1851 shipowners act complicates litigation over bridge worker’s death

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By Heather Cole
Dolan Media Newswires

St. Louis, MO – Carpenter Andy Gammon died March 28 after the aerial lift he was in toppled from a barge on the Mississippi River.

Less than six months later, plaintiffs sued over Gammon’s death at the new Mississippi River Bridge project site north of downtown St. Louis.

But it wasn’t the family of the 35-year-old Park Hills father who rushed to U.S. District Court in St. Louis. It was his employers — Massman, Traylor, Alberici, a joint venture and lead contractor on the more than $600 million bridge project.

The suit seeks exoneration or to limit damages to $215,000, the total value placed on two barges — the one Gammon was on and a second that was tied to it. The contractor’s attorneys also sought and won a temporary ban on the filing of lawsuits in other courts over Gammon’s drowning: Claims must be made in the federal case.

The attorneys representing MTA — composed of Massman Construction Co. of Kansas City, Traylor Brothers Inc. of Indiana and St. Louis-based Alberici — were able to take the action because Gammon’s fatal accident took place on water instead of on land.

Under U.S. maritime law dating to 1851, if vessel owners can show they had no knowledge or blame for negligence that caused an accident, they can limit damages to the post-accident value of their vessels and money owed for freight. They also can move to keep all litigation in a single federal court in front of a judge rather than face a state court jury.

Whether the attorneys from Fox Galvin representing the joint venture will succeed is an open question. But in the meantime, Maurice Graham, the attorney for the Gammon family, finds himself in a defensive position. Graham is representing Gammon’s widow, Tracy; the couple’s two children; and Gammon’s parents, Edward and Carolyn.

“They were aware that I represented Mr. Gammon’s family, and so they filed this in an effort to limit any claims that we had the intention of filing,” Graham, of Gray, Ritter & Graham, said of the attorneys representing MTA.

Graham on Oct. 24 filed a motion to dismiss MTA’s lawsuit and to dissolve the stay that bans other litigation. The motion argues MTA’s negligence was responsible for the accident and says the family is entitled to a state court jury trial.

Ronald Fox, an attorney representing the joint venture, said it wasn’t appropriate to comment on pending litigation. Theodore Lucas, a Fox Galvin attorney who signed the lawsuit, did not return two phone calls seeking comment by press time. Mark Schnoebelen, a spokesman for MTA, also did not return a call by press time.

1851 act

According to Graham’s motion, the lift that carried Gammon was not secured to the barge when Gammon was attached to the basket by a harness and hoisted into the air. A 90-by-60 pipe fell and hit the arm of the lift when Gammon was in it. The lift tipped over, plunging Gammon into the river.

Construction halted temporarily as rescue teams searched for Gammon, whose body was found the next day, according to news reports at the time.

MTA’s attorneys said in the suit that the contractor had no knowledge of negligence that caused the accident and therefore should be exonerated or have damages limited to the combined value of $215,000 for the two barges.

The Limitation of Shipowners’ Liability Act of 1851 allows vessel owners to limit their damages if they can show their vessels were seaworthy, their crew was competent, and they and their captains had no knowledge of and bear no blame for negligence that caused an accident. A minimum amount is based on the volume of the vessel.

But Graham said he likes his chances on the issue of negligence, pointing to citations from the federal Occupational Safety and Health Administration. The agency recommended $15,300 in fines for alleged safety violations before and on the day of the accident. Among them: the use of the Genie N80 boom lift on a moving vehicle despite the manufacturer’s recommendation against the practice.

“It’s not unusual to get a temporary stay,” Graham said. “I would be surprised if the stay is made permanent.”

Judges seldom grant exoneration, but they sometimes grant limitation, said Brian Flanagan, a solo maritime attorney based near Boston.

And there’s a better shot at limitation for property damages than for personal injury, said Flanagan, who also is an adjunct professor at the Suffolk University Law School.

“As a general rule, federal judges don’t like limitation with personal injury,” said Flanagan, who said he was basing the conclusion on his own experience rather than any studies.

But even when the value of a vessel tops the value of a claim, defense attorneys use limitation law for “venue shopping,” said Kurt Arnold, a maritime plaintiffs’ attorney with Arnold & Itkin in Houston.

If all claims are in one federal court, defense attorneys don’t have to do battle in several state courts at the same time, and they can face a judge instead of a jury.

The shipowners’ limitation act also can throw off the many attorneys who lack maritime law experience, Arnold said.

“It’s like, ‘Wait a minute, now you’re suing me in federal court?’” Arnold said.

Tragedy on the water

Maritime law gets a new examination every time there is a large-scale tragedy on the water, from the Titanic to the Deepwater Horizon explosion.

Plaintiffs’ lawyers, including Arnold, who represent Deepwater Horizon victims and families pushed to change the limitation law after the drilling rig accident that killed 11 and injured about 100, Arnold said. Transocean Ltd., owner and operator of the drilling rig, sought to limit its liability to nearly $27 million, according to a May 2010 Wall Street Journal article.

The limitation issue is pending, said Arnold, who said all but one of the families of the men who died have settled, but more injury cases continue.

Legislation in Congress to repeal the act passed the U.S. House but didn’t make it through the Senate in 2010. The majority of the approximately 3,000 members of the Maritime Law Association of the United States opposed the repeal, according to a July 20, 2010, letter signed by the president of the association, Patrick Bonner, and sent to senators on the committee considering it. In particular, they favored the “judicial economy” of having all claims in a single court.

Legislation introduced in 2011 that would have applied only to the Deepwater Horizon explosion victims and their families didn’t make it out of committee.

“Since the oil disappeared, so did a lot of the efforts to eliminate [the limitations],” Arnold said.

The 1851 act initially was intended to encourage shipping interests, but now is outdated, Arnold said.

“Most vessels these days have insurance,” Arnold said.

The Associated Press contributed information to this report