Offshore Drilling Accident Attorney 

Offshore Injuries:

By the very nature of their work, seamen, longshoremen, and offshore oil & gas workers are exposed to many conditions and substances which cause them serious illnesses and injury and even death.  Sometimes an illness will manifest itself years after exposure to toxic substances.  Unfortunately, some offshore companies and their insurers treat injured workers unfairly - often putting pressure on workers not to seek legal assistance to obtain all remedies to which they are legally entitled.  Maritime torts are unique because of the application of uniform federal maritime law.   

Maritime Torts:

Until less than twenty years ago, admiralty tort jurisdiction existed anytime a tort occurred on or over navigable waters. The Plymouth, 70 U.S. 20 (1866). Rarely were other factors considered necessary to jurisdiction. As commerce became more complex, the maritime situs test began to produce some strange results in marginal cases. It eventually led to an attempt to assert admiralty jurisdiction over an aircrash at the Cleveland, Ohio airport. When that case reached the Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U. S. 249 (1972), the test for applying maritime jurisdiction to torts was significantly changed. In addition to the maritime situs requirement, the court added the requirement of a maritime "nexus." Thereafter, admiralty jurisdiction extended to torts occurring on navigable waters if the activity involved or the wrong done bore a significant relationship to traditional maritime activity.

In the Fifth Circuit case of Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973), the court established four factors to be considered in determining whether a cause of action satisfies the "nexus" test of Executive Jet:

1. The functions and roles of the parties;
2. The type of vehicles and instrumentality's involved;
3. The causation and type of injury; and
4. The traditional concepts of the role of admiralty law.

Although Kelly v. Smith involved an injury to the operator of a small pleasure boat, there remained a question as to the extent to which maritime jurisdiction would apply to cases involving pleasure craft. This doubt was resolved in Foremost Insurance Co. v. Richardson, 457 U.S. 668 (1982), which involved the collision of two pleasure boats on a navigable river in Louisiana. Affirming the application of admiralty jurisdiction, the Supreme Court stated that although the primary focus of admiralty jurisdiction is the protection of maritime commerce, the federal interest in protecting commerce cannot be adequately served if admiralty jurisdiction is restricted to those individuals actually engaging in commercial activity. Thus, although the activity need not be commercial, it must bear a relationship to traditional maritime activity. As such, where pleasure boat accidents involve activities that might impact upon maritime commerce, maritime jurisdiction applies.

In 1990, the Supreme Court again considered the contours of maritime tort jurisdiction. In Sission v. Ruby, 497 U. S. 358, 110 S.Ct. 2892, 111 L.Ed. 2d 292 (1990), the Supreme Court held that jurisdiction under the general maritime law exists if the accident occurred on or in navigable waters and there is a substantial relationship between the activity giving rise to the incident and traditional maritime activity. The relevant activity is determined by focusing on the general conduct or character of the activity from which the incident arose, rather than particular circumstances surrounding the incident. It is noteworthy, however, that the Fifth Circuit continues to determine whether maritime tort jurisdiction exists upon the factors set out in Kelly v. Smith.

Jones Act / Seaman's Injuries:

The Jones Act is a federal statute that provides a cause of action for injured seamen.  It is not workers' compensation. It does not require payment regardless of fault.  A seaman must prove negligence or fault on the part of the vessel's owners, operators, officers, and/or fellow employees or by reason of any defect in the vessel, its gear, tackle, or equipment, i.e., unseaworthiness of the vessel. This means that the employer must do something unreasonable or fail to perform a reasonable act that would have prevented injury in order for the seaman to prevail.  Only a seaman can recover under the Jones Act. A seaman is a member of the crew of a vessel or someone who assigned to a vessel or a fleet of vessels. For example, those who work on tankers, freighters, tugs, supply and crew boats, barges, and fishing vessels as a member of the crew are considered seamen.  

Who is a Seaman?

The United States Fifth Circuit Court of Appeals established a test for seaman status in Offshore Co., v. Robison, 266 F.2d (5th Cir. 1959). Under Robison, seaman status could be achieved:

1. If there is evidence that the injured workman was assigned permanently to a vessel (including special purposes structures not usually employed as a means of transport by water but designed to float on water) or performed a substantial part of his work on a vessel; and
2. If the capacity in which he was employed or the duties which he performed contributed to the function of the vessel, the accomplishment of its mission, or the operation or welfare of the vessel in terms of its maintenance during its movement or anchorage for its future trip. Offshore Co. v. Robison, 266 F.2d at 779.

Thus, under the Robison test, crew members who were regularly assigned to a special purpose vessel came to enjoy seaman status as a matter of law, whether or not they had anything to do with the transportation function of that vessel. Colomb v. Texaco, Inc., 736 F.2d 218 (5th Cir. 1984); McDermott Inc. v. Boudreaux, 679 F. 2d 452 (5th Cir. 1982); Marine Drilling Co., v. Austin, 363 F.2d 579 (5th Cir. 1966); Producers Drilling Co., v. Gray, 361 F.2d 432 (5th Cir. 1966).

Robison was the settled state of the law in the Fifth Circuit until the mid 1980's when the court began to have an increasingly narrow view of seaman status. In 1986, the Fifth Circuit revisited Robison en banc, and a divided court decided to significantly modify Robison by holding that the permanency requirement in the seaman status test had to be judged in the context of the plaintiff's various work sites during the entirely of his employment with that employer, rather than only during the work period when the casualty occurred. Barrett v. Chevron, U.S.A., 781 F.2d 1067 (5th Cir. 1986). Additionally, the Fifth Circuit in Barrett also tightened requirements for achieving seaman status via multi-vessel affiliation by demanding all such vessels had to be operated together or under common ownership or control.

In 1987, the Fifth Circuit denied seaman status to shore based claimants who performed tasks specifically enumerated in the Longshore Act, such as ship repairers. Pizzitolo v. Electro/Coal Transfer Corp., 812 F.2d 977 (5th Cir. 1987). Recently, however, the Supreme Court in Gizoni v. southwest Marine, Inc., 1125 S.Ct. 486 (1991), determined that employees who are in occupations specifically covered by the Longshore Act are nonetheless entitled to a jury trial to determine their status as Jones Act seamen.

In 1989, the fifth Circuit had occasion to decide Wilander v. McDermott International, Inc., 887 F2d 88 (5th Cir. 1989). In a unanimous opinion, the court expressly rejected McDermott's invitation to add a requirement to the seaman status test that the claimant must be aboard the vessel primarily to aid in navigation. In Wilander, the court affirmed the jury's determination of seaman status based on the Robison test. Wilander involved an American seaman who went to work for McDermott International in the Persian Gulf as a painter-sandblaster foreman. Once overseas, Wilander was assigned to the Derrick Barge Nine, which served as a "mother ship" for all operations conducted by McDermott in the Gulf and provided quarters for all crews in the area. Mr. Wilander was in charge of sandblasting and painting the many small stationary platforms operated by McDermott in the Gulf. To accomplish this mission, he was given the use of a paint boat, the M/V Gates Tide. Wilander was injured on one of these small platforms when a high pressure line exploded. The jury found Mr. Wilander was a seaman. By way of the Fifth Circuit, the case went up to the Supreme Court. The Supreme Court, in deciding Wilander, concluded that since the Jones Act was passed in direct response to the ruling of the Supreme Court in the Osceola, 189 U.S. 158 (1903) which denied a tort remedy to seamen, Congress had adopted the definition of that term in use a the time the Osceola was rendered. Having examined this jurisprudence, the Supreme Court determined that, at the time of the passage of the Jones Act, there was not a requirement that a seaman aid in navigation.

Unseaworthiness:

A vessel owner owes to the seamen an absolute and non-delegable duty to furnish a vessel reasonably safe and fit in hull, gear, appliances, ways, appurtenances and manning for it's intended purpose. Mahnick v. Southern Steamship Co., 321 U.S. 96, 64 S.Ct. 455, 88 L. Ed. 561 (1944); Sanford v. Caswell, 200 F.2d 830, 153 AMC 339 (5th Cir. 1953).

Longshoremen / 3rd Party Claims:

The Longshore & Harbor Workers' Compensation Act provides for the payment of compensation benefits for disability or death of an employee coming under it, if the disability or death results from an injury occurring upon the navigable waters of the United States. An adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing or building a vessel are considered "navigable waters" under the statute. Thus, maritime workers whose cargo activities in connection with the vessel carry them to dockside at the time of injury are covered under the 1972 amendments to the Act. Exceptions to coverage are:

1. A master or member of a crew of any vessel (this eliminates all seamen or members of the ship's company who have their Jones Act remedy for recovery);
2. Any person engaged by the master to load or unload or repair any small vessel under eighteen tons;
3. An officer or employee of the United States or any agency thereof or of any state or foreign government, or of any political subdivision thereof;
4. No compensation is payable if the injury was occasioned solely by the intoxication of the employee or by the willful intention of the employee to injure or kill himself or another.

By amendment of September 28, 1984, where a person is employed in ship building, repairing or breaking services and his employer is the owner, owner pro hac vice, agent, operator, or charterer of the vessel, the injured person has no right of action for tort against his employer. His exclusive remedy is under the Longshore and Harbor Workers' Compensation Act.

In 1984, the term "employee" was redefined as "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor worker including a ship repairman, ship builder and ship breaker but such term does not include:

1. Individuals employed exclusively to perform office, clerical, secretarial, security or data processing work;
2. Individuals employed by a club, camp, recreational operation, restaurant, museum or retail outlet;
3. Individuals employed by a marina and who are not engaged in construction, replacement, or expansion of such marina;
4. Aqua culture workers;
5. Individuals employed to build, repair or dismantle any recreational vessel under sixty-five feet in length;
6. A master or member of a crew of any vessel;
7. Any person engaged by a master to load or unload or repair any small vessel under eighteen tons.

In Northeast Marine Terminal Co. v. Caputo, 432 U. S. 249, 97 S.Ct. 2348, 53 L.Ed. 2d 320 (1977), the Supreme Court clarified the extent of coverage of the 1972 amendments with relation to the area and work activities encompassed by the LHWCA. This case involved two workers, one a checker and the other a terminal laborer. Pursuant to the 1972 amendments to the LHWCA, situs under the Act includes navigable waters and adjoining pier, wharf, dry dock, terminal, building way, marine railway or other adjoining area customarily used by an employer in loading, unloading, repairing, or building a vessel. In addition to situs, the status of workers covered under the Act encompassed those "engaged in maritime employment" which included "any longshoreman or other person engaged in longshoring operations and any harbor worker including a ship repairman, ship builder, or ship breaker". The plaintiffs in Caputo were held to come within the coverage of the LHWCA, both with regard to situs and status.

905 b

There are basically three criteria which must be met in order for the plaintiff to recover on a claim under §905 b of the LHWCA: 

• The plaintiff must be a person covered by the LHWCA;
• The plaintiff must have suffered an injury on or in connection with a vessel'
• The injury must be caused by the negligence of the vessel, its owner, operator, charterer, agent or crew member.

  Under the dual capacity doctrine, a person covered by the LHWCA can bring an action against a vessel under §905 b even if his employer, who was answerable in compensation benefits, owed the vessel, provided the worker was injured by "vessel" as opposed to "employer." Jones and Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2554, 76 L.Ed. 2d 768 (1983); Smith v. M/V Captain Fred, 546 F.2d 119 (5th Cir. 1977); Eagle Picher Industries Inc. v. U.S., 846 F.2d 888 (3rd Cir. 1988). Note that in 1984 Congress amended xx905 b to eliminate the negligence actin against the injured person's employer for the negligence of a vessel, even if the employer was the owner, operator or charterer of the vessel if the injured person was employed "to provide ship building, ship repairing, or ship breaking services". In Gay v. Barge 266, 915 f.2d 1007 (5th Cir. 1990) the court held that in order to classify as an employee for purposes of determining whether a claim under §905 b is barred, an analysis of the employee's overall duties or assignments for a significant time interval must be undertaken to determine whether the employee's permanent duties or interim duties over an appreciable period of time are such that the employee would be a covered ship builder, ship repairer or ship breaker within the meaning of §902 (3).

  In Scindia Steam Navigation Co. v. de los Santos, 451 U.S. 156, 101 S.Ct. 1614, 68 L.Ed. 2d 1 (1981) the court explained the general duties owed a ship owner to maritime workers:

  1. The ship owner must exercise ordinary care under the circumstances to have the ship and its equipment in such condition that an expert and experience stevedors will be able by the exercise of reasonable care to carry on its cargo operations with reasonable safety;
  2. The ship owner must warn the stevedore of any hidden dangers on the ship, or with its equipment, of which the ship owner is or should be aware in the exercise of reasonable care, that would likely be encountered by the stevedore, that are not known by the stevedore and that would not be obvious to or anticipated by him if reasonably competent in the performance of his work;
  3. Once stevedoring operations have begun, the ship owner is entitled to rely on the stevedore and generally owes no duty to inspect or supervise the cargo operations or discover dangerous conditions that develop. However, if the ship owner learns that a hazardous condition exists and the stevedore will not or cannot correct the danger and the longshoreman cannot avoid it, the ship owner has a duty to intervene in the operations to eliminate or neutralize the hazard. Further, the vessel has a continuing duty to exercise reasonable care with regard to the condition of the vessel if the owner actively participates in the operations, maintains control over the area, or such a duty is imposed by a contract, law, or custom.

  What emerged from the Scindia decision was the basic principle that responsibility for the safety of the longshoreman primarily rests upon the stevedore, and the majority of litigation following the Scindia decision deals with injuries that occurred after stevedoring operations had begun. Under these circumstances, there are basically three basis of liability:

  1. The failure to warn of hidden defects;
  2. Injuries caused by the failure to intervene in the stevedoring operations; and
  3. Injuries that are caused while the vessel is still under the control of the vessel owner or charterer. See Helaire v. Mobil Oil co., 709 F.2d 1031 (5th Cir. 1983).

  With respect to the duty to warn, attention has been placed upon the effect of an open and obvious condition. What appears to have emerged from the case law is the rule that an obvious condition may not give rise to a duty on the part of a ship owner to warn the maritime worker of the condition; whoever, it may constitute a breach of the duty to provide a reasonably safe ship and equipment to the stevedore to conduct its operations particularly if the hazard is under the control of the ship. See Treadaway v. Societe Anonyme Lewis/Dreyfus, 894 F.2d 161 (5th Cir. 1990); Myers v. M/V Eugenio C., 919 F.2d 1070 (5th Cir. 1990); Martinez v. Korea Shipping Corp. Ltd., 903 F.2d 606 (9th Cir. 1990); Massinter v. Tenneco Oil Co., 867 F.2d 892 (5th Cir. 1989).

  With respect to liability for injuries caused by the failure of a vessel owner to intervene in the stevedoring operations, the Fifth Circuit in Randolph v. Laeisz, 896 F.2d 964 (5th Cir. 1990) held a vessel only has a duty to intervene if it has actual knowledge that a condition poses an unreasonable risk of harm; actual knowledge that it cannot rely on the stevedore to protect its employees; and that if the condition is un-remedied, it poses a substantial risk of injury. In drawing a distinction between knowledge of the condition and knowledge of the dangerousness of the condition, the court held knowledge of the condition in and of itself did not render the failure to intervene negligent. Consequently, before the duty to intervene arises, plaintiff must demonstrate the ship owner has actual knowledge of the condition that poses an unreasonable risk of harm to the longshoreman and of actions by the stevedore that are obviously improvident under the circumstances.

  With respect to injuries that are caused while the vessel is still under the control of the vessel owner or charterer, courts have held that the charterer is not liable under §905 b for the negligence of the vessel unless the cause of the harm is within the charterer's traditional spear of control and responsibility, or has been transferred thereto by the clear language of the charter agreement. Kerr McGee v. Ma/Ju Marine Services, 830 F.2d 1332 (5th Cir. 1987); Zepherine v. Conoco Oil Co., 884 F.2d 212 (5th Cir. 1989).

Rig & Platform Injuries:

The Outer Continental Shelf Lands Act (OCSLA) is a federal statute that provides for compensation for death or injuries "occurring as the result of operations conducted on the Outer Continental Shelf (OCS) for the purpose of exploring for, developing, removing, or transporting by pipeline the natural resources, or involving rights to the natural resources, of the subsoil and seabed of the OCS."  The OCS encompasses all submerged lands beyond state territorial waters but within U.S. territorial waters.  The definition includes artificial islands and fixed structures upon the OCS, i.e., fixed oil drilling platforms.  Injuries occurring on fixed oil platforms within state territorial waters are generally governed by state law. 

Product Liability:

A seaman injured as a result of using a toxic substance aboard a vessel or as a result of being exposed to a toxic cargo may pursue a Jones Act case, an unseaworthiness case and/or a case for failure to provide maintenance and cure against his employer. However, unless the chemical company that produced the substance can be identified as a "carrier" or "operator" of the vessel involved, no Jones Act, unseaworthiness claim nor maintenance and cure claim can be maintained against the chemical company. Schrurrer v. Conrail, 792 F.Supp. 170 (DC Conn. 1992).

The General Maritime law incorporates theories of product liability and strict liability. East River Steamship Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 F.Ct. 2295, 90 L.Ed.2d 265 (1986). The seaman may bring a third party case against the manufacturer under a general tort theory such as negligence and/or strict liability in tort. In toxic exposure and environmental tort litigation, the plaintiff primarily relies on market defect theories of failure to warn. The plaintiff, however, can also rely on numerous federal and state environmental statutes to establish the appropriate standard of care and prove the defendant manufacturer negligent as a matter of law. See Restatement (Second) of Torts §§ 286 and 288 (1965). A plaintiff may be able to use the following federal environmental statutes in his case either to prove negligence per se or at the very least, evidence of the appropriate standard of care:

1. The Federal Insecticide Fungicide and Rodenticide Act (FIFRA), 7 U.S.C. §§ 136-136(y), regulating the registration, use, and labeling of pesticides, etc.;

2. The Toxic Substances Control Act, 15 U.S.C. §§ 2601-2671, regulating chemicals which present an unreasonable risk of harm to human health or the environment;

3. The Clean Water Act, 33 U.S.C. §§ 251-1387, regulating chemical discharges of pollutants into navigatable waters;

4. The Clean Air Act, 42 U.S.C. §§ 7401-7671, regulating the release of emissions into the air;

5. The Comprehensive Environmental Response Compensation and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, regulating the response to hazardous waste spills.

Toxic Torts:

Most of the "action" in maritime personal injury today will be in the toxic tort area. Seamen are exposed to a number of toxic substances both as cargo (benzene, toluene, xyolene) and as substances they work with (pesticides, solvents, cleaners, paints).

WHEN DOES THE CAUSE OF ACTION ACCRUE?

Generally the cause of action accrues from the date of discovery of the illness or injury or reasonable discovery, rather than the actual onset of the disease or damage or exposure. 122 ALR Fed. § 2[b]. However, the law in this area is not clear and the question may be not when does the cause of action accrue, but rather which cause of action are you talking about?

As the law has developed, there now exists a real question and a dilemma for the plaintiff's attorney as to when the cause of action accrues:

Haggerty v. L & L Marine Services, Inc.

In 1986, the Fifth Circuit Court of Appeals decided the case of Haggerty v. L & L Marine Services, Inc., 749 F.2d 315 (5th Cir. 1986). Mr. Haggerty was employed by L & L Marine Services, Inc., in April 1982, serving as a tankerman on a barge being loaded with chemicals at the Union Carbide Plant in Guyanilla, Puerto Rico. Due to an alleged defect in the barge and/or the equipment being used to load the chemicals, Haggerty was completely drenched with dripolene, a chemical containing benzene, toluene and xyolene. Haggerty doused his clothes and shoes with water immediately and then removed the clothes and took a shower several hours later. Haggerty suffered from dizziness, followed by leg cramps and the following day, he felt stinging in his extremities. Because of the symptoms, the extent of his immersion in the chemical, and his understanding of the carcinogenic effect of that chemical, Haggerty was fearful that he would contract cancer. The court noted in it's opinion that Haggerty clearly did not have any disease at the time that the case was tried and suffered no manifestations of any symptoms or ailments attributable to cancer. He had consulted with several doctors, however, and it was the suggestion of his doctors that he continue to undergo periodic medical examinations and laboratory tests.

Haggerty brought suit under the Jones Act for damages which included pain and suffering, mental anguish due to the fear of developing cancer, and the medical expense of regular checkups to monitor against that disease. The District Court granted summary judgment for the defendants on the ground that no cause of action had accrued. The Fifth Circuit reversed the District Court and held that Haggerty suffered physical injuries and was entitled to pursue his Jones Act case. The court stated that the fear of cancer and attendant medical costs were damages which were recoverable citing the "single cause of action" rule.

The Fifth Circuit stated that "the cause of action has accrued if Haggerty's injury was discernible on the occasion when he was drenched with the toxic chemical." Albertson v. T.J. Stevenson & Co., Inc., 749 F.2d 223 (5th Cir. 1984). In the Albertson case, the Fifth Circuit had held that limitations barred the Jones Act and General Maritime law claims of a seaman because the plaintiff's headaches and nausea and a subsequent loss of consciousness gave the plaintiff knowledge of critical facts that he had suffered more than a minor injury.

In the Haggerty case, the Fifth Circuit allowed recovery for present fear or anxiety due to the possibility of contracting cancer and the costs of periodic medical checkups. Haggerty at 319. The Haggerty court recognized the plaintiff's (and his attorney's) dilemma. The court stated:

The victim of exposure to toxic substances which cause present harm and which may at some future time cause cancer or other serious disease is further victimized by the single cause of action rule. If Haggerty, for example, cannot prove a future probability of his contracting cancer when his trial is conducted but thereafter does contract the disease because of the 1982 exposure at Guyanilla, he will have no remedy for his damages suffered from cancer. Haggerty at 320.

The "single cause of action" rule requires a plaintiff to bring all of his causes of action, i.e., present injuries (headaches, nausea, dizziness, etc.), together with his cause of action for cancer and it's effects without knowing:

1. whether he will in fact develop cancer; and

2. the extent of his damages as a result of the cancer.

The Haggerty court discussed these issues but did not rule as to how courts should handle the case in the future other than to say that when the proper case is presented to the Fifth Circuit, the panel hoped that the en banc court would consider this problem, if Congress had not acted upon it by that time. Haggerty at 321.

METRO-NORTH COMMUTER RAILROAD COMPANY V. BUCKLEY

In 1997, the Supreme Court of the United States decided Metro-North Commuter Railroad Co. v. Buckley, 117 S.Ct. 2213, 138 L. Ed.2d 560, 1997 AMC 2309 (1997). Buckley was a railroad employee who for three years (1985-1988) was exposed to asbestos for about one hour per working day. In 1987 Buckley attended an "Asbestos Awareness" class and became fearful that he would develop cancer. Buckley did not manifest any symptoms of disease at the time he brought suit.

Buckley sued his employer under the FELA, 45 U.S.C. § 51, for negligence. He sought damages for his emotional distress (the fear of contracting cancer) and to cover the costs of future medical checkups. His employer conceded negligence, but did not concede that Buckley had actually suffered emotional distress, and argued that the FELA did not permit a worker, who has suffered no physical harm, to recover his emotional distress or the costs of medical checkups.

The District Court dismissed the plaintiff's claim finding that Buckley had not suffered an injury because he did not manifest symptoms of disease. On appeal, the Second Circuit Court of Appeals reversed stating that Buckley had indeed shown evidence of "physical impact" (the breathing into his lungs of the asbestos fibers) which was "massive, lengthy and tangible". Buckley 79 F.3rd 1337 (2nd Cir. 1996). The Second Circuit allowed recovery for the emotional distress and the costs of medical monitoring.

In reviewing the Second Circuit the Supreme Court focused on the meaning of the term "physical impact", as that term was defined in Consolidated Rail Corporation v. Gottchall, 512 U.S. 532 (1994). The Supreme Court found that Buckley had not suffered a "physical impact" as defined in Gottchall because:

1. The impact was not a physical contact that caused or might have caused, immediate traumatic harm such as a car accident, gas explosion or train collision;

2. The exposure was not one consistent with Gottchall's "zone of danger test" because it did not involve a "physical invasion or menace";

3. Common Law Courts, with few exceptions, have denied recovery to plaintiffs who are disease and symptom-free; and

4. It is difficult for judges and juries to separate valid and important claims from invalid or "trivial" claims.

The Supreme Court denied Buckley's claim for the reasons stated above and also denied him the costs of medical monitoring, at least to the extent that he sought these costs on a lump sum basis.

THE QUESTION UNANSWERED BY BUCKLEY & HAGGERTY

The Haggerty and Buckley cases when read together leave many questions unanswered. The most important dilemma for the plaintiff's attorney is:

What happens to an injured seaman who suffers an acute physical impact and has present injuries and possible future injury or illness but who does not manifest symptoms of disease which may take years to develop?

For example, these decisions do not resolve how to handle the following scenario:

A worker is employed as a tankerman aboard a barge which is carrying a cargo of toxic chemicals including benzene, toluene and xyolene. The barge runs into a dock and splits in two. While walking on the deck during the collision, a tankerman falls into the chemical soup and is not rescued for approximately one hour. He is then taken to a hospital where he is treated for the acute symptoms of headache, dizziness and general malaise. Of course, he is not currently suffering from cancer or other disease because these effects will not occur until much later, if at all.

The seaman must bring his cause of action for the immediate injuries i.e., headaches, dizziness, general malaise within the three years statute of limitations. The Supreme Court has made it clear that he cannot bring a cause of action for fear of cancer or the increased probability of cancer without a showing of ongoing symptoms of the disease. If he does not bring an action for the effects of cancer within the three year period from the date of his injury, is he time barred if he later develops cancer?

This creates a dilemma for the plaintiff's attorney in deciding when and if to bring suit for the acute injuries. Additionally, if there is a real possibility that the short term exposure could have caused long term health effects the plaintiff's attorney should be vigilant not to allow any language in the release that would foreclose further actions if the seaman develops a disease that is attributable to the short term exposure.

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The Giardino Law Firm investigates offshore injury claims. 

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