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Discovery Bay Reckless Operator: Maritime Law, Not State Law Best Path For Punitive Damages Award

Tue, 24 Jun 2025 19:30:46 GMT

Recently, June 2025, an apparently drugged-out operator dangerously drove a cabin cruiser into a marina at Discovery Bay, California, striking a paddle surfer and causing damage to several moored vessels. Judging from the video, the vessel was doing about 25 miles per hour in a 5-mile per hour zone, throwing a nasty wake.

Because the conduct occurred upon navigable waters, claimants have the option of suing in either Federal Court, which has jurisdiction pursuant to 28 U.S.C., §1333 or suing in the Superior Court for Contra Costa County pursuant to California Civil Code, §1714. Suing in state court would be the better choice because:

the claimant, now plaintiff, can use maritime law (Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); followed, DeRoche v. Commodore Cruise Line, Ltd., (1994)31 Cal. App. 4th 802, 807.) and have the right to trial by jury; whereas, filing in federal court would allow the defense to argue that the suit is one falling under admiralty laws (a subdivision of maritime law), and there is no right to a jury in admiralty law. (The Seventh Amendment to the United States Constitution only guarantees a jury trial in matters of common law, which admiralty law is not.)
The California law standard to prove the right to punitive damage award is much stricter than maritime law. The California standard is, “ . . . [proof] by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice . . .”; whereas, the maritime standard is, “ . . . punitive damages are allowable under federal maritime law and are awarded under a preponderance of the evidence standard of proof. (See In re Exxon Valdez 270 F.3d 1215, 1226, 1232(9th Cir. 2001)” quoted by Colombo v. BRP US Inc. (2014), 230 Cal. App. 4th 1442, 1456. The Columbo Court further explains:

an award of punitive damages under federal maritime law can be based on mere reckless conduct or gross negligence. [Footnote 8] See, e.g., Exxon Shipping Co. v. Baker(2008) 554 U.S. 471, 493 [171 L. Ed. 2d 570, 128 S. Ct. 2605] (Exxon) [explaining an award of punitive damages in federal maritime cases may be based on mere reckless conduct that is worse than negligence, but “is not intentional or malicious, nor is it necessarily callous toward the risk of harming others, as opposed to unheedful of it”]

Columbo, at 1456.

Preponderance of evidence versus clear and convincing? Oppression, fraud, or malice versus mere reckless conduct or gross negligence? The choice is clear, Contra Costa Superior Court.

Recently Berschler Associates, PC convinced a set of reckless pleasure boat operators/owners to pay tens of thousands of dollars of their private money in addition to their insurance company paying all of the large policy in settlement, not in trial – in settlement. This result probably could not have been achieved by even the best non-maritime attorneys because they do not know the law and they do not know how to put convincing evidence and proper liability experts together to create a forceful, truthful, persuasive case.

Classic Case Of Unseaworthiness

Thu, 29 May 2025 23:10:05 GMT

Classic Case of Unseaworthiness

A wooden sailboat owned by the Sea Scout Ship Viking sailing club, part of the San Francisco Sea Scouts organization, capsized in San Francisco Bay, not once but twice. The vessel, part of the San Francisco Bay Master Mariners Regatta, lost its rudder control. the sailors were able to right it on their own. Not a matter of negligence, presumably the club had checked the vessel's operating and navigation systems thoroughly. It is a matter of unseaworthiness though. The general maritime law Doctrine of Seaworthiness , not negligence is the original tort theory applicable to failure of engines, gear, tackle and appurtenances. The Doctrine originated in England in the Merchants' Shipping Act of 1876 and was recognized by the Supreme Court in its decision in The Oceola, 189 U.S. 158. There is no need to prove notice and the condition can be transitory, such as a slippery deck. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 545, 80 S. Ct. 926, 930 (1960).

Proud To Be A Decades Long Member of Capital City Trial Lawyers

Wed, 28 May 2025 20:36:27 GMT

Jones Act Seafarers Injured in Firey Collision: Where Can Claims Be Brought

Mon, 10 Mar 2025 18:52:00 GMT

Jones Act seafarers ought to act quickly to protect their claims arising out of the collision between the tanker vessel m/t STENA IMMACULATE and Portuguese freighter m/v SOLONG, owned by German company Reederei Koepping, in the North sea near Hull in East Yorkshire, England, UK on March 10, 2025.

Because the tanker was chartered by Crowley Shipping, a division of Crowley Maritime that is headquartered in Florida and incorporated in Delaware, the Jones Act seafarers employed by Crowley could sue their employer in Florida, Delaware or any place in the United States where Crowley and the mariner’s contacts were sufficiently strong.

Yet, what about the responsibility of the SOLONG? Will its liability be decided in the United Kingdom, Germany, Portugal or the United States? Probably various claims and litigation will arise in more than one country and likely each vessel’s interests now has begun thinking about how to manage the claims or lawsuits, possibly through one or two coordinated legal actions addressing all claims at once.

Were Crowley able to secure jurisdiction over the vessel or its owner or its operator in the United States, a direct legal control could be through the Limitation of Liability Act of 1851, codified as 46 U.S.C. § 30523. Such a proceeding would allow the Jones Act seafarers to put their claims against their employer, the owner or owner pro hac vice of the STENA IMMACULATE and against the owners and operators of the SOLONG into a single legal action while also enabling Crowley to address its own damage claims against the SOLONG and its interests.

Nevertheless, it appears that the collision occurred in English waters and the admiralty jurisdiction of the United Kingdom will be the situs of litigation.

Crowley might take a tactical move of preemptively reaching out to the inured seafarers it employed, obtaining quick settlements that would allow Crowley to seek indemnity (reimbursement) from the SOLLANO interests.

Donuts, Anyone?

Tue, 27 Aug 2024 21:17:31 GMT

One of the most stimulating aspects of litigating the maritime law is the prevalence of judge-made law(case law). Another feature is encountering foolish acts by recreational boat operators doing things they would not dream of doing when driving a vehicle or riding a bike. Recently viral was a video of a whale breaching then slamming down upon a boat that got too close off Rye, New Hampshire. No one hurt there. However, Berschler Associates, PC recently achieved justice for a passenger severely injured when the driver of the speedboat decided it would be fun to initiate a ”sideshow,” doing donuts in the water.

A key feature of this case was the issue of punitive damage exposure. Could our client punish the driver financially for being reckless? Under state law, our client would have to prove malice to support punitive damages. “malice” in state law requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to “despicable conduct” and that such despicable conduct was carried on with a “willful and conscious disregard” of the rights or safety of others. (Civil Code section 3294(c)(1); College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.) Berschler Associates avoided that “dead end”: by invoking the General Maritime Law (“GML”) pursuant to 28 U.S.C., §133(1) [The “Savings to Suitors” clause allowing state courts jurisdiction to try certain maritime claims.] In Exxon Shipping Co. v. Baker , 554 U.S. 471 (2008), the U.S. Supreme Court discussed the long history of punitive damage being available under the GML.

Our client’s challenge was to prove by a preponderance of the evidence that the driver was indeed reckless, not merely negligent. We have a video clip of the boat at speed and knew of its make and model from which we obtained specifications of build and performance from the manufacturer. Using these, our expert was able to “reverse engineer” to determine speeds, turning radius and G-forces. As seen in the diagram below, we established the speedboat was traveling 49.6 mph when it hit a wake of another boat also “donuting” in unison. The G-force created was ~4.9 upon the passengers, one of whom was thrown into our client. Reckless enough for you? Everyone in the case thought so, too.

Success in litigation is a product of hard work and thinking outside the box.

The Curious Case of Boggy vs. Foggy

Tue, 02 May 2023 22:33:59 GMT

“Act in haste. Repent at leisure.” Hon. William Congreve, 1692.

In October 2000, the USS Cole [i] was attacked by suicide bombers detonating an explosive laden small craft they managed to steer alongside the Cole. Since then, under certain conditions, the United States has required physical security perimeters be set outboard of its vessels, including those at repair facilities in the United States. Typically, those conditions are triggered by a rise in the applicable National Terrorism Advisory System (NTAS) threat assessment level. The missteps in this case arise out of such an increased threat level. That change gave Berschler Associates the opportunity to consult with, then associate with a workers compensation attorney who had found themselves in legal waters too deep for them.

A defense contractor marine repair facility (“Yard”) was renewing the weather decks of the Navy’s cutter, USS Vincent Price . On a sunny Friday afternoon in May, NTAS threat level increased substantially. The Navy notified Yard to establish either a barrier or manned patrol ASAP, and within 36 hours. Good luck! No barriers were available in time. Fortunately, the Yard had a good working relationship with another adjacent yard Friendly Repairs, Inc. (“Friendly”), which both had a contract with a private security firm, Done & Done (“DoDo”), that employed guards certified and licensed to carry arms pursuant to California Code of Regulations, Title 16, Division 7 as well as access to a small craft owned by Friendly’s sibling company, Strand & Edward, LLC (“StrandEd”). Friendly pulled together a solution for Yards: Friendly would bareboat charter the small craft, m/v Watch Out, from StrandEd, then contracted with DoDo for it to rotate armed guards to patrol offshore of the Vincent Price aboard Watch Out, 24/7. However, margins being margins and the Navy contract not providing much leeway for increased security, Yard insisted on a per diem cap, which caused Friendly to provide a single guard per shift. No second person aboard Watch Out. No formal contract was created, the agreements being memorialized by emails, invoices, and receipts.

The Yard, hence, the Vincent Price , were located on a river that fed into a large bay that itself opened into the ocean. DoDo’s guard, I. M. Armed, was the best DoDo had; prior decades long service in law enforcement, retired. Guard Armed typically worked for DoDo ashore for years. He was assigned from shoreside work to guard the Vincent Price , assigned to the 2200-0600 shift. Unfortunately, he could not swim and had only been aboard a small outboard motorboat once or twice as a teenager. Friendly, not DoDo, gave Armed 15 minutes of vessel orientation, Sure enough, a few weeks after the patrols began, on a dark and stormy night, the Watch Out swamped being ill-suited to the swift current. Guard Armed inflated his life vest, fired a flare, then swam for his life. He had to gain the riverbank before reaching the bay or certainly drown. He made it, sustaining personal injuries which permanently partially disabled him. Yard disturbed by discovering extent of Friendly’s or DoDo’s ineptitude, cancelled its agreement with Friendly, and obtained a barrier to Yard’s loss. Since neither DoDo nor Friendly, nor StrandEd nor Yard could sort out who owed Guard Armed any health care or temporary disability support, neither of them offer such. He hired an attorney which filed for state workers’ compensation benefits. Friendly promptly filed for protection under the Limitation of Liability Act, 46 U.SC. §§ 30501-30512 (LOLA). Consequently, Armed had to both defend and to claim in federal court because the LOLA operated to stay the state proceeding.

Certainly, Armed was entitled to a remedy, but which one[s]? He cross-claimed of DoDo that he either was a Jones Act seafarer (46 U.S.C., §30104), a Sieracki seafarer or a harbor worker entitled to pursue both DoDo and its officers pursuant to the Longshore Harbor Workers Compensation Act , 33 U.S.C., § 905(a). He claimed against Friendly and StrandEd for unseaworthiness and pre-voyage negligence on the theory that they were co-venturers, alternately that Friendly was the owner pro hac vice of Watch Out. Armed did not sue Yard, calculating that Yard was as much a victim as he was. Berschler Associates, PC helped I. M. Armed to recover a full compensation.

[i] All other names have been changed. The core facts have not been changed.

Two Certificates of Maritime Law

Tue, 04 Apr 2023 18:08:12 GMT

Achievement: Bookmarks on a 5-decade long Admiralty Law Career

Clients Receive Justice

WCAdmin@marketamerica.com (Market America WebCenters) — Wed, 08 Mar 2023 21:42:40 GMT

In a traumatic experience, the typical victim goes into fight, flight, or freeze mode. A large approaching vessel pierced our client’s yacht with a long pulpit protruding from the bow which ripped through the cabin. The pulpit hit within feet of where one of our clients was standing. Thankfully, our clients were not hurt physically. However, they suffered substantial emotional injuries, which manifested later.

As the vessel came careening towards their own, our two clients’ thoughts ranged from concern, to fear, to panic. One of our clients feared losing his family on board. Panicked, he tried to save them; ultimately feeling helplessness as he witnessed and felt the impact. His spouse was frozen with fear, as death loomed.

In our earlier blog post, “Seattle Ferry Pier Allison,”(August 15, 2022) we wrote, “Admiralty law is more conservative in the United States on NIED standing…. [a]would-be claimant must either have suffered bodily injury as a result of the event or been in a “zone of danger”; that is to say placed in immediate risk of substantial physical harm or death.

Proving the clients had been psychologically damaged became the focus of this case. After the collision, our clients began demonstrating symptoms of discrete psychological injuries including anxiety, nightmares, and depression. One of our clients had chest pains as a result of these psychological injuries.

The defendant argued to minimize their injuries. We retained a forensic psychologist to document possible evidence of injuries. The expert tested and interviewed. Our expert diagnosed Post Traumatic Stress Disorder (PTSD) and Persistent Depressive Disorder (PDD). The expert concluded that our client would need future care.

After over 200 hours of work, Berschler Associates, PC brought this case to trial in the U.S. District Court. The requirements to qualify for NIED were clearly presented at trial. Given the factual findings the Court made with respect to our clients, each received an award for personal injury damage. Our clients received the justice that they each deserved.

This is one example of how Berschler Associates, PC gets their clients highly compensated for the hidden pain and suffering that is present in significant bodily injuries. Let Berschler Associates, PC help you recognize all of your injuries, and not just some.

DISCLAIMER: While every effort has been made to ensure the accuracy of information provided, it is not intended and should not be considered as legal advice. Individual situations differ and should be discussed with an expert and/or lawyer. Please contact our office if you seek more specific technical or legal advice on the information provided or related topics. Thank you.

Outstanding Win at Trial

Tue, 14 Feb 2023 19:36:13 GMT

Berschler Associates, PC is pleased to announce that it has achieved justice for its plaintiffs in maritime personal injury litigation after a 4-year, long hard battle fought in Federal District Court including trial. We will announce further details in the near future. We wish to express our gratitude for the excellent service of our three experts, including two opining on different aspects of liability and our healthcare expert opining on the extent of injury and need for future care.

INTERESTING ASPECTS OF ADMIRALTY LAW – INTERLOCUTORY APPEALS

Mon, 30 Jan 2023 23:15:43 GMT

Welcome to a series of comments on practice and procedure of admiralty law, also known as the general maritime law.

One of the reasons that admiralty law (28 U.S.C. §1333), as practiced in the federal courts, we find fascinating is the distinct treatment of procedural and substantive law as compared to most state law and even as to most federal question civil cases (28 U.S.C., §1331). These differences are too many to approach in a single blog of “readable” length. Thus, this approach to serial commentary.

Interlocutory appeals are a statutory device that allows the parties and the District Court

a pathway to review of issues, “When a district judge, in making in a civil action an order not otherwise appealable . . . shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, [the Judge] shall so state in writing in such order.” 28 U.S.C.S. § 1292(b). However, the Court of Appeals does not have to accept the matter for appellate review. In short, the right to appeal only exists when all of the case at the trial court level has been reduced to judgment. Typically, When a trial court grants a motion for summary judgment that does not dispose of the entire case, one has to wait for final judgment. Quite often, such circumstances lead to a settlement of the entire action, eliminating the need to appeal.

Admiralty law procedure was and remains different. Before the folding of admiralty courts into the federal general civil court system, the Admiralty court had a pragmatic approach to conserving resources. The approach was to try liability first, then to refer to a commissioner to try damage if the plaintiff prevailed. This approach was procedurally facilitated by Admiralty actions having no right to the right to jury trial granted under Amendment VII of the United States Constitution. “[W]hen the seventh amendment was made as it is now, is conclusive that it was done with reference to suits at common law alone.” Waring v. Clarke , 46 U.S. (5 How.) 441, 460 (1847); United States v. La Vengeance , 3 U.S. (3 Dall.) 297 (1796)[Admiralty action had no right to jury]. Interim judgments at the trial court level became appealable in Admiralty practice, before proceeding to try damage.

"It was a common practice for the admiralty court to determine first the issue of liability and, if it found liability, to refer the parties to a commissioner for the determination of damages. The purpose of sec. 1292(a)(3) was to permit a party found liable to take an immediate appeal from that finding and thereby possibly avoid an oftentimes costly and protracted trial of the damages issue." 9 Moore's Federal Practice par. 110.19[3], at 209-210 (1985).

Seattle-First National Bank v. Bluewater Partnership, 1986 AMC 1296, 1300, 772 F.2d 565 (9th Cir. Wash. September 24, 1985).

Currently, federal civil procedure preserves the right to immediate appeal of a District Court’s granting of partial judgments that do not dispose of all of the case. “ Interlocutory decrees of such district courts . . .determining the rights and liabilities of the parties to admiralty cases . . .” 28 U.S.C.S., §1292(a)(3). When a District Court, sitting in admiralty recently issued partial summary judgments that would have eliminated two of the three parties our clients had sued for damages for negligent infliction of emotional distress (NIED) and wrongful death action, we appealed, on our clients’ instruction, pursuant to 28 U.S., §1292(a)(3) because we felt that lower court had erred, in part, when applying the substantive law in question (bareboat charters, joint venture partnership masquerading as a vessel broker agreement, and the interpretation of physical injury and zone of damager under Consolidated Rail Corporation v. Gottshall , 512 U.S. 532 (1994)). We felt that not only was it important to obtaining justice for our clients, the appeal would be important to the maritime industry generally since some issues had seldom been decided in the United States Court of Appeals or by the Supreme Court.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

114th Newport Beach Christmas Boat Parade

Wed, 14 Dec 2022 23:44:28 GMT

114 ^th Newport Beach Christmas Boat Parade

If you are in Newport Beach this week you will not want to miss this the 114 ^th Newport Beach Christmas Boat Parade. Boats will move through the Newport Harbor showing off their creative and vibrant light displays for 5 consecutive nights. The parade will begin every night December 14- December 18 ^th starting at 6:30PM. The parade will start at the Tip of Lido Isle and move through the harbor. Catch the show at a great viewing spot at the Marina Park, the largest public location to watch the spectacle.

The boat parade also features fireworks launched from the Newport Pier at 6:15 pm on December 14 ^th , and a closing firework set from the Balboa Pier at 9PM on December 18 ^th . Unlike many other boat parades, vessels that can participate include cruisers, canoes, and kayaks. This parade has given Newport a positive reputation as a festive and exciting holiday destination.

Southern California has a large maritime region and Berschler Associates, PC has had the pleasure to work with many different people who reside there. We are happy to share the festive offerings of our neighbors and continue to contribute and unify our community through upcoming holiday festivities. For more information visit https://christmasparadeboats.com .

Seattle Christmas Boat Parade 2022

Wed, 14 Dec 2022 00:09:12 GMT

Seas the day! The Seattle Christmas Boat Parade will be held on December 17, 2022 and start at 7:00PM. The parade will begin in the front of the Fremont Tugboats, just East of the Aurora Bridge, directly across from the Morrison’s Full Dock and will make a full loop back around Lake Union clockwise.

This is a judged event. Categories include Best in Show (People’s Choice Award), Best Santa & Reindeer theme, Best & Biggest Christmas Tree and Light Theme, Best Christmas Snowman (Winter Wonderland Theme), and the Most Overall Christmas Lights (Brightest and Most Colorful Boat in the Parade)

This event is also sponsoring a toy drive for Seattle Children’s Hospital. Ballard’s West Marine store (1400 NW 45 ^th Street) will be collecting new toys for Seattle Children's Hospital and registering vessels for the parade this Thursday and Friday. To donate, please bring unwrapped gifts to West Marine from 8:00 AM – 6:00 PM.

Some of the best views of this year’s parade will be at Gar Works Park, where there is a grassy patch to relax and enjoy the show. Be sure to bring a jacket to stay warm!

Berschler Associates, PC (Berschler) shares this event to encourage participation in our maritime community and to bring us together this holiday season. Berschler serves the Seattle area with our sister firm Berschler & Draluck.

Berschler and Berschler & Draluck wish you a wonderful holiday and a boat-a-ful new year!

For more information: parade@seattlechristmasboatparade.com

San Rafael Canal 2022 Lighted Boat Parade

Mon, 12 Dec 2022 23:23:13 GMT

We’re all a-boat a good time! Berschler Associates, PC is excited to share an opportunity to spectate a holiday tradition since 1966 in the San Rafael Canal. On Saturday, December 17, 2022, from 6:00PM- 9:00 PM, festively decorated boats will cruise down a sea-nic route from the east end of the canal near the Marin Yacht Club and Pickleweed Park, turn around behind the Montecito Shopping Center and return to the start. The Montecito Mall, San Rafael Yacht Club, and Pickleweed Park are great locations to view the event. The parade has featured Santa Claus with his reindeer sailing down the canal and the San Rafael Police in years past. Boats come from all over the Bay Area to show off their creative and cheerful lights displays. You’re knot going to want to miss this one! Information is posted on Marinyachtclub.com or call 415-453-9366.

St. Francis Yacht Club Lighted Boat Parade

Tue, 06 Dec 2022 19:47:46 GMT

St. Francis Yacht Club Lighted Boat Parade : December 16, 2022

Come see the oldest and largest lighted holiday boat parade in the Bay Area!

Since 1994, the Fisherman’s Wharf Community Benefit District and the St. Francis Yacht Club have come together to put on the oldest and largest lighted holiday boat parade in the San Francisco Bay. On Friday December 16 ^th , 2022, from 6:00-9:00pm come down to San Francisco to enjoy the spectacle. Parade goers can enjoy the views from various locations on the Fisherman’s Wharf including Pier 39, Aquatic Park, Crissy Field, and the Marina Green. The event will happen rain or shine, however less boats may be out on the water if conditions prove unfavorable. If you would like to watch from the Starting Line Room and enjoy a dinner buffet, you may buy tickets and make reservations through St. Francis Yacht Club at STFYC.com. Berschler Associates, PC has been representing seafarers and recreational boaters in the Bay for over 49 years and is proud to call San Francisco our home. We are happy to share festive entertainment for fellow lovers of the maritime community especially during the holiday season.

Oakland and Encinal Yacht Clubs 46th Annual Lighted Yacht Parade

Wed, 30 Nov 2022 23:13:24 GMT

Oakland and Encinal Yacht Clubs 46th Annual Lighted Yacht Parade

This year’s parade will start at 5:30 PM on Saturday, December 3 ^rd , 2022. The theme is Holiday Music. Come sea all of the mesmerizing light displays as the vessels travel down the waterway. The parade will begin between Wind River and Fortman Marina’s public pier. Boats will sail down the Alameda side of the estuary past Encinal and Oakland Yacht Clubs. They will then cross to the Oakland side and pass by the Port of Oakland and Scott’s Seafood. Finally, they will turn to pass Grand and Fortman Marinas on the way back to their start at Wind River. This is a judged event with over 35 entries. Captains from around our beloved Bay Area communities will be showing off their creative light displays to kick off the winter holiday season! Jack London Square is a great spot to catch the parade with a number of restaurants that harbor great views of the water. Last but knot least, monetary donations in support of Oakland Firefighters Random Acts and Alameda Community Food Bank can be made through the website. At Berschler Associates, PC, we are honored to be a part of the maritime community and delighted to share this event that fosters kinship and merriment. For more information go to lightedyachtparade.com. Lighted Yacht Parade | 46th Annual Lighted Yacht Parade in Oakland Alameda Estuary 12/3/22 5:30pm

BEWARE OF THE TREATMENT OF STANDING TO SUE FOR NIED DAMAGE UNDER THE GENERAL MARITIME LAW

Wed, 07 Sep 2022 17:39:24 GMT

MSN.com recently reported the harrowing experience of Joseph Azevedo and his adult son, Tommy Azevedo, both of whom had to be rescued by the Boston Harbor Police when their lobster boat tangled its prop on a trapline, then began to sink. At one point the younger Azevedo was trapped inside the vessel cabin when his life vest snagged as the boat went down. He ripped free and survived. We had a very similar case near the Potato Patch region of the Pacific Ocean at the Golden Gate bridge. A vessel used to set Dungeness Crab pots was heading south from Drake’s Bay area in a storm when a 30-foot-tall wave tore through the single level superstructure, blowing the captain and a deckhand out of the space, rolling the vessel over and trapping our client (“Mr. X”). Mr. X tore his raingear free and surfaced just in time to see the captain and deckhand disappear into a trough, never to be seen again. Our client paddled to the Rodeo Beach surf line using a cooler chest lid; being pulled to safety by storm/wave watchers.

Mr. X suffered no real bodily injury, just scrapes on his hands. He was given a lift to where his wife picked him up. He began drinking alcohol excessively to quell nightmares. Within a month he began being abusive to his young children and wife, fortunately there was no physical violence. He referred to us. We suspected there was some emotional disturbance, was able to get him into treatment, where he was diagnosed with PTSD and an Adjustment Disorder. His successful claim for personal injury damage due to negligent infliction of emotional distress (“NIED”) arose under the Jones Act (46 U.S.C., §30104). Whether under the Jones Act or under the court-made general maritime law applicable to passengers and others, the class of persons who qualify to make a NIED claims (“standing to sue”) is far narrower than state law. (As for passengers’ standing, see Sawyer Bros. Inc. v. Island Transporter, LLC, 887 F.3d 23, 36-38 (1st Cir. 2018).) Additionally, the federal case law has not evolved as new diagnoses related to NIED have evolved in the fields of psychology and psychiatry. Consequently, the maritime law’s desire to limit the scope of persons with standing to sue is far narrower that many states allow.

Maritime personal injury claims of NIED are constricted by the United States Supreme Court’s holding in Conrail v. Gottshall , 512 U.S. 532 (1994). The opinion written by Justice Thomas (who has authored several of the Court’s maritime law opinions.) expanded the scope of who has standing to sue to include anyone who was in the “zone of danger”:

[T]he zone of danger test limits recovery for emotional injury

to those plaintiffs who sustain a physical impact as a result of

a defendant's negligent conduct, or who are placed in immediate

risk of physical harm by that conduct. That is, "those within the

zone of danger of physical impact can recover for fright, and

those outside of it cannot."

Id., at 547-48. Before Gottshall , the field of would-be claimants was narrower, restricting the claim to those who sustained bodily impact.

[Under]the physical impact test, a plaintiff seeking damages for

emotional injury stemming from a negligent act must have

contemporaneously sustained a physical impact (no matter how slight)

or injury due to the defendant's conduct.

Ibid. A clear example of this former approach is seen in Gaston v. Flowers Transp., 675 F. Supp. 1036 (E.D. La. 1987). Plaintiff Gaston and his half-brother were deckhands on a barge when a collision threw Plaintiff’s half-brother overboard. Mr. Gaston unsuccessfully tried to rescue his sibling, sustaining bruises in the process. Gaston’s sibling was crushed to death. The United States District Court for the Eastern District of Louisiana held that Plaintiff Gaston could not sue.

Gaston's mental anguish did not arise from fear for his personal welfare,

but from the horror of seeing his half-brother crushed to death. There is

no evidence that Gaston feared for his own safety. . .

Id., At 1037. Note, this decision came before the Gottshall opinion and was prosecuted under a bystander theory.] The trial court’s ruling was affirmed on appeal to the Fifth Circuit: 866 F.2d 816 (5th Cir. 1989)[Bystander issue was a case of first impression in the circuit.]

Contrast the approach of many states including that of California, which generally follows the relative bystander filter established by its Supreme Court in 1998. In Dillon v. Legg , (1968) 68 Cal. 2d 728, the court allowed standing to a mother claiming damage for NIED. She had sustained emotional trauma and physical injury caused by witnessing the death of her child, who was struck and killed by a car negligently driven by defendant motorist. The Dillon court state three factors to be used as filtering devices to rule in or out would-be plaintiffs:

(1) Whether plaintiff was located near the scene of the accident as

contrasted with one who was a distance away from it. (2) Whether

the shock resulted from a direct emotional impact upon plaintiff from

the sensory and contemporaneous observance of the accident, as

contrasted with learning of the accident from others after its occurrence.

(3) Whether plaintiff and the victim were closely related, as contrasted

with an absence of any relationship or the presence of only a distant relationship.

Id. , At 740-741. Other states follow the by-stander approach, some with stronger filters than others, including without limitation North Carolina [Pure bystander, no physical manifestation or impact required. See, J ohnson v. Ruark Obstetrics & Gynecology Assocs., P.A ., 327 N.C. 283, 395 S.E.2d 85 (1990).] Alaska [Pure bystander; see, Tommy's Elbow Room v. Kavorkian, 727 P.2d 1038 (Alaska 1986), which adopted the reasoning of the Dillon court.], Massachusetts [Bystander: requiring physical harm manifested by objective symptomatology. See, Helfman v. Northeastern Univ. , 485 Mass. 308, 327, 149 N.E.3d 758.] (2020), Florida [Without direct physical impact, claimant must show physical manifestation of mental injury; see, Willis v. Gami Golden Glades, LLC , 967 So. 2d 846, 850 (Fla. 2007).]

Mental health providers in the United States over the years have developed standards for uniform diagnoses of mental disorders. These are contained in the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) adding to or deleting or revising as the investigation and understanding of mental disorders progresses. First published in 1952 (DSM-1), the DSM is periodically reviewed and updated. As of 2022 the current publication is DSM-5-TR (fifth edition, text revision: Pub. Amer. Psychiatric Press). In DSM-5-TR, prolonged grief disorder (what Mr. Gaston may have had in combination with diagnosed PTSD) is now recognized as traumatically caused, appearing in the new section, Trauma-and Stressor-Related Disorders . Maritime law is concerned with opening the floodgates of spurious litigation:

The common law restricts recovery for negligent infliction of emotional

distress on the policy grounds of avoiding (1) a potential flood of trivial

suits; (2) the possibility of fraudulent claims that are difficult for judges

and juries to detect; and (3) the specter of unlimited and unpredictable liability.

Conrail v. Gottshall , supra, at 535. Berschler Associates argues that the intense detailed criteria imposed upon the disciplines of mental health providers by the DSM-5-TR in combination with now very effective testing is the best filter for the trivial and the fraudulent, such fears are better more equitably filtered rather that the blunt instrument non-scientific approach of attorney that have given us allegedly “common sense” filters, such as zone of danger (exactly where is that boundary?) or bodily impact (How much? What sort? Is slight enough? Apparently not in 1987; ask Mr. Gaston.) Relying upon such nationally recognized criteria would promote the uniformity that admiralty law regularly speaks of as being a fundamental principle in consideration of court-made law. See, Southern Pacific Co. v. Jensen , 244 U.S. 205 (1917)[“Equally well established is the rule that state statutes may not contravene . . . the general maritime law beyond certain limits. .]; also, see Offshore Logistics v. Tallentire , 477 U.S. 207 (1986)[Uniform application of the Death on the High Seas Act (DOHSA) 46 U.S.C., § § 30301–30308.] in a sense, the Gottschall court also was following the principle of uniformity, reinforcing the need to clarify the general maritime common law on NIED, rather than have each NIED case decided under the local state law where suit had been brought. common-law principles must play a significant role in our decision. See discussion in Conrail v. Gottshall , supra, at 544.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

WHAT ARE “NAVIGABLE WATERS” AND HOW DOES SUCH AFFECT PASSENGERS’ CASES WHETHER IN FLORIDA OR CALIFORNIA.

Tue, 23 Aug 2022 17:23:15 GMT

Destin, FL August 8, 2022 – tour boat passenger allegedly thrown from bow by large wave, sustains sever injury by propeller strike in Choctawhatchee Bay.

Oakland, CA August 15, 2022. Ferry passenger allegedly jumps into San Francisco Bay never to be seen again.

These two events occurred upon “navigable waters” of the United States

”Navigable waters” is a technical term with regulatory definition under the Code of Federal Regulations relative

to the authority of the United States Army Corps. of Engineers. See, 33 CFR, Part 329 - Definition Of Navigable

Waters Of The United States. The general definition is:

Navigable waters of the United States are those waters that are subject to the ebb and flow

of the tide and/or are presently used, or have been used in the past, or may be

susceptible for use to transport interstate or foreign commerce. A determination of

navigability once made, applies laterally over the entire surface of the waterbody,

and is not extinguished by later actions or events

which impede or destroy navigable capacity.

33 CFR, §329.4; see, for context, 33 CFR, §329.1. Other statutory or regulatory definitions exist. For instance,

The Navigable Waters Protection Rule: Definition of “Waters of the United States,” 85 Fed. Reg. 22250–01

(April 21, 2020). Such are not germane to this discussion.

The concept of “Navigable Waters” in the general maritime law is more narrowly defined. For instance:

For admiralty purposes, the concept of "navigability" is generally understood to describe

"a present capability of waters to sustain commercial shipping," or "contemporary navigability

in fact," Livingston v. United States , 627 F.2d 165, 169-70 (8th Cir. 1980). See also

Kaiser Aetna v. United States , 444 U.S. 164, 171-72, 62 L. Ed. 2d 332, 100 S. Ct. 383 [**23]

(noting the varying definitions of "navigable waters" for different contexts);

The Robert W. Parsons, 191 U.S. 17, 26, 48 L. Ed. 73, 24 S. Ct. 8 (1903)("the modern doctrine"

is that "the actual navigability of the waters[] is the test of jurisdiction")

Cunningham v. Dir., OWCP, 377 F.3d 98, 108 (1st Cir. 2004).

Although state law may regulate ferries as common carriers, or tour boats as livery, any personal

injury, estate’s survival or wrongful death claims arising from vessel operations-connected will be

controlled by the general maritime law.

The [United States] District Court was in error in ruling that the governing law in this case

was that of the State of New York. Kermarec was injured aboard a ship upon navigable waters.

It was there that the conduct of which he complained occurred. The legal rights and liabilities

arising from that conduct were therefore within the full reach of the admiralty jurisdiction and

measurable by the standards of maritime law.

Kermarec v. Compagnie Générale Transatlantique , 358 U.S. 625, 628 (1959).

Even in state court-based law suits, admiralty caselaw and federal regulations applicable to the circumstances of

loss will be applied instead of state caselaw or state regulations. California court: Schlessinger v. Holland Am. ,

120 Cal. App. 4th 552, 557, 16 Cal. Rptr. 3d 5, 9 (2004). Florida court: Nicoll v. Magical Cruise Co ., 110 So. 3d 98, 99

(Fla. Dist. Ct. App. 2013).

There are exceptions, which may arise such as when the death occurs within three nautical miles of U.S. territory.

See, Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996)[State law may expand roster of whom may claim].

Additionally, courts may apply state law regulations to marine insurers when such does not interfere with

established admiralty law or the need for nationwide uniformity of law. Wilburn Boat Co. v. Fireman’s Fund

Insurance Co., 348 U.S. 310, 75 S. Ct. 368, 99 L. Ed. 337, 1955 A.M.C. 467 (1955).

What duty does a vessel owner or operator owe to the passenger? The answer is:

We hold that the owner of a ship in navigable waters owes to all who are on board

for purposes not inimical to his legitimate interests the duty of exercising reasonable

care under the circumstances of each case.

Kermarec v. Compagnie Generali Transatlantique , 358 U.S. supra, at 632; emphasis added. In some instances

being aboard a vessel can be the same experience as being ashore (e.g., ballrooms) while walking down a shaky

gangway is much different that walking out of a ballroom.

Therefore, “under the circumstances” results in vast caselaw. A discussion for another day.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

SEATTLE FERRY PIER ALLISION: CONTRASTING TREATMENT OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS UNDER MARITIME LAW AND STATE LAW

Mon, 15 Aug 2022 18:43:02 GMT

On the July 28, 2022 a car ferry crashed into a pier at Port Seattle, the force folded back a portion of the upper level car deck. People seated in their vehicles there feared for their life. One occupant wondering whether the vessel was sinking, others also in great fear. Fortunately, none of these individuals reported any bodily injury. Analyzing these facts in the context of state law are likely to get it wrong because the general maritime law (admiralty law) applies. See, Foremost Ins. Co. v. Richardson , 457 U.S. 668, 675 footnote 5, (1982)[“Not every accident in navigable waters that might disrupt maritime commerce will support federal admiralty jurisdiction. . . . However, when this kind of potential hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime activity, as does the navigation of the boats in this case, admiralty jurisdiction is appropriate.”), cited for this proposition by Sisson v. Ruby, 497 U.S. 358, 362 (1990)

Admiralty Law provides more stringent criteria, a higher threshold, for a person to have standing to make a claim of negligent infliction of (severe) emotional distress (NIED) than do many states, including Washington and California. “Standing” is the question of whether a party may seek a remedy for a wrong done. See , Flast v. Cohen , 392 U.S. 83, 101 (1968) (“[W]hether the party invoking federal court jurisdiction has "’a personal stake in the outcome of the controversy.’ ”) Washington and California allow for NIED “bystander” claims even if the would be plaintiff was neither injured nor realistically threatened by the event’s mechanics. “Bystander” is perhaps too narrow a label, as claimant need not be present at the event in these states. For instance, the Washington Supreme Court has held that close relatives to the accident victim who first saw the victim shortly after the accident may have standing to sue. See, Hegel v. McMahon, 136 Wn. 2d 122 (1998). California initially recognized a right of a bystander to sue for severe emotional shock or injury. Dillon v. Legg, 68 Cal. 2d 728 (1968). The California Supreme Court later expanded the scope of permissible plaintiffs. A husband who had sustained NIED because a physician misdiagnosed his wife as having a sexually transmitted disease; that claim was allowed. Molien v. Kaiser Found. Hosps., 27 Cal. 3d 916, (1980).

Admiralty law is more conservative in the United States on NIED standing. First, the would-be claimant must have been present and witnessed the event; second, this person must either have been bodily injured through the event’s mechanics or must have been in a “zone of danger,” which is defined as "placed in immediate risk of physical harm." Conrail v. Gottshall , 512 U.S. 532, 535 (1994)[“Instead, this Court adopts the zone of danger test, which limits recovery for emotional injury to those plaintiffs who either sustain a physical impact as a result of the defendant's negligence or are placed in immediate risk of physical impact by that negligence.”] Gottshal was brought pursuant to the Federal Employees Liability Act (railroad) 45 U.S.C., §§51; et seq., and later applied in the general maritime law as we shall see.

Applying the Zone of Danger test, one federal court addressed NIED claims of a vehicle passenger aboard a ferry that almost sank, though he did not have to leave his truck, nor was he bodily injured, holding that the plaintiff had standing to pursue NIED compensation given the event facts and severe emotional/psychic injuries. Sawyer Bros., Inc. v. Island Transporter, LLC, 887 F.3d 23, 38 (1st Cir. 2018). Compare: another federal court found the would-be plaintiffs had no standing. They had not witnessed the propeller strike of their relative; they were not in a zone of danger. Ortiz v. Zambrana , 809 F. Supp. 2d 1 (D.P.R. 2011).

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

COST OF SALVAGE CAN BE AN EXPENSIVE LESSON TO NOVICE BOATERS

Wed, 03 Aug 2022 20:35:22 GMT

Recently, because their boat ran out of gas, recreational boaters ran aground, tipped over and could have drowned near the Alviso Marina at the southern tip of San Francisco Bay. The San Jose Fire Department, had to rescue them and the motorboat.

The event raises issues: (1) Does maritime law apply? (2) Can San Jose recover its cost of securing the vessel? (3) Is the owner of the vessel liable for monetary damage to the passengers? (4) Was there insurance?

I. MARITIME (Admiralty) JURISDICTION

The motor vessel did not have to overturn while in the water, overturning on a mudflat is sufficient one jurisdictional criteria or test. See Sisson v. Ruby , 497 U.S. 358, 364-65 (1990)[holding that storage and maintenance of a vessel at a marina on navigable waters fell within the substantial relationship requirement).

II. SALVAGE

The securing of the vessel from further damage constitutes salvage, a special area of admiralty law. “Salvage” is defined as “[T]he reward or compensation allowed by maritime law for service rendered in saving maritime property at risk or in distress by those under no legal obligation to render it, which results in benefit to the property . . .” The Neshaminy , 228 Fed. 285 (Third Cir. 1915). Although federal statute, 46 U.S.C., §2304 requires the captain of a vessel to render assistance to any individual found at sea who is in danger of being lost, it does not impose a duty to rescue property; that is, to salvage the vessel. This applies to government agencies and private parties. Gough v. U.S. Navy , 2009 U.S. Dist. LEXIS 75589, at *11-12 (S.D. Cal. Aug. 25, 2009) [“ Under the principles of general maritime law, a private party has no affirmative duty to rescue [*12] a vessel or person in distress. Wright v. United States , 700 F. Supp. 490, 494 (N.D. Cal. 1988). This same principle applies to the U.S. Coast Guard. Id .”] Note, various state or local ordinances may supplement legal responsibility issues as to salvage.

III. IS OWNER LIABLE?

Too few facts known to say with any probability. If the owner was not aboard, the owner could sue in federal court, pursuant to The Limitation of Liability Act , 46 U.S.C., §30501, requiring the passengers and San Jose to prove the owner was in privity (reasonably close connection) with the fault that legally contributed to cause the grounding. If not, the owner’s financial exposure would either be nothing or limited to the fair market value of that small motorboat in its condition after the grounding.

IV. INSURANCE

The owner is not required to have insurance. Not having insurance is foolish. There are no airbags or injury damping bumpers. There are no seatbelts typically. Vessels, especially recreational types, are not built to withstand collisions. There is no shoulder of the road to pull off to in order to repair failed engines, rudders, or appurtenances. Serious injury or death is much more likely to occur in accidents involving boats, jet skis and all other manner of vessels. Insurance is relatively inexpensive: a lot less expense than being sued without having such coverage. Be smart.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

Which Law to Apply to Swimmer – Boat Accident

Mon, 18 Jul 2022 21:28:57 GMT

An article published by a reputable news organization reported on a boat striking a swimmer in Tomales Bay, California, a portion of the Pacific Ocean. The article discussed state law, the implication being that state law applies: it does not. Admiralty law - general maritime law applies because the loss occurred on navigable waters of the United States (a codified term of art used in analyzing jurisdiction; see, 33 CFR, Part 229.) Had the accident occurred on a California Lake (but not Lake Tahoe), state law would have applied because lakes that do not constitute any part of a state boundary line are not “navigable” under Part 329. Instead Harbors & Navigation Code, including statute 656 would apply.

Since the GML applies, an effecting vector to start liability analyses would be 33 CFR Part 83 - Navigation Rules.

Want to discuss? Call or message us through this website.

Wishing you smooth sailing, Arnold Berschler.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

REBUFFING VESSEL INTERESTS’ ATTEMPT TO EXPAND THE TIME TO BE INCLUDED UNDER THE CHANDRIS 30% OR MORE GUIDELINE

Tue, 28 Jun 2022 22:23:37 GMT

INTRODUCTION : Arnold Berschler was enlisted as co-counsel in a recent Jones Act case in New York State by a New York firm concentrating in “shore side” personal injury claims. Horrific injuries to a seafarer who worked weekends aboard for vessel interests while working weekdays in shoreside employment for another employer completely unrelated to vessel interests, and which second employer was not a party to the case. Attempting to thwart Plaintiff’s case, the vessel interests, in a motion for summary judgment, argued a novel interpretation of Chandris, Inc. v. Latsis , 515 U.S. 347, 115 S. Ct. 2172 (1995). In this U.S. Supreme Court decision, the Court enunciated a mathematical guideline in analyzing the worker’s connection to a vessel or fleet to assist in determining which persons qualified to prosecute claims under the Jones Act , 46 U.S.C., sec. 30104, or for maintenance and cure (M&C) under the general maritime law (GML). Note that while the employer is the only party possibly liable for negligence under the Jones Act, it is the GML that makes the employer responsible for providing M&C. The Chadris Court held that to be qualified under the Jones Act, a person “[W]ho spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act . This figure of course serves as no more than a guideline established by years of experience, and departure from it will certainly be justified in appropriate cases.” Id ., at 371, 115 S. Ct. at 2191. New York vessel interests argued that when calculating 30% of employment, the time that Plaintiff worked for the unrelated shoreside employer also had to be included in total hours worked from which the 30% was to be calculated. Following is an abstract of the filed opposition to this argument.

ARGUMENT ON THE LAW

Standing: One Employer Only

A seafarer may have only one employer for Jones Act purposes.

“However, "only one person, firm or corporation can be sued as an employer" under the Jones Act. Ballance v. Energy Transp. Corp., 2001 U.S. Dist. LEXIS 1673 (S.D.N.Y. Oct. 18, 2001) (quoting Cosmopolitan , 337 U.S. at 791.). An employer is one who has the power to "control, manage and direct the [Plaintiff] in the performance of the seaman's work." Jurgens v. Polling Transp. Corp. , 113 F. Supp. 2d 388, 403 (E.D.N.Y. Sept. 19, 2000).”

Lippold v. Bvi Emp't, No. 05-CV-01936, 2008 U.S. Dist. LEXIS 141064, at *6 (E.D.N.Y. Apr. 14, 2008). The motion must fail because it cannot be determined which Petitioner is the employer, has standing.

Movant Fails in Burden. The Employer, Not All Employers, is the Law’s Focus

Movant Brief. attempts to gloss over the crucial distinction that all its the case law – indeed all caselaw - involves one employer or group of related employers. Movant Brief. buries the issue in foot note 4 on page 7. Because the fundamental premises are incorrect, the facts in support (Naturalist versus crew; aggregating all work for disparate concurrent employers) are not material.

Plaintiff necessarily reviews crucial history in case law.

The base upon which Movant Brief. “hangs its hat” is Chandris, Inc. v. Latsis , 515 U.S. 347 (1995). In that opinion the Supreme Court made very clear that the seafarer issue focus was in the context of working for a single employer or group of related employers.

We agree with the Court of Appeals that seaman status is not merely a temporal concept, but we also believe that it necessarily includes a temporal element. A maritime worker who spends only a small fraction of his working time on board a vessel is fundamentally land based and therefore, not a member of the vessel's crew, regardless of what his duties are. Naturally, substantiality in this context is determined by reference to the period covered by the Jones Act plaintiff's maritime employment, rather than by some absolute measure. Generally, the Fifth Circuit seems to have identified an appropriate rule of thumb for the ordinary case: A worker who spends less than 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act. [Emphasis added.]

Id. , 515 U.S. at 371; emphasis added. Yet, Movant Brief. chooses to focus on non-maritime employment. Chandris goes on to note:

As we have said, "the inquiry into seaman status is of necessity fact specific; it will depend on the nature of the vessel and the employee's precise relation to it." Wilander , 498 U.S. at 356

Ibid. All of Movants;’ cases address a single employer whose employee is essentially a shore-based worker randomly aboard the vessel for a short period. Becker v. Tidewater, Inc. , 335 F.3D 376, 390 (5 ^th Cir. 2003): an office intern briefly aboard a vessel during a multi-phase teaching, the vast majority of which occurred ashore and who did not contribute to vessel mission. Dimone v. City of New York , 2016 U.S. DIST. LEXIS 70769, 14 CIV. 9375, (AJP), AT *5-6 ( S.D.N.Y. MAY 13, 2016) a port engineer checking on moored vessels to which he travelled to from his office. Griffith v. Martech Int'!, Inc ., 754 F. Supp. 166, 169 (C.D. Cal. 1989); single employer of a diver. The cases upon which this rests have been overruled. See, e.g. Bullis v. Twentieth Century-Fox Film Corp., 474 F.2d 392, 393 (9th Cir. 1973).

In Harbor Tug & Barge Co. v. Papai , 520 U.S . 548 (1997), which followed Chandris , the Supreme Court again held that:

There was no suggestion of a need to examine the nature of an employee's duties with prior employers. See also id., at 367 ("Since Barrett [v. Chevron, U.S.A., Inc., 781 F.2d 1067 (CA5 1986) (en banc)], the Fifth Circuit consistently has analyzed the problem [of determining seaman status] in terms of the percentage of work performed on vessels for the employer in question "). The Court of Appeals majority interpreted the words "particular employer" outside the limited discussion in which we used them and, as a result, gave the phrase a meaning opposite from what the context requires

Id., at 554; emphasis added. Prior employment is not dispositive, and that rationale also applies to concurrent employment for a different non-maritime employer. See, Bell v. Dunn , 2004-2117 ( La. App. 4 Cir 12/8/00), 924 So. 2d 224, 232.

Looking at Movant Brief’s citation Isrow v. "A Modo Mio ," 112 F. Supp. 2d 641,648 (E.D. Mich. Aug . 9, 2000), the court determined that a janitor who worked aboard only when the vessel was anchored, was a Jones Act seafarer.

Part-time is no bar to seafarer status.

Defendants also argue that Plaintiff was not a seaman because he worked at most only on a part-time basis. Defs.' Opp'n at 7-8. Defendant cites no caselaw to support the proposition that a part-time employee cannot be a seaman. Indeed, the court finds no such requirement. See Lunsford v. Fireman's Fund Ins. Co. , 635 F. Supp. 72 (E.D. La. 1986) (finding that a part-time cleaning lady aboard a docked pleasure yacht was a "seaperson" for purposes of the Jones Act). Further, to the extent that Defendants suggest that Plaintiff's connection with the vessel was only "transitory or sporadic," the court rejects this argument. The evidence presented establishes that Plaintiff "performed a significant part of his work on board the vessel on which he was injured, with at least some degree of regularity and continuity," satisfying the test for seaman status. See Chandris , 515 U.S. at 368-69; cf. Papai , 520 U.S. at 559 (finding that the twelve prior discrete working engagements the plaintiff had with the vessel, spanning over 2-1/4 years, were separate from the one in question such that his connection to the vessel [*19] was "transitory or sporadic" and plaintiff was not a seaman).

Keliihananui v. KBOS, Inc ., No. 09-00151, 2010 U.S. Dist. LEXIS 50877, at *17-19 (D. Haw. May 24, 2010).

T his entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

SUMMER FUN: WINDSURFING AND THREE MEN IN A TUB

Sun, 08 May 2022 17:54:09 GMT

Recently listened to author Stephen King, popular for horror and fantasy novels, describe his pathway to creating published work. Hearing that and thinking about Summer coming, wanted to share a case that touches both themes.

In its simplest description, windsurfing (or sailboarding) involves navigating what looks like a surfboard onto which has been affixed a mast with boom, allowing the windsurfer to steer by manipulating the boom, affecting the sail. One day, a Friday at lunchtime, an attorney called on us for help. The underlying case was one by the client-plaintiff for serious personal injury damage arising from the head-on collision between two sailboards in a river. (More about that later.) Two years before, this lawyer had filed the case as a simple negligence action, based on state common law, in state court. That Friday morning, the assigned judge had held an “issue conference” in advance of jury trial that was to start on Monday. The judge indicated that he was going to “non-suit” (dismiss) the case as having no legal foundation in law because the plaintiff had been injured through an inherent risk of the sport; the Primary Assumption of the Risk Doctrine applied, barring liability. (Why the defense had not earlier demurred or moved for summary judgement is unknown.)

Needless to say, the plaintiff’s lawyer was a bit anxious. We instructed counsel to immediately file with the Clerk of Court’s office a form dismissing the entire case without prejudice; then to bring the plaintiff to our office that Monday, instead of trial. Three reasons: (1) although state statute of limitation had passed, the general maritime law time limitation of three years still was open; (2) the river was a “navigable waterway” and the sailboard arguably was a “vessel in navigation” (more about that later) providing a United States District Court with admiralty jurisdiction; finally, (3) under admiralty law, also known as the general maritime law, the defense of primary assumption of risk is not allowed. On Monday, the windsurfer retained us in association with his original lawyer. Because the state case had been dismissed without prejudice to renewing the underlying claim, we filed suit in the United States District Court on Tuesday, pleading the suit being in admiralty brought pursuant to 28 U.S.C., §1333. In a “belt and suspenders” type tactic, we described the action as being one within the meaning of F.R.Civ.P. 9(h) [“ If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim . . .”] Then the fun began.

That the collision had occurred at all was the exact opposite of “miracle.” The two windsurfers had never met. they had launched from opposite banks of the river. They coincidentally launched within minutes of each other. The river was a half-mile wide. There was other river traffic. It was clear. It was windy (of course). Each windsurfer’s destination was the opposite shore. As these sailboards approached each other, our client had the wind to starboard (coming from right-ish to left-ish). When each mariner saw they were on a collision course, each acted to avoid the other. Our client knew the Inland Rules of the Road, especially Rule 12 (Cite, 33 CFR § 83.12), which mandates:

(a) When two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other as follows:

(i) When each has the wind on a different side, the vessel which has the wind on the port side shall keep out of the way of the other.

Our client had the right of way. The oncoming vessel having the wind to port, it was to give way to our client. Unfortunately, the other mariner had the the opposite understanding of Rule 12: blam! The nose of the other sailboard broke our client’s ribs, lacerated his liver; he almost drowned, and was never the same. The offending windsurfer challenged the Honorable Court’s admiralty jurisdiction through a motion to dismiss pursuant to F.R.Civ.P. 12(b)(6), arguing the sailboard was not the sort of watercraft within the purview of admiralty: allegedly it was not a vessel for maritime law purposes.

We successfully opposed the motion, in part arguing, by analogy, that even three men in a tub would have been subject to admiralty law. We cited geographically widespread instances of courts adopting the same analysis and that analogy, our favorite citation being:

Even far more exotic watercraft have been deemed vessels. . . . No doubt the three men in a tub would also fit within our definition, and one probably could make a convincing case for Jonah inside the whale. Thus K-1 and ART-402 are vessels.

Burks v. Am. River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982)

Our argument necessarily focused upon two elements:

(1) These sailboards’ activities had the potential to affect maritime commerce, the river was a major passageway to an inland deep-water commercial port (See, Sisson v. Ruby, 497 U.S. 358, 363, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990)).

(2) Windsurfing on the navigable waterway bore "a substantial relationship to traditional maritime activity." (Foremost Insurance Co. v. Richardson, 457 U.S. 668, 675 n. 5, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982)).

We additionally cited the definition in 1 U.S.C., §3: “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

In conclusion, our advice is to wear sun protection, drink plenty of water and be safe.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

BERSCHLER RESCUES PERSONAL INJURY LAWYER & HIS CLIENT

Wed, 27 Apr 2022 23:36:34 GMT

It pays to retain a maritime law specialist to represent victims in boating accidents...

LEGAL BACKGROUND

Congress enacted the Limitation of Liability Act, 46 U.S.C., 30501- 30512, in 1851 as an indirect way of supporting American commercial vessels competing with foreign flagged vessels that had been undercutting rates. The Act protects from unlimited liability the owner or operator of any “. . . seagoing vessels and vessels used on lakes or rivers or in inland navigation, including canal boats, barges, and lighters” (46 U.S.C., 30502) for personal injury or wrongful death damages that otherwise would exceed the value if the vessel at the end of the voyage, “. . . shall not exceed the value of the vessel and pending freight” 46 U.S.C., 30505(b). The Act combined with the federal jurisdiction statute, 28 U.S.C., 1333, give the vessel owner the right to sue the victim in federal court for a finding of whether the limitation applies. You read correctly: the tortfeasor gets to sue the victim. And the “kicker” is such federal action can eliminate the victim’s right to a jury.

FACTUAL BACKGROUND

A young woman died in a pleasure boat collision on one of California’s rivers. The parents called the automobile accident injury lawyer who advertised on television. That lawyer filed a case in state court. When the perpetrator’s lawyer found out about that, he had the boat owner file a case in federal court under the Act. Parents’ lawyer did not realize the federal case put a hold on the state case and failed to file responding papers in the federal court. Consequently, the boat owner got a default against the parents, barring them from recovery at all.

TO THE RESCUE

In a panic, the parent’s lawyer contacted Berschler Associates, PC, which took over and filed for relief in the federal action. Although it was a narrow escape, the United States District Court adopted the argument of law made by Berschler and allowed the parents to proceed. Thus, their first lawyer, despite making errors, avoided being sued by the parents. Best of all, the parents achieved what they truly wished for: justice for their late daughter.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

BEWARE OF SLEAZY CHARTER BOAT TACTICS THIS SUMMER

Mon, 25 Apr 2022 19:19:38 GMT

Watch out this summer sailing season for what we consider to be sleazy charter boat tactics to avoid owner liability. In short, a person buys a boat, financing the loan through renting the vessel out for day-trips. The sleaze being that the owner has the renter sign a “bare boat charter” agreement. A true bare boat charter means the renter takes on full responsibility and may use the vessel for any lawful purpose and take it anywhere: the charterer becomes the owner in effect. The trick is that all of these day-tripper “bare boat” agreements do not allow such rights and are not true “bare boat charters;” yet, the owner will want to walk away from any tragedy the owner caused.

Berschler Associates, PC are counsel to victims in a death case in Maryland Federal Court which arises out of what I contend is also an “unlawful” charter, in which the owner is operating passenger vessel for profit in practical effect; yet trying hide behind an alleged “bare boat charter” document. It is actually a time charter in legal effect, a much different contract with vastly different legal obligations. The ploy of “bare boat charter” was being used to avoid U.S., Coast Guard requirements appearing in 46 CFR Subchapter T - SMALL PASSENGER VESSELS.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.

PASSENGER VESSEL TICKET TRAP FOILED

Tue, 12 Apr 2022 19:28:24 GMT

Tour boat operator attempted to prevent injured passengers from successfully making claims by inserting terms into the passenger ticket. The text upon the back of the ticket of passage tried to reduce to one year the period in which a passenger could file suit for personal injury damage, instead of the three years set by federal maritime law statute, 46 U.S.C., section 30106 (See, Butler v. Am. Trawler Co., 887 F.2d 20 (1st Cir. 1989)(Hon. Stephen G. Breyer.) The font was in 5-point, in red color, crowding 21 lines, 2619 characters (with spaces) to form 424 words printed upon paper measuring five inches (5”) long and one and three-quarters inch (1.75”) wide. The vessel operator brought a motion for summary judgment to defeat Berschler Associates, PC’s client on statute of limitation grounds.

Berschler Associates, PC persuaded the Court that the format made all the terms unenforceable due to the Lilliputian-sized typography, such not giving reasonable notice of terms to the passenger, which is the maritime standard applicable in both state and federal courts. (See, Lisi v. Alitalia-Linee Aeree Italiane, 253 F. Supp. 237, 243 (S.D.N.Y. 1966). The motion was denied.

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