Articles Posted in Maritime Injuries

Thousands of Alaskans, including the attorneys at the Alaska Personal Injury Law Group, are awaiting the United States Supreme Court’s decision in the Exxon Valdez case, which is set for oral argument on February 27, 2008. In contrast to several punitive damage cases decided by the Supreme Court in recent years, the Court elected not to hear Exxon’s constitutional “due process” challenge to the now $2.5 billion (plus interest) punitive damage award. The Court instead limited its review of the Ninth Circuit decision to whether the punitive damage award violates federal maritime law or is inconsistent with the Clean Water Act. Regarding the maritime issue, Exxon asserts there is a longstanding common law maritime rule prohibiting the award of punitive damages against a ship owner based on the conduct of a ship’s master. The historic rationale for this asserted rule, according to Exxon, is that a ship’s master must make prompt unilateral decisions without consultation with his far-off superiors and it would be unfair to make the vessel owner responsible for the master’s independent reckless conduct. While this rationale may have made sense 100 or 200 years ago, it makes little sense today when communications with a modern commercial vessel are equivalent to communications with a distant land-based commercial operation. If a New York company is responsible for the reckless conduct of its managers at California manufacturing plant, there is no reason why a Houston shipping company should not be responsible for the reckless conduct of its master operating a modern supertanker in Alaska. It will be interesting to see whether the United States Supreme Court thinks the rule advocated by Exxon makes sense today in an age of instant electronic communcation.

I finally wanted to note that Justice Alito recused himself from the Exxon appeal because he owns stock in Exxon. Because a tie goes to the appellee (the plaintiffs here), Exxon will now have to find five votes from the eight remaining justices to overturn the Ninth Circuit decision.

Exxon’s Appeal Brief

While cargo barges may be “unmanned” while under tow, longshoremen and seamen often go aboard “unmanned” barges for loading, unloading and other purposes. Federal regulation 46 C.R.F. § 92.25-5 requires that cargo barges have a three-course perimeter safety railing. The Coast Guard, however, has failed to enforce that regulation, stating without explanation in its Marine Safety Manual that such barges are totally exempt from the railing requirement. In a lawsuit I am handling, a longshoreman working on a cargo barge equipped with only a two-course safety railing fell between the two courses (exactly where the third course should have been) and was crushed and badly injured when the barge surged back against the dock. In an important recent decision, the Ninth Circuit agreed with us that the Coast Guard’s manual is inconsistent with the regulation; that the express terms of the regulation controls; and that the barge was in violation of the regulation. Abruska v. Northland Vessel Leasing Co., 2007 WL 4328834. This is an important ruling, not only for my client, but for everyone who has to work aboard cargo barges, often in dark, rough or inclement conditions.