Offshore Accidents

July 9, 2011

Maritime and Industry Injury Cases Quite Complex

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.

July 3, 2011

On-the-Job Injury at Sea: The Jones Act, Employer Negligence, and Claims for Unseaworthiness

by Berniard Law Firm

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.

June 14, 2011

Explosion at New Iberia Chemical Plant Leads to Mass Evacuation

by Berniard Law Firm

An explosion at the Multi-Chem Corporation chemical plant, followed by a series of smaller ones, has led to an evacuation of the area’s residents. Preliminary reports indicate that no injuries have taken place but it will take some time before a full understanding of the incident is known. The company, which creates oilfield product chemicals, still does not know the full details of the incident. That another explosion has taken place, with the Dow Hahnville incident still in recent memory, leads to a lot of questions regarding the safety standards and practices being utilized at these facilities.

The Associated Press reports that the incident, which appears to have first begun at 4 pm today, featured a significant explosion that could be heard from more than a mile away. The incident led to a one mile radius surrounding the plant being evacuated as all plant employees are accounted for. While the State Police say no one was injured in the incident, previous chemical releases have proven that only after some time are the full effects of an explosion known.

A Multi-Chem Group in Houston spokesman says that the company is still in its exploratory phase and will provide details when they are available. Information is still scarce at this time but we will update this blog as it is available.

June 14, 2011

Breaking News: New Iberia Chemical Plant Explosion Leads to Area Evacuations

by Berniard Law Firm

Reports are coming in that an explosion has taken place at the New Iberia chemical plant, leading to an immediate evacuation of residents in the area and plant personnel.

More information will be provided as it becomes available.

May 12, 2011

Louisiana Department of Wildlife and Fisheries, Department of Transportation and Development Found Liable for Natchitoches Parish Drowning

by Berniard Law Firm

In a ruling by the Third Circuit Court of Appeal for the State of Louisiana, the Louisiana Department of Wildlife and Fisheries (LDWF) and the Department of Transportation and Development (DOTD) were found jointly liable for $3.9 million to Vanna McManus and her children, the survivors of a man who drowned at Chivery Dam in Natchitoches Parish.

The deceased, Hugh McManus, was fishing with his friend Stanley Neal at the 70-year-old Chivery Dam in Mr. Neal’s boat. They pulled up close to the dam, killed the motor, and began throwing cast nets. The pair believed that the current in the nearby Saline Bayou would cause them to drift back downstream, but because of water coming over the dam and how close they were when they stopped, they were actually pulled toward the dam. The two men did not notice this until the boat bumped against the dam and began filling with water. The pair abandoned the boat without securing their life vests. Mr. Neal was able to make it to shore by walking on top of the dam, but Mr. McManus drowned. There were no warning signs posted anywhere near the dam announcing that approaching within a certain number of feet was dangerous.

A Natchitoches Parish jury found in favor of the plaintiffs and awarded them $3,880,965.95, with 25% of the fault allocated to LDWF (which owned the dam) and 75% to DOTD (which inspected and maintained the dam). The State of Louisiana appealed, claiming that the jury erred in finding that DOTD and LDWF were liable to the plaintiffs and that DOTD had a legal duty to warn of the alleged dangerous condition that caused Mr. McManus’ death. The jury also concluded that DOTD willfully or maliciously failed to warn against a dangerous condition under La. R.S. 9:2795 and that a dangerous condition existed at Chivery Dam at the time of the accident and that DOTD and/of LDWF had constructive notice of it.

May 8, 2011

The Effect of Statutory Employee Status on a Claim for Injury on the Job

by Berniard Law Firm

The health and safety of workers is a pressing concern for both employees and employers alike. When an injury occurs at a job site, many questions arise as to the care of the injured and the responsibility of the employer in regard to that care. As an employee, the question of who pays for the care that may become necessary in the immediate, as well as into the future, is of prominent concern. Also, an injured employee may ask what level of responsibility their employer is held to for the circumstances of the accident and how they can receive compensation for health and living expenses resulting from any injury. What some employees may overlook is that their employment status can often dictate the means and method by which they will be able to recover should a lawsuit become necessary.

The importance of a contract between the employer and the employee who wish to have their relationship classified as statutory cannot be overstated. The recent Louisiana Court of Appeals case out of the Parish of Beauregard, Tilley v. Boise Cascade Corp., illustrates how one’s employment status under the law can affect the outcome of a claim for compensation after injury. Tilley, an employee of the BE & K Construction Company, was contracted to work for a Boise Cascade Corp. owned paper mill. While performing work at a machine in the mill, Tilley was sprayed by a scalding liquid and suffered injury. Tilley’s contract to work had expired six days prior to the accident.

Tilley filed suit. Soon after, Boise Cascade Corp. claimed immunity under Louisiana Workers’ Compensation Act Title 23 § 1061, arguing that Tilley was a statutory employee who was only entitled to workers compensation benefits and was not entitled to file suit. Hinging their decision on the contract, the Court of Appeals held that the Boise Cascade failed to prove with any certainty that Tilley’s contract had been extended. Therefore, Tilley was not a statutory employee at the time of the accident and she was free to move forward with her suit.

May 6, 2011

Court Clarifies Duty of Ambulance Dispatcher in Dropped 911 Call

by Berniard Law Firm

When a caller dials 911 to report an emergency, it is not uncommon for the operator to transfer the caller to the local service provider that is best suited to respond to the incident. For instance, a caller who reports an auto accident can expect to be connected with the nearest ambulance service. In the case of Willis v. Rapides Parish Communications District, the Third Circuit Court of Appeal examined the duty owed by an ambulance dispatcher when a transfer does not go through.

Johnny Willis was involved in a single-car accident on La. Hwy. 488 just outside of Oak Hill. The crash was discovered by a passer-by, Shirley Ponthieux, who called 911. The operator for the Rapides Parish Communications District (RPCD) answered her call, contacted the fire department, and then attempted to transfer her directly to Acadian Ambulance because of another incoming call. The operator did not think that taking the other call would affect the transfer, but in fact it failed and Ponthieux was cut off. Because of the phone confusion and because the fire department could not obtain a cellular signal to call Acadia Ambulance when it arrived on the scene, an ambulance did not arrive until approximately an hour later. Sadly, Mr. Willis died at the hospital. His wife, Carleen Willis, filed suit against RPCD and Acadian Ambulance. Her claim against Acadian cited its failure to “receive and respond to the emergency transmission” and that it “failed to establish and utilize a reliable communications system for the receipt of emergency transmissions.” The trial judge granted Acadian Ambulance’s motion for summary judgment, holding that it does not owe a duty to an accident victim until it actually receives a call requesting ambulance service.

On appeal, Willis argued that Acadian Ambulance owed a duty to her husband to properly advise the RPCD of how to communicate with its dispatcher. Further, she cited a letter that Acadian had previously sent to the 911 office in Rankin County, Mississippi that explained the procedures that the 911 operators were to follow. Namely, an operator should remain on the line until Acadian Ambulance answered the call in order for the transfer to be completed, and further should briefly inform the Acadian Ambulance dispatcher of the nature of the call before disconnecting. The court disagreed that the lack of a similar letter to RPCD indicated Acadian’s failure to exercise reasonable care. In fact, the court could point to “no statutory or jurisprudential principles that support the imposition of [a] duty” on Acadian Ambulance “to properly train the employees of the RPCD in the use of the RPCD equipment to communicate with Acadian Ambulance.” Imposing such a duty, in the view of the court, would be inappropriate under the duty-risk analysis favored by the Louisiana Supreme Court. As soon as the Acadian dispatcher actually received a call that an ambulance was needed, he promptly sent one; this met the duty imposed under the law. Accordingly, the court affirmed the trial court’s dismissal of Acadian Ambulance from the case.

May 2, 2011

Oil Pump Injury Demonstrates Limits of Liability for Child’s Injury

by Berniard Law Firm

Over the course of the last century, products liability law has become more detailed and specific in terms of protecting consumers from injury caused by products. If a product is found to be defective, in most cases any sellers along the chain of sale can be held liable. This means that, from the manufacturers to the retailer, all parties can be held liable if damage is caused by a product. The reason for this trend in the law is to give the benefit of the doubt to the consumer because the consumer needs protection. Further, stricter laws force manufacturers to produce better products. If they know that a defective product could potentially results in a multi-million dollar law suit, they will make sure the products they produce are safe.

This protection is especially true as it pertains to young children. Because children have less experience in life, there is a higher chance that they can make a mistake which would be unreasonable to make if it were an adult. However, even the law does not extend such benefits fully to all actions by children and teenagers. In a recent case, Payne v. Gardner, the Louisiana Supreme Court identified a point at which even a teenager could not be protected.

In 2004, in Rapides Parish, Henry Goudeau was playing around an oil well pump. The oil well pumps on oil wells move back and forth like a pendulum. As Henry was playing around the oil well pump, he noticed the movement of the pump and decided to use the pump as a pendulum type swing for recreational purposes. Afer he jumped on the pump when it reached its highest point, his leg got caught in another part of the pump which unfortunately lead Henry to be seriously injured. Henry’s mother decided to sue the manufacturer of the pump, Lufkin Industries. A serious battle arose as to whom the blame should fall upon. Should Lufkin have know that their pumps would be used as a ride? Should Henry have used better care in making a determination of whether it was safe to ride on the pump?

April 20, 2011

Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification (Part 2)

by Berniard Law Firm

In our last post, we explored the basic elements of class action certification, including the rules that guide a trial court’s decision on whether to grant the certification. Although the trial court is granted wide discretion on this question, it must reach its decision through serious analysis; the failure to substantiate its analysis can result in reversal by the appellate court as illustrated in the recent case, Madison v. Chalmette Refining LLC. On January 12, 2007, a group of students, teachers, and parent chaperones visited the Chalmette National Battlefield. During a historical reenactment, the nearby Chalmette Refinery released a significant amount of petroleum coke dust that was carried to the battlefield area. Five individuals (the “Plaintiffs”) filed suit in federal court against Chalmette Refining, demanding compensation for a variety of damages including “including personal injury, fear, anguish, discomfort, inconvenience, pain and suffering, emotional distress, psychiatric and psychological damages, evacuation, economic damages, and property damages.” The suit sought to represent all individuals who were exposed to the coke dust, specifically:

“all persons entities [sic] located at the Chalmette National Battlefield in St. Bernard Parish, Louisiana, in the early afternoon of Friday, January 12, 2007 and who sustained property damage, personal injuries, emotional, mental, or economic damages and/or inconvenience or evacuation as a result of the incident.”

The district court allowed the parties to conduct discovery on the issue of class certification. Chalmette Refining took the deposition of each of the five named class representatives, yet the Plaintiffs conducted no discovery at all. At the hearing on the motion to certify the class, no evidence was introduced; at the conclusion, the district court orally granted the Plaintiffs’ motion for class certification.

April 18, 2011

Chemical Release at Chalmette Refinery Results in Battle Over Class Action Certification

by Berniard Law Firm

In this post, we will explore the basic concepts of a class action lawsuit. In particular, we will examine the rules that govern the process by which the court decides whether to recognize a class and permit a group of plaintiffs to litigate under one single action. In a subsequent post, we will examine a recent case from the Fifth Circuit Court of Appeals in which the defendant, a petroleum refinery, challenged the district court’s certification of a class of plaintiffs following a chemical release in Chalmette, Louisiana.

A class action is appropriate when numerous plaintiffs who have experienced similar harm collectively bring a suit against the defendant. For actions filed in federal court, Rule 23 of the Federal Rules of Civil Procedure sets out the requirements for a court to certify, or recognize, a class in a particular case. The four central prerequisites include:

(1) numerosity–a sufficient number of plaintiffs that for each to bring a unique suit is impracticable; (2) commonality–questions of law or fact are common to each plaintiff; (3) typicality–the named parties’ claims are representative of those of all plaintiffs; and (4) adequacy of representation–the class representatives will fairly and adequately protect the interests of all plaintiffs.