): a foundational precedent for both maritime law specifically, and modern negligence law, generally. In Robins, the Supreme Court articulated a rule that has endured to this day and has significantly influenced general negligence jurisprudence; namely “there can be no recovery for economic loss absent physical damage to or an invasion of a proprietary interest.” In TESTBANK (1985) the 5th Circuit reaffirmed the Robins rule that the court has consistently applied whenever circumstances necessitate doing so. After reviewing the rules from Robins and TESTBANK, the court in Catalyst applies these rules to the facts of the case.

On December 24, 2007, two tug boats with barge tows collided on the Mississippi River 2.5 miles upriver from the intake channel to the Sidney A. Murray hydroelectric plant. M/V Dan McMillan and its tow was operated by Defendant ARTCO, and M/V John Donnelly and its tow was operated by Defendant Ingram Barge Co. Several barges broke free from the tow of the Dan McMillan, including Barge TILC-37. Barge TILC-37 then drifted down river into the intake channel of Catalyst’s facility and became grounded on the east bank of the intake channel, lodged against the station and abutment. The physical presence of Barge TILC-37 obstructed the intake channel which provides water to the turbine/generators of the electric power generation facility.”

Because of the location of the barge, Catalyst had to reduce the flow of water in the intake channel to the turbines; and thus its output of electricity. This was necessary to prevent the barge from sinking and to allow safe access to the barge for its removal. Catalyst had to shut down six of the turbines and reduce the output of the remaining two because of the decrease of water coming into the intake channel. This allowed for the safe removal of the barge. Catalyst restored normal capacity to the plant at 6:30 p.m. on the 25th.

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The Town of Vidalia and the Parish of Concordia have the honor and distinction of being the beneficiary and location, respectively, of the largest prefabricated power plant in the world and the first hydroelectric power plant in the State of Louisiana. In 1990 the Sidney A. Murray Jr. hydroelectric station was prefabricated at the Avondale Shipyard in New Orleans, and floated 208 miles upriver to its current location: 40 miles south of Vidalia. The facility sits one mile north of the Army Corp of Engineers Old River Control Complex between the Mississippi River and the Red Atchafalaya River, producing 192 megawatts by utilizing the flow of 170,000 cubic feet per second of water past eight hydroelectric turbines. The project is remarkable not just because it is the first hydroelectric plant in Louisiana, and the largest prefabricated hydroelectric plant on the planet; but it is also the product of a multinational collaboration, it produces clean and renewable energy for Vidalia, and the town of Vidalia is a co-licensee of the project. In addition to the obvious benefits of clean and renewable energy and the employment that the Sidney A Murray Jr. project bestows on Vidalia and the Parish of Concordia; the citizens of Vidalia also benefit from “stabilized energy rates” that they receive with the operation of the plant.

Catalyst Old River Hydroelectric Limited Partnership v. Ingram Barge Co.; American River Transportation Co. is a particularly interesting case for those living in Concordia Parish because it is a maritime tort case involving the Sidney A. Murray Hydroelectric Plant. The case is important because it includes a review of the standards for damage requirements established in Robins Drydock and Repair Co. v. Flint 275 U.S. 303 (1927) and reaffirmed in Louisiana ex. rel. Guste v. M/V TESTBANK 752 F.2d 1019 (5th Cir. 1985). After reviewing Robins and TESTBANK, the 5th Circuit then applies the Robins test to the particular facts of the case. This will be a two part discussion: the first part will identify and discuss the test developed in Robins and evaluated in TESTBANK. The second part will discuss how the 5th Circuit applied the Robins test to the facts of the Catalyst case.

In 1927 the United States Supreme Court decided Robins Dry Dock and Repair Co. v. Flint. This case established “the general proposition that claims for pure economic loss are not recoverable in tort.” This decision has profoundly impacted not just maritime tort law, but general negligence law as well; with extremely broad implications and applications that resound to this day, over 80 years later. ” No single decision in American tort law has more dominated the analysis of liability for pure economic loss than Robins Dry Dock Repair Co. v. Flint.” Justice Holmes “denied the plaintiff, a time charterer recovery for financial loss which resulted from the defendant’s interference with the plaintiff’s use of the chartered vessel.” The following hints at the scope of the effects of the decision.

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July 4th, though best known as an occasion for grilling out, visiting the beach or lake, and watching the fireworks, is unfortunately also notorious for its high incidence of accidents and injuries. Many incidents, especially vehicle and boat accidents, are related to alcohol use. The Louisiana Highway Safety Commission recently announced that more than 87 state and local law enforcement agencies work overtime throughout the holiday weekend. Many of the agencies will be participating in the state’s “Over the Limit, Under Arrest” campaign that aims to keep impaired drivers off the road. The Commission reports that the number of highway deaths has dropped significantly over the past few years: 16 people were killed on Louisiana highways over the Fourth of July holiday in 2007, and only two fatalities occurred last year.

Despite this positive trend and the stepped-up efforts by law enforcement, patriotic celebrants throughout Louisiana may still find themselves in dangerous situations over these holiday weekends. When calamity should strike, the parties involved may turn to the courts to resolve their dispute; the resolution will likely involve the court’s application of negligence. The theory contains four basic elements that a plaintiff must show in order to recover from a defendant. First, a plaintiff must establish that the defendant owed him or her a duty. This is generally a straightforward matter, as all members of society have a responsibility to exercise reasonable care toward others; this duty takes such common sense forms as requiring users of fireworks to point bottle rockets away from bystanders or drivers to operate their vehicles in a safe manner. Driving a car or piloting a boat or jet ski while under the influence of alcohol or drugs is a clear violation of this duty. A person who fails to observe the obligation of safety and engages in conduct that poses an unreasonable risk of harm to others is said to breach this duty. This second element of negligence must be tied to the plaintiff’s injury by way of the third element, causation. That is, the defendant’s breach of duty must have resulted in the plaintiff’s injury. A defendant is responsible only for the consequences that are directly linked to his or her misconduct.

The final element, harm, requires the plaintiff to prove that he or she suffered a loss. The court can award two kinds of damages to compensate the plaintiff for his losses: special and general. Special damages are those which are easily quantifiable, such as medical expenses, lost wages, or property repair costs. General damages cover intangible losses, such as pain and suffering. Trial courts are afforded great latitude in assessing general damage awards, which can potentially expose defendants to staggering liability.

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In any workplace, an on-the-job injury can have serious repercussions, both medical and legal, for the injured employee and their employer. However, if the injured employee is a seaman, additional maritime laws and standards may apply when an injury occurs. For individuals working on ships, in shipyards, or in any industry covered by maritime law, knowledge of the protections and specific laws which apply in the event of injury is pivotal in order to be able to protect oneself.

The recent Louisiana First Circuit Court of Appeals case of Graham v. Offshore Specialty Fabricators, Inc. and Cashman Equipment Co. illustrates the importance of understanding the Jones Act, a federal law allowing seamen injured on the job to sue their employers, and claims alleging unseaworthiness of vessels. Graham was injured while working with a barge fleet on the Atchafalaya River near Morgan City, Louisiana. He and a co-worker were charged with the task of securing their employers deck barge. During this process, they needed to move other barges owned by Cashman Equipment Co. They crossed the deck of one such barge in order to reach and release the ship’s towline. Unbeknownst to the men, there were two large holes on the ship’s deck. Both men fell through one of the holes and both were seriously injured. Graham sued, and the lower court found in his favor. A jury awarded him damages. Both plaintiff and defendant appealed.

Graham brought his personal injury suit under the Jones Act. The Jones Act applies to any seaman who is injured or killed on the job and establishes his or her right to bring a civil action against an employer. The potential liability of the employer extends to all personal injuries sustained on the job, but the employee must prove negligence in order to recover. The duty of care owed by an employer under the Act is ordinary prudence. The ordinary prudence standard requires an employer to take reasonable care in maintaining a safe work environment under the circumstances particular to the case. To prove a claim of ordinary negligence, a claimant must prove that injury occurred and that the employer owed a duty to the injured, that the duty was breached, and that the breach caused the injury. The claimant must also show they themselves were exercising reasonable care in the course of their activities in order to recover. Graham presented evidence that the defendants were at fault for failing to properly maintain their ship deck. Based on this evidence, the appellate court held that the jury determination of damages on this issue should stand.

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Louisiana jurisprudence recognizes the concept of the interlocutory appeal, which is an appeal of a ruling by the trial court before the verdict is ultimately rendered. An interlocutory appeal is available only for issues that would directly affect the trial’s outcome or that would not be reviewable except by immediate appeal. Thus, not all interlocutory judgments made by a trial court are eligible for appeal. For instance, a trial court’s judgment granting a party’s motion for new trial is an interlocutory judgment that is ineligible for appeal because it does not decide the merits of the case. This very rule was at the center of the Third Circuit Court of Appeal’s recent unpublished opinion in the case of Dauzat v. State of Louisiana, Department of Transportation and Development.

On March 10, 2008, Christine Dauzat boiled several batches of crawfish in a large, heavy pot on the patio of her home located in Avoyelles Parish. When she was finished cooking, Dauzat and her adult son carried the pot of still-boiling-hot water to the roadside ditch that ran the length of her property. While attempting to dump out the pot, Dauzat slipped on a ramp that crossed over the ditch. The hot water from the pot poured over her as she fell into the ditch, burning her severely. Dauzat sued the Department of Transportation and Development (DOTD) alleging that the ramp and ditch were located within the DOTD’s right-of-way and that the DOTD failed to properly maintain the ramp. At trial, a jury returned a verdict finding Dauzat to be 100 percent at fault for the accident. Dauzat filed a motion for a new trial, which the trial judge granted after a hearing. Then the DOTD filed a suspensive appeal in the Third Circuit Court of Appeal that sought to delay the commencement of the new trial. Dauzat countered that the DOTD’s appeal was improper “because a judgment granting a motion for new trial is an interlocutory judgment.” The Third Circuit agreed: “The judgment granting [Dauzat’s] motion for new trial does not decide the merits of this case and, thus, is interlocutory.” Louisiana jurisprudence has expressly held that “a judgment granting a motion for a new trial is a non-appealable interlocutory judgment.” Thus, the court found that the trial court’s ruling was a “non-appealable, interlocutory ruling,” and Dauzat was able to proceed with her new trial.

At the center of this judgment was the fact that the trial court’s granting of a new trial did not directly resolve the ultimate issues in the case – whether the DOTD had a duty to maintain the ramp and ditch in front of Dauzat’s property, and whether it failed to do so. The trial court’s judgment simply permitted the matter to be brought before a second jury for resolution, and that ruling was therefore not appealable. The policy of limiting appeals is based on the preference of handling matters at the trial court level whenever possible, as the trial court offers the most direct means by which to resolve factual disputes.

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Time is of the essence when it comes to filing a suit to address a grievance. If too much time passes, one may be barred from filing a lawsuit. The time period for filing a lawsuit is known as the “prescriptive time period.” For example, a lawsuit for personal injury is subject to a one-year period of liberative prescription, following the date of the accident. The issue may become whether or not the time period has passed or not, thus, keeping a close eye on the calendar is the best way to stay safe when filing a lawsuit.

In a recent Louisiana Supreme Court decision, the court explored the time period in which the plaintiff initially filed to determine whether or not he filed in the appropriate time period. The cases arose from a fire at an oil well site in which the plaintiff was severely burned. The oil well accident occurred on September 27, 2007, thus, according to the prescriptive time period, he had one year from this date to file suit against the defendant(s). The plaintiff was employed by a Well Service Company that had contracted with an additional Mineral Company that produced oil and gas. In turn, the Mineral Company contracted with the plaintiff’s direct employer to drill a well. The plaintiff filed a tort suit for his personal injuries against the Mineral Company and its insurer on September 4, 2008, falling within the one-year time period allowed for personal injury lawsuits. The plaintiff sustained injuries during the drilling operations, the well penetrated into formations that were pressurized with hydrocarbons. At the time of the incident, the plaintiff was in charge of circulating water through the well while awaiting heavier drilling mud to be pumped into the well to control the hydrocarbon pressure. His direct supervisor, a Well Service Employee, told the plaintiff to stand away from the well because the level the pressure was dangerous. However, the Mineral Supervisor contradicted the former supervisor’s orders and told the plaintiff to get on his station at the pump and to abandon it only after shutting the pump off should the gas escape the well.

To the plaintiff’s misfortune, he followed the Mineral Company’s supervisor, where shortly after a hydrocarbon gas from down-hole escaped from the water tank sufficientily so that it ignited as the plaintiff was attempting to shut off the pump. This caused the hydrocarbon cloud in which the plaintiff was surrounded by, to become ignited, severely burning his entire body. It was only after the plaintiff filed suit against the Mineral Company that he discovered that the alleged Mineral Company supervisor was actually an independent contractor employed by a separate Pipeline Company. Thus, after the one year period, the plaintiff named the Pipe Company as a defendant in an amended petition. The question became whether or not the amended petition was proper, since the prescriptive period of one year had since passed. Thus, the Supreme Court’s responsibility was to explore the lower court’s decision which sustained the Pipeline Company’s argument that too much time had passed and thus, the plaintiff should not be allowed to add them into the initial lawsuit.

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The U.S. Court of Appeals, Fifth Circuit upheld a District Court ruling in early 2011 allowing a contractor out of a negligence suit following a tragic incident in which a young man was electrocuted while trimming trees. The Court held Defendant Contractor Camp Dresser & McKee, Inc. (CDM) did not have a duty to protect a subcontractor from injury and therefore could not be held negligent. Because there was no contract between the contractor and the tree service subcontractor, the Court held there was no principal-independent contractor relationship that would have formed a duty.

Chad Groover, an employee of Groover Tree Service (GTS), was operating an aerial lift and cutting trees on the morning of December 7, 2006, north of Slidell when the basket he was riding in made contact with an energized line. Groover’s brother, Larry Groover, witnessed the electrocution. Chad Groover was severely injured at the scene and sadly died seven months later from complications. The family of the deceased brought a negligence action against several defendants, including the contractor CDM, a CDM worksite monitor, and CDM’s insurers, Zurich American Insurance Company and ACE American Insurance Company. The suit alleged CDM’s negligence caused Larry Groover to suffer mental anguish when he witnessed his brother’s death.

Proving negligence requires proof that the negligent party owed a duty to the injured party. Duty implies a special relationship or can be established by law. The Defendants filed motions for summary judgment arguing they did not have a legal duty to protect Chad Groover from injury. Plaintiffs averred in a cross motion for partial summary judgment Defendants had a statutorily provided duty to have the power company de-energize the lines.

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