On February 1, 2019, a Louisiana federal court judge awarded an injured construction worker $3.3 million, finding that, during equipment transfers between boats and barges, the practice of keeping vessels together by using the power of the boat’s engine instead of securing the vessels with mooring lines equates to negligence.

This case highlights a common client concern: What bad habits or corner-cutting tendencies exist within my company’s operations that seem opportunistic in the short-term, but ultimately unnecessarily increase exposure and prove more costly in the long-term? In the recent Louisiana case, it was the simple practice of not tying two vessels together during equipment transfers despite the vessels being outfitted for that very purpose. This multi-million award demonstrates how the captain may have perceived the false economy of saving on inexpensive mooring lines and avoiding the time needed for a deckhand to tie off the vessels. Analogous, yet preventable, shortfalls in safety practice can create exposure not only for vessel owners and operators like those involved in this recent case, but also for marine insurance providers, other offshore services providers, and indeed virtually any business with large-scale field operations, whether land-based or offshore.

Case Details
This case involved Jones Act and Longshore and Harbor Workers’ Compensation Act (LHWCA) claims brought by a 22-year-old construction worker, Devin Barrios, who was injured while transferring a portable generator from a boat to a barge. While the barge was equipped with the necessary bits to receive mooring lines from the vessel, the crew boat captain was using the “twin screwing” method whereby he attempted to hold the vessel against the barge using the thrust of the engines alone. The worker was straddling the two vessels when the vessels unexpectedly separated, the worker fell into the water, and the 150+ pound generator fell on him. He required 28 head staples and a relatively common back surgery, was further diagnosed with a mild traumatic brain injury, and was found to possibly need future surgery. It is not difficult to imagine how the injuries could have been more serious.

After a one-week bench trial, the judge awarded $3.3 million – including past and future medicals of $875,000, past and future lost wages and earnings of $1.2 million (as a previous wage earner of $25,000 annually), past and future general damages of $975,000, and loss of consortium damages of $250,000—a fairly sizable award considering the past medicals only amounted to $290,000. Other acts of alleged negligence by both Plaintiff and Defendant were considered by the court (i.e., insufficiency of crew members, failure to use a crane for the equipment transfer, failure to perform a job safety analysis, failure to train employees on proper lifting techniques, failure of Plaintiff to properly wear his hard hat, and Plaintiff’s own practice of straddling the vessels during such operations). However, the court focused on the simple neglect associated with the method by which the vessels were secured to one another during the operation. The court considered evidence that Defendant had no policy requiring the tying off of vessels during equipment transfers, and that this practice had been previously allowed by the captain (and was previously successfully completed). This decision will certainly be referenced by future Fifth Circuit cases involving incidents during vessel transfers and general loading/unloading operations along Texas, Louisiana, and Mississippi coastlines and waterways.

Of note, companies employing seamen or longshoremen in maritime operations must understand the unique nature whereby the Jones Act and LHWCA provide special rights and remedies not accorded to other workers. Commonly characterized as employee-friendly laws, the Jones Act and LHWCA extend specific rights and remedies intended to sufficiently protect these uniquely positioned workers, yet often lead to excessive verdicts and frivolous lawsuits. The LHWCA provides compensation in lieu of tort damages for a class of land-based workers who perform a variety of tasks for, on, and around vessels, and it requires employers to provide compensation irrespective of fault for the accidental injury or death arising out of a covered worker’s employment. The Jones Act provides an injured seaman a right to sue his employer for negligence, unseaworthiness of the vessel, and maintenance and cure, and a right to sue the ship owner for unseaworthiness. The employer’s obligation to pay maintenance (effectively a food and lodging stipend) and cure (medical bills) is generally owed regardless of any negligence or fault on the part of the seaman or employer. The LHWCA and Jones Act often surprise employers and are particular statutes which highlight the need to eliminate shortfalls in safety practices to prevent runaway or improper exposure.

Takeaway
An important takeaway is that operational safety procedures and practices must periodically be evaluated for effectiveness in preventing bad habits and corner cutting. The evaluation needs to occur at all levels of management and within inter-organizational operations wherein one company’s culture, procedures, and practices are forced to interact with those of another company. In the Barrios case, the simple practice of mooring vessels together during equipment transfers could have prevented this incident entirely. The false economy potentially perceived by the captain could have been altogether avoided by an evaluation of and simple correction to the equipment transfer practice. The effort involved in periodically reviewing company operational safety practices and procedures will not only help ensure best practices (both in policy and application), but will also pay financial dividends through a reduction in costly accidents.

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