A WORD FROM OUR LEGAL EDITOR ABOUT AN IMPORTANT NEW PRECEDENT IN ADMIRALTY DAMAGING TO THE PERSONAL INJURY CLAIMS OF OFF SHORE WORKERS
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RE: DANYON McCARROLL,
Plaintiff - Appellant
v.
WOOD GROUP MANAGEMENT SERVICES, INCORPORATED,
Defendant - Appellee - Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-2402 - Case: 13-30891 Document: 00512590456, U.S.Fifth Circuit Court of Appeals-Link to:
Plaintiff - Appellant
v.
WOOD GROUP MANAGEMENT SERVICES, INCORPORATED,
Defendant - Appellee - Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:12-CV-2402 - Case: 13-30891 Document: 00512590456, U.S.Fifth Circuit Court of Appeals-Link to:
No law written or unwritten can be understood without a full knowledge of the facts out of which it arises and to which it is to be applied. In McCarroll vs Wood Group we see a rush to judgement, a decision based on; " Whether the defendant owes a duty is a threshold question and is a question of law." The Fifth Circuit found that the defendant, a contractor aboard an off shore rig did not owe the plaintiff, an employee of a different contractor aboard the same rig, a duty of care. In so finding there is no evidence in the published opinion that the court tested this concept of duty against the "general duty clause " in the federal offshore safety regulations. [ 33 CFR 142.4 (a) (b)]. The offshore oil exploration, drilling and production industries are characterized by a contractor and sub contractor work force. This organization is a deliberate strategy by management to make an offshore rig a difficult if not impossible place for union organization being characterized by so many different employers aboard a single vessel or platform. It has also made the industry a difficult place within which to affix liability for worker injuries and to enforce effective safety regulations.
The Coast Guard anticipated this reality in constructing their offshore safety regulations starting with a "general duty clause" that holds each holder of a lease or permit, and all persons responsible for actual operations, including owners, operators, contractors, and subcontractors responsible to ensure that those operations subject to their control comply with applicable work place safety and health regulations , and in addition free from recognized hazards. In the instant case there is apparently no recognition by the court of the Woods Group's responsibility imposed by federal regulation to ensure that those operations subject to their control comply with applicable workplace safety and health regulations, and in addition free from recognized hazards. To claim that Woods owed no duty to a different contractor's employee while working at a task under Wood's obvious control is to ignore the specific wording and intent of the applicable regulatory general duty, which the published decision fails to mention ever considering. In short given the actual federal law in the case the circumstances had to be tested under the general duty clause before any attempt was made to apply Louisiana liability law or any other law while the defense was maintaining that no duty was owed the plaintiff. The question of duty owed is indeed a "threshold question", but given the general duty expressed in regulations it is necessary to proceed to an examination of the pertinent operational facts before deciding this issue. This entire decision should be reversed for ignoring applicable federal regulation concerning duties owed employees aboard offshore rigs. If it is not tested at the Supreme Court level, advocates for injured seamen should be ready to contest its application in any particular case based on any general duty expressed in regulation. 33 CFR 142.4 (a) (b) is not the only general duty clause in federal regulations applicable to maritime adventure. Defense advocates attempting to deflect charges of duty owed should not over rely on this precedent, it rests on very shaky foundations and its application can be limited on a case by case basis.
In the wake of the McCarroll v. Wood Group Management decision by the Federal Fifth Circuit we urge advocates preparing for personal injury case aboard offshore platforms and vessels manned by multiple contractor personnel to read :
AAB COM. NO. 3, VOL. 1, (1994 as revised 2012) ISBN 1-879778-27-0
THE GENERAL DUTY TO PROVIDE A SAFE WORKPLACE AND A SEAWORTHY VESSEL.
The Coast Guard anticipated this reality in constructing their offshore safety regulations starting with a "general duty clause" that holds each holder of a lease or permit, and all persons responsible for actual operations, including owners, operators, contractors, and subcontractors responsible to ensure that those operations subject to their control comply with applicable work place safety and health regulations , and in addition free from recognized hazards. In the instant case there is apparently no recognition by the court of the Woods Group's responsibility imposed by federal regulation to ensure that those operations subject to their control comply with applicable workplace safety and health regulations, and in addition free from recognized hazards. To claim that Woods owed no duty to a different contractor's employee while working at a task under Wood's obvious control is to ignore the specific wording and intent of the applicable regulatory general duty, which the published decision fails to mention ever considering. In short given the actual federal law in the case the circumstances had to be tested under the general duty clause before any attempt was made to apply Louisiana liability law or any other law while the defense was maintaining that no duty was owed the plaintiff. The question of duty owed is indeed a "threshold question", but given the general duty expressed in regulations it is necessary to proceed to an examination of the pertinent operational facts before deciding this issue. This entire decision should be reversed for ignoring applicable federal regulation concerning duties owed employees aboard offshore rigs. If it is not tested at the Supreme Court level, advocates for injured seamen should be ready to contest its application in any particular case based on any general duty expressed in regulation. 33 CFR 142.4 (a) (b) is not the only general duty clause in federal regulations applicable to maritime adventure. Defense advocates attempting to deflect charges of duty owed should not over rely on this precedent, it rests on very shaky foundations and its application can be limited on a case by case basis.
In the wake of the McCarroll v. Wood Group Management decision by the Federal Fifth Circuit we urge advocates preparing for personal injury case aboard offshore platforms and vessels manned by multiple contractor personnel to read :
AAB COM. NO. 3, VOL. 1, (1994 as revised 2012) ISBN 1-879778-27-0
THE GENERAL DUTY TO PROVIDE A SAFE WORKPLACE AND A SEAWORTHY VESSEL.
Which is located in our Authoritative Literature Section scroll down after entering until you see the trademark (eagle atop crossed fouled anchors and scroll ) of the American Admiralty Bureau. Then keep scrolling until you reach AAB'S COMMENTATOR VOLUME 1. The relevant comment is no.3 you may also order this or any other volume of the American Admiralty Bureau's Guides or Commentator directly from MARINE EDUCATION TEXT BOOKS.
EDITOR'S NOTE: While we are an Amazon portal we suggest Marine Education Textbooks for price, availability and service. This is the original distributor for all American Admiralty Bureau publications and they still have all of the AAB books and pamphlets on a print on demand basis at very reasonable prices. Other vendors are either ordering from them and retailing with a mark up or selling used volumes sometimes at rare book prices. These very useful books are not rare just under advertised.
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