$1,100,000 – Man Overboard

Award Amount: $1,100,000

Location: Boston, Massachusetts

Admiralty

Seamen claim injuries after ‘man overboard’ drill

Amount of Settlement: $1.1 million ($902,000 plus $201,000)

Injuries alleged: Post Traumatic Stress Disorder

Name of case: Brooks & Laliberte v. Woods Hole Steamship Authority

Court/case#: U.S. District Court, No.:05-11224-MLW

Tried before judge or jury: N/A(settled)

Name of Judge: Mark L. Wolf

Special Damages: $400,000($325,000 plus $175,000)

Amount of Settlement: $1.1 million ($902,000 plus $201,000)

Date: August 29, 2007

Demand: $1.65 million($1 million plus $650,000)

Highest offer: $1.1 million

Attorneys: David F. Anderson and Carolyn M. Latti, Latti & Anderson LLP, Boston (for the plaintiff)

Two seamen, members of the crew of the M/V Islander in the summer of 2004, brought claims under the Jones Act and federal maritime law after they were injured during a lifeboat drill while employed by the defendant.

The U.S. Coast Guard was conducting safety drills that included a “man overboard” drill. Upon commencement of the drill, the two plaintiffs got into a rescue boat and were lowered over the side of the ferry about 4 feet above the waterline. When the ferry came to a stop, the rescue boat was lowered into the water and the plaintiffs started to disconnect it from ferry. As they were doing so, the ferry unexpectedly started backing down, dragging the rescue boat and causing it to swamp and capsize, throwing the plaintiffs into the water.

As the ferry continued to back down, a line attached to the capsized rescue boat wrapped around the first plaintiff’s leg, pulled him under and dragged him upside down underwater 400 feet until the ferry came to a stop. The second plaintiff was picked up by a small passenger launch that happened to be traveling through the area. The passenger launch then chased down the ferry, which had finally coming to a stop.

On arriving at the ferry, the second plaintiff jumped back into the water and hauled the first plaintiff onto the passenger launch. Other than stopping the ferry, none of the defendant personnel or Coast Guard personnel did anything to rescue the first plaintiff.

The first plaintiff’s lungs were full of seawater; he was not breathing and had no heartbeat. The second plaintiff administered CPR and was able to bring the first plaintiff back to life.

As a result of the incident, both plaintiffs were diagnosed with and received psychiatric treatment for post-traumatic stress disorder. Both plaintiffs claimed that, because of the PTSD, they were permanently disabled from employment as seaman.

During post-accident investigations and discovery, it became clear that the ferry crew was unaware that the captain planned to back down the vessel prior to launching the rescue boat. Further, the captain forgot to have his radio with him at the time of the drill, so once the rescue boat capsized, there was a substantial delay in getting the ferry to stop.

The plaintiffs asserted that the defendant’s captain was negligent in failing to adequately train the crew and in forgetting to keep his radio with him. The plaintiffs also alleged that the defendant failed to comply with U.S. Coast Guard regulations requiring a vessel operator to prepare and distribute to the crew written plans detailing the specific procedures to be employed in a variety of emergency situations, including a “man overboard.”

Under maritime law, proof of a Coast Guard violation eliminates the defense of contributory negligence.

The defendant alleged that the first plaintiff was contributorily negligent for failing to properly secure his life vest and the second plaintiff was negligent for failing to immediately disconnect the rescue boat once it was placed in the water.

The defendant’s expert psychiatrist alleged that the second plaintiff was intentionally fabricating his PTSD. The defendant would have introduced evidence that at the time of the incident, the plaintiff was coming off a 30-day suspension for misconduct, that he had a long history of misconduct at work and that he was about to be fired.

The defendant’s expert psychiatrist opined that the first plaintiff did suffer from PTSD but that it was improving and he was capable of shore-based employment.

U.S. District Court Judge Mark L. Wolf held a settlement conference two weeks before the scheduled trial. Both cases settled several days later for $902,000 for the first plaintiff and $201,000 for the second plaintiff. The amounts included payments of the plaintiffs’ medical bills by the defendant.

Massachusetts Lawyers Weekly, February 4, 2008

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