“Have you been injured by the negligence of others?” “Do you know your rights?” “You won’t pay a dime unless we make a financial recovery.” “They have insurance company lawyers, you need someone in your corner.”
If you watch television, listen to the radio or surf the internet, you have undoubtedly seen, heard or read advertisements using phrases like these from plaintiff attorneys looking for business. And while injured persons are indeed entitled to representation if they are injured due to the negligence of another party or parties, sometimes the melodramatic advertising scripts are a bit over the top, encouraging even the questionably injured to file lawsuits.
In past columns, I have focused primarily on U.S.C.G. licensed mariners involved in Administrative Law proceedings following charges brought against them and their licenses resulting from their involvement in a marine casualty. Specifically, they have been charged with negligence for their actions, or lack thereof, which led to a collision with another vessel, a grounding, or allision with a dock or anchored vessel, etc.
As discussed previously, if the professional mariner involved has a license insurance policy from a specialty company such as MOPS, he immediately reports the claim and is assigned a local maritime attorney from the MOPS Legal Network. And, from that time to the final resolution of the case, he has his own attorney whose sole responsibility is to protect his license up to and sometimes including an appeal to the Commandant.
When In Doubt…Sue!
But what happens if that same incident leads to a lawsuit for monetary damages being brought by a third-party who claims to have been injured as a result of the licensed mariner’s negligence?
It happens much more frequently than you might think. And, fortunately, most experienced maritime attorneys have the skill and experience to represent the affected mariner in both the Administrative and Civil court venues.
In these civil cases, the mariner is often not necessarily the ultimate “deep pocket” target of the suit, but he will almost certainly be named in the action as the plaintiff and his attorney usually cast a very wide net in their quest for financial compensation and, in some cases, punitive damages. If the mariner defendant is an employee of a marine transportation company, whether it be an oil company, a tugboat company or a passenger transportation ferry, the real target is not him but rather that deep pocket corporate entity. And one thing’s for certain: The outcome of the mariner’s Administrative Law case, i.e. the negligence proceedings against his U.S.C.G. license, will either significantly strengthen or weaken the Civil case linked to the same incident.
Perhaps the professional mariners most susceptible to the potentially devastating effects of these civil suits are members of state pilot associations. As independent contractors, they have no “deep pocketed” employers/companies to rely on. Quite simply, they are on their own. And while some states have $1,000 to $5,000 limitation of liability laws in place to protect them, most don’t, meaning that in many states the affected pilot is not only responsible for the costs of defending his license, but also responsible for funding his civil defense and, potentially, for paying the full amount of any monetary judgment against him resulting from the plaintiff’s case.
All told, the license defense, civil legal defense costs and indemnity payment total could easily exceed $100,000…and often more! Not a very pleasant prospect to consider when bankrolling your own defense.
The MOPS claim files contain more than a few vivid examples of the financial, reputational and emotional toll that personal injury lawsuits have on hard-working ship pilots, but I selected one fairly typical case to demonstrate the arduous process.
A 24-Month Ordeal
The case involved two vessels: a large tanker being piloted on a river outbound to sea and a small privately-owned cabin cruiser with two men onboard fishing. The plaintiffs alleged that their small boat, Sea Dog,anchored about 50 yards off the riverbank was impacted by such violent turbulence caused by the passing of the tanker-piloted Avalon Sun that both passengers were thrown about, resulting in serious injuries to the boat owner. The primary plaintiff’s attorney specifically alleged that “the incident was caused by one or more negligent acts and/or omissions on the part of the defendants, its agents, vice principals and/or employees” (including the non-employee pilot). “Said negligent acts were a proximate cause of personal injury to plaintiff. As a result of the incident, plaintiff suffered a fractured skull and compound fracture of his leg.”
It’s important to note that there was no limit of liability statute for pilots in the state in which the incident occurred.
Among the many alleged acts and/or omissions of negligence included were:
- Failing to keep a proper lookout;
- Failure to operate the ship in question in a reasonable and prudent manner as to prevent injury to persons and/or property;
- Operating the Avalon Sun in an unreasonable manner;
- Operating the Avalon Sun at an unreasonable speed; and
- Creating unreasonable pressure fields, suctions, Bernoulli effects, waves, wakes and/or surge at the place of the occurrence.
- The case against the pilot’s license was conducted before the State Pilot Commission which determined very quickly that he was not negligent in performing his pilot duties throughout the incident in question. Yet it took over two years, dozens of court appearances, countless depositions and attorney/client conferences for that same pilot to finally be released from the civil case brought by the injured boater. And while relatively little money was expended in his successful license defense, the final cost of his civil case defense exceeded $60,000.
And that was a victory!
At the end of the day, all licensed mariners should consider protecting themselves and their families by purchasing some level of civil legal defense coverage. Whether they be frivolous, legitimate or somewhere in between, most civil lawsuit proceedings are lengthy and time-consuming and, as such, become very expensive to defend…particularly on your own dime.