The Court Systems and Types of Actions
Successful waterfront or intermodal transportation litigation involving personal injury, vessel/equipment damage or loss, and cargo claims requires knowledge of the laws and venues covering the industry.
First comes Admiralty Court. This venue is based on international treaties, many going back centuries, and updated at the UN in the recent past. Maritime matters are treated differently than normal litigation because of jurisdiction. The admiralty system is designed to allow the adjudication of legal matters across both national and state boundaries using a court system established at the federal level.
Workers Compensation statutes covering all seamen and most, but not all, waterfront workers has evolved with the same jurisdictional considerations as Admiralty Law. Waterfront workers pass constantly from dock to ship across international boundaries when boarding foreign flag vessels and often state lines on American vessels registered in another state.
An important caveat in waterfront workers compensation is which workers are covered by federal WC regulations and which workers are covered by state act. Add to that the fact that some state WC law allows for dual federal and state coverage and the need for determining the proper venue can be an initial point of contention.
Liability cases brought by truck drivers, terminal visitors, shipping line crewmen or shore side personnel, government agents (customs, immigration, agriculture, etc.), vendors, sub-contractors, and employees not covered by federal statutes are matters before state courts. Actions of this nature are widespread but mostly narrow in scope. An example is an injured security guard working as a sub-contractor for a terminal operator bringing an action against the stevedoring company and vessel owner. A very simple example is a truck driver hitting a pot hole.
Concerning liability actions, and worthy of special mention is that; while federally covered employees are prevented from suing their employers in cases of injury, there is no prohibition against suing a third party. In almost all cases of serious injury the injured person or their estate initiates a “third party action(s)” that can proceed against any entity even remotely connected to the operation at the time of the accident. Vessel owners, charterers, operators, agents, gear manufacturers, cargo handling equipment manufacturers, agents of foreign equipment manufacturers, cargo manufacturers or growers, lashing equipment manufacturers, container manufacturers, container leasing companies, chassis leasing companies, and trucking firms are just a few of the types of businesses named in these very broad actions. Defendants in these cases or their insurers initially seek summary dismissal. Failing that they attempt minor settlements. Failing that calls for a full legal defense. One complication is that defendants in these actions often point fingers at other defendants.
Complicating an already complicated process is the special status the marine terminal and ship repair industries have been accorded by the Departments of Labor, Commerce, and Homeland Security. There are two industries that have their own OSHA Standards. One is Marine Terminals/Stevedoring/Shipbuilding and Repair. The other is mining. The most important difference when it comes to litigation involves understanding and applying OSHA Standards. Employing the proper standards or violation of standards is often a major aspect of the plaintiff’s or a defendant’s case. Adherence to United States Coast Guard Regulations may be of equal or greater importance depending on circumstances.
Finally the accident or damage may have occurred many miles away from the ship and marine terminal. An example is a truck driver hurt while opening a container door that was sealed across the sea, passed through the terminal without being opened, only to have the cargo collapse on the driver far inland. This is an intermodal accident whose roots go all the way back to a foreign manufacturer. The driver would have redress against the manufacturer’s assets in the United States and possibly against the facility where the injury occurred.
The Roll of the Industry Expert Witness
As with everything in life there are good expert witnesses and poor expert witnesses. Verdicts and Settlements often swing on the reputation and level of expertise of the witness. Having a good operations expert witness is akin to having good medical.
The better witnesses will discuss the basic case before becoming part of the team. If the expert agrees your case has merit he will say so. If your client is in the wrong the witness will say so as well, and may offer ways to minimize the loss. Good expert witnesses may refer you to another expert who would be more helpful and/or provide the names of good experts in other fields. The good expert witnesses in maritime declines cases in order to maintain their reputations. Should none of us take the work, with some explaining why, it may be wise to rethink the options.
Maritime Operations Expert Witnesses can provide avenues to proceed not readily apparent to attorneys unfamiliar with the industry. Many legitimate grievances never get to litigation because of the difficulty of locating the negligent parties and determining assets. We provide an understanding of the environment, nomenclature, and technology of the maritime world. The sophistication and automation that allows a few workers to move in 12 hours cargo tonnage that used to take 200 people a week to handle is impressive. The industry has its own language which can be very confusing and may have several names for the same item or action. An expert provides attorneys with a clear picture of the lead up to the accident, what happened, and the resulting actions. This is most often done by the creation of diagrams based on discovery information. Once the legal team itself has a clear understanding of events they can begin to apply the law.
Deposition questions need to be developed that the deposed can understand. Witnesses are often not highly educated, may be foreign born, and have English as a second language. Once deposed their depositions need translation and interpretation for follow-up. The maritime expert may propose additional persons to be deposed. There are people in managerial control or safety related activities that attorneys are not aware of.
Police, OSHA, and employer reports are confusing to people unfamiliar with daily marine operations. In many cases the police, USCG, and OSHA reports are simply wrong in critical areas. This is because police officers and/or compliance officers lack the same basic understanding as the attorneys attempting to decipher the reports months later. With official reports often taken at face value, it is critical to bring such errors to light.
A good maritime witness is well connected to other safety personnel in the industry. This allows him to research similar incidents and their results. He has other connections in insurance and on occasion law firms where he can pose hypothetical questions without compromising case confidentiality.
Any maritime expert witness who has worked in the field for many years (been there, done that) is quite capable of discrediting not only opposition operations experts but engineering witnesses, noise testing, accident recreations, management witnesses, and especially biased eye witnesses. Conversely he can proof read expert testimony from other favorable experts for accuracy and insure that the case is a more solid presentation.
Beware the expert witness that only wants a check. There are experts who always provide a report unexcelled in supporting who is paying them. Should the other side have an expert who knows the business, has recreated events, can support his findings citing depositions, laws, and regulations, and who believes in the case, he will expose these witnesses for what they are. When that happens the case is badly set back perhaps to the point of dismissal or nuisance settlement amount.
The report provided by a good maritime expert witness can run into dozens of pages with diagrams, photos, cited deposition testimony, cited regulations, and cited reports of all types. At its best it is a tour du force that leads to summery dismissal for defendants or summary judgments for the plaintiff. At least it should speed up the settlement process. He knows he has done a very good job with the report when he finds out his services are no longer required. At the very least he is confident in his findings and eager to be deposed. He sees his deposition as the next opportunity for success. The best maritime experts have never gone to trial.
Written by: Longshore Safety Expert Witness
Expert No. 1937