Saturday, August 11, 2012

ANOTHER CORRECTION: Obviously we cut Chapter 3 into too many small parts. The result is that several parts did the cyber equivalent of falling on the cutting room floor. This was our first attempt at serializing a book and "don't over divide" appears to be our first common sense planning lesson. If you have noticed the line spacing that started with Chapter 4, the first  chapter we presented in its entirety  you have no doubt figured out that we are having technical difficulties ( involving three different programs) in translating to the blog page. If you enter the blog from any browser other than Google you no doubt have noticed a few of the illustrations apparently can not be opened by all browsers. As we said at the out set our goal is to create the single most useful maritime site on the Internet and we chose to do it by starting out as a blog which means that we evolve with our visitors, with input from our visitors, and the entire Internet community able to see our mistakes as we develop. Thank you for visiting and especially thank you for your patience. Please come back often. We are improving. We'll have another full chapter of BLOOD ON BROWN WATER up later today.

Blood on Brown Water Chapter 3, Installment no.8

BLOOD ON BROWN WATER: Chapter 3 Cont. Conclusion


Versatility has neither paid, nor offered to pay, nor been willing to discuss whether it will pay Herman Newton maintenance and cure despite repeated requests from Newton and his attorney. The amount of maintenance and cure owed by Versatility to Herman Newton is considerable. Herman Newton is indebted to the North Okaloosa Medical Center for his eleven day stay in isolation and surgery in the amount of $42,739.75. Mr. Newton is also indebted to a treating physician for post-discharge out-patient care, Dr. David
Herf, in the amount of $630.00. Herman Newton was out of work due to his staph infection from Mar. 2, 2007 until May 2007. Versatility’s
former port captain, Doug Faust, testified that Versatility’s general manager, Rhonda Watson, had agreed to pay Newton maintenance of $15.00 per day, although no payment had ever actually been made.
The leading maintenance and cure case of Hall v. Noble Drilling, 242 F.3d 582, 591-2 (5th Cir. 2001), contains an excellent discussion how the marine industry’s selection of $15.00 a day maintenance in the 1970’s now translates into $38.35 per day in current dollars. Plaintiff notes that even $38.35 per day is a small fraction of the two-thirds payment of worker’s compensation assured injured land based workers. Mr. Newton is entitled to unpaid maintenance in the amount of $1,342.25, representing the period between Mar. 2, 2007 and his release from this particular bout of MRSA staph infection on April.16, 2007 at a rate of $38.35 a day. Newton also is entitled to an award of attorney’s fees incurred in the prosecution of plaintiff’s maintenance and cure claim.

Maintenance and Cure

The law required Versatility, as Herman Newton’s Jones Act employer, to provide Newton medical care for any injury or illness incurred in the service of his vessel. Jones Act employers specifically owe maintenance and cure to a seaman who suffers illnesses while in the service of their vessels. The Plaintiff need not show his illness is job related. Similarly, a "seaman’s entitlement to maintenance and cure is entirely unrelated to any fault or  negligence on the part of the shipowner.” A seaman need not "absolutely" prove his entitlement to maintenance and cure: "Any doubts or ambiguities in the application of the law of maintenance and cure are resolved in favor of
the seaman." The employer's duty to pay maintenance and cure "is of ancient vintage...". [Editorial note: Attorney Mark Ross fully documented each of these statements in case law in his motion.]
Doug Faust, Versatility’s former port captain and Captain Gary Hensley, former captain of the M/V East Wind, have both testified no issue existed in their minds that Versatility owed Herman Newton maintenance and cure. Given Versatility’s denial of maintenance and cure to Herman Newton constitutes by any measure the "egregious
fault," the plaintiff is also entitled to an award of attorney’s fees. Therefore, Attorney Mark L. Ross moved the Court to award attorney’s fees on a contingency fee basis based on the amount the Court may chose to award in maintenance and cure citing a Supreme Court case that observed that a lower court had assessed attorney’s fees at 50% of the maintenance and cure award.

The Vessel Was Unseaworthy as a Matter of Law –A Substantial Cause of Newton’s Infection.

"The case law holds that an owner is responsible to the captain or any seaman thereof for injuries received because of the unseaworthiness of the vessel." A vessel is unseaworthy when its crew is inadequate or
incompetent. The duty of a vessel owner to provide a seaworthy vessel, including a competent crew, is absolute and non-delegable. Liability is imposed for unseaworthiness regardless of the vessel owner's negligence or failure to exercise reasonable care. Versatility was obligated under its duty to provide plaintiff with a seaworthy vessel and an adequate crew. It is an uncontested matter of fact and law that burdening the M/V East Wind with an MRSA staph infected crewman such as Adam Hanshew rendered the vessel unseaworthy. Newton, in order to prevail on its unseaworthiness claim against Versatility, need not show that Versatility knew or should have known of Adam Hanshew’s MRSA staph
infection when it hired him since, "Liability is imposed  for unseaworthiness regardless of fault, negligence or the failure to exercise reasonable care on the part of the vessel owner." However, given that Versatility rehired Hanshew after the outbreak of his Feb. 2007 staph infection and despite the infection of fellow crewman Herman Newton, the Court concluded that Versatility was indifferent to the health risks that an MRSA staph carrier presented to its employees.
Refusal to Professionally Decontaminate the Vessel Also Rendered M/V East Wind Unseaworthy. 

 Versatility’s refusal to have a professional cleaning service decontaminate the M/V East Wind and at a bare minimum dispose of the mattress on which Adam Hanshew had been draining a "pussy mucus type drain" rendered the vessel unseaworthy and led to plaintiff’s MRSA staph infection. Professional cleaning services with special expertise in addressing MRSA staph infections exist and are readily available. Attorney Mark Ross attached a brochure of one such service with special expertise in addressing MRSA staph infections. Versatility’s refusal to dispose of Hanshew’s obviously staph infected mattress, which may still be in use to this day, likewise renders the vessel unseaworthy. 

Versatility’s Failure to Provide Medical Care Rendered the Vessel Unseaworthy

 Versatility’s uncontradicted refusal to provide Herman Newton with medical care rendered the M/V East Wind unseaworthy. Failure to evaluate and provide proper medical care rendered vessel unseaworthy. The vessel was "rendered unseaworthy by the failure of the ship owner to render prompt and adequate medical treatment."Unseaworthiness was the Proximate Cause of Newton’s MRSA Staph Infection. For Herman Newton to prevail on a claim of unseaworthiness, he had to show that the unseaworthy condition,the presence of MRSA staph infected Adam Hanshew and Versatility’s refusal to provide him with prompt medical care, was a proximate cause of his staph infection (i.e. that Newton’s staph infection was, "a reasonably probable consequence of the unseaworthy condition). The evidence on causation exceeds that of being "reasonably probable" and was more in the realm of beyond a reasonable doubt. 


On Nov. 26, 2007 Judge James Best, Division A, 18th Judicial District, New Roads, LA, granted Herman Newton’s motion for summary judgment for the reasons stated in the plaintiff’s motion (above) that were adopted by the court as its own. The Plaintiff, Herman Newton, moved the Court to find as an uncontested matter of fact or law that the
defendant, Versatility Marine, LLC, owes plaintiff maintenance and cure following his development of an MRSA staph infection while working in the course and scope of his employment as deckhand aboard defendant’s towboat, the M/V East Wind. Newton showed that despite Versatility Marine having actual and repeated notice of plaintiff’s
staph infection, they arbitrarily and capriciously refused to pay plaintiff maintenance and cure. Plaintiff further moved the Court to find as an uncontested matter of fact and law that Versatility Marine was
liable to the plaintiff since the plaintiff’s MRSA staph infection resulted from the unseaworthiness of the towboat M/V East Wind. The crew was rendered unseaworthy in that a fellow deckhand, Adam Hanshew, carried the MRSA staph and infected Herman Newton. The vessel was further rendered unseaworthy by Versatility’s failure to properly decontaminate the vessel after discovery of the staph contagion, as well as Versatility’s refusal to provide plaintiff with medical care under Versatility’s maintenance and cure obligations. We were informed by reliable sources that Versatility Marine is no longer in business. Companies operated in this manner give the industry a bad name.
To be continued with Chapter 4, the real horror stories starts

No comments:

Post a Comment