Mariner Loses Foot in Gruesome Towing Accident: 12-Hour Rule Violation Proven in Court

National Mariners Association

Letter to the Association from Nelson G. Wolff
[emphasis added by National Mariners Association]

Richard A. Block
National Mariners Association
124 North Van Ave.
Houma, LA 70363
Re: Kenneth Mercer v. Chem Carriers Towing, LLC

Dear Richard:

I am providing you with some information concerning this significant maritime injury/safety case and its recent settlement.

This case arose under the Jones Act for injuries suffered by Chem Carriers' deckhand/mate, Kenneth Mercer. Mercer was injured on April 15, 2009, while performing fleet work in Chem Carriers' Mile 207 fleet on the Mississippi River, near Baton Rouge, Louisiana. Mercer was the sole on-watch deck crew member for the M/V Laura Banta (photo attached), which was also crewed with a single licensed captain and another, off-watch, sleeping deckhand. While Mercer was securing a barge under tow to a fleet barge with a line, the M/V Laura Banta, operated by the captain, collided with the barge on which Mercer was standing, causing him to lose his balance. His left foot became tangled in the line as the barge began drifting down river and was crushed against a barge fitting, ripping his foot in half. Because his foot could not be salvaged, Mercer's left leg was surgically amputated just above the knee, leaving him with a stump. Mercer has required five surgeries to his stump, and will likely require additional surgery to his low back. See Medical Illustration attached. He is now permanently forced to use a prosthetic leg. A vocational counselor, Dr. David Strauser, determined that Mercer is permanently disabled from returning to work in the maritime industry where worked for 20 years.

We filed this case in U.S. Federal Court, Eastern District of Louisiana, in New Orleans, seeking compensation for Mercer as a result of Chem Carriers' failure to provide him with safe working conditions. Our investigation into the facts, aided by the expertise of Captain Gary Hensley, revealed that at the time of Mercer's traumatic injury, Chem Carriers had required its captain to work over 131/2 hours in the preceding 24-hour period, in violation of the federal regulation 46 U.S.C. § 8104 (12-hour Rule), which prohibits any licensed operator from working more than 12 hours in a 24-hour period. See Cpt. Hensley's Report attached. Coast Guard policy statements specifically state that boat operators are prohibited from working more than 12 hours in a 24-hour period in order to protect crewmembers from fatigue related errors. See USCG G-MOC Policy Letter 4-00, Rev-1 attached. Yet, despite the risks of fatigue, Chem Carriers had required the sole licensed operator on the M/V Laura Banta to work excessive hours with only one on-watch deck crew member.

[NMA Comment: Refer to NMA Report #R-370, Rev. 3 for a reprint of Coast Guard policy letter #G-MOC-04-00.]

Our extensive review with Captain Hensley of internal documents, log books, and company communications assisted in gaining admissions from Chem Carriers that the company required its vessel operator to work at any hour, day or night, and that it misinformed its operators about the amount work that could be performed under federal law. Despite these admissions, the company claimed that its vessel operators were not "working", and therefore not accumulating hours for purposes of the 12 hour rule, when its vessel's main engines were shut down. Chem Carriers suggested that because the M/V Laura Banta's engines were shut down for portions of the 24-hour period prior to Mercer's injury, its captain wasn't "working". We successfully responded, pointing to Coast Guard regulations, that "work" is made up of all tasks performed on watch, including administrative tasks. The Court agreed and held that the Coast Guard's broad interpretation of "work" included tasks performed by Chem Carriers' operators even when its vessel's main engines are turned off.

Maritime expert Captain Hensley also aided in determining that Chem Carriers failed to operate its towboat in a reasonably safe manner and failed to adequately secure/maneuver the towboat and barges. Instead of securing the barges with steel cables at the bow of the boat (facing), Defendant dangerously attempted to move the barge along the side of the boat with a single nylon head line which failed to provide a secure coupling (hipping). The company attempted to defend this shortcut industry practice, but we argued that headlining in high water conditions creates dangerous gaps and bumps. It was precisely this practice, which allowed a gap to form at the time of Mercer's injury, which created the collision that knocked him into the line. In depositions, we were able to obtain admissions from Chem Carriers' that it should have faced the barge instead of hipping it and that, because the barge was hipped, the captain could not see Mercer at the time of his injury.

Internal company documents also showed that Chem Carriers previously provided larger deck crews for the same fleet work. Yet, at the time of Mercer's injury, he had no assistance on the deck. Chem Carriers should have provided another deckhand, as required by its own company rules, to serve as a lookout for the captain as he operated the boat's controls and to call the bump.

Chem Carriers retained its own maritime expert, Captain John Sutton, who opined that the company provided Mercer with safe working conditions and that Mercer was at fault for his own injuries. However, Mercer's attorneys were able to refute these opinions by establishing that Chem Carriers' captain had admittedly worked excessive hours, the practice of hipping barges in high water creates gaps and bumps, and Chem Carriers failed to provide Mercer with adequate assistance by reducing its on-watch deck crew to one person. Further, Mercer's attorneys were able to establish that Mercer was not at fault for his injuries because he was knocked into the line due to a gap that had formed through no fault of his own and he was not made aware of the dangerous situation because no one called the bump.

The Jones Act requires a negligent employer to compensate an injured seaman for lost earning capacity, pain/suffering, and disfigurement. We fought in Court to obtain this compensation for Mercer's profound injuries. Mercer's foot was crushed and many nerves were severed. His foot was literally ripped in half and flew through the air, landing an adjacent barge. The dismembered foot was given to him as he was airlifted to a local hospital, where he underwent immediate surgery to clean debris from his exposed foot. He was taken home in Tennessee by ambulance for two additional surgeries by an orthopedic foot surgeon, who amputated the leg after he was unable to save Mercer's foot.

During the ensuing months, Mercer struggled with physical pain and post-traumatic stress disorder and anxiety. Despite repeated prosthetic adjustments, he has continued to experience discomfort and phantom pain. His family doctor testified that Mercer's pain is permanent and his altered gait is causing low back problems. He will require narcotic pain, nerve, and anxiety medicine for the rest of his life.

Prior to his injury, Mercer worked in the maritime industry for over 20 years and was earning approximately $50,000 in pay and benefits. In the years before working for Chem Carriers, Mercer had made much less. A vocational analysis showed that he has no transferable skills and is not gainfully employable. An economic expert calculated his financial damages alone to be approximately $600,000. Mercer, a father of two boys, has significant non-economic damages as well. The Carrier hired its own vocational and economic experts in an attempt to dispute these damages.

During the course of 2+ years of hard fought litigation and over a dozen depositions, the company maintained its denial of any responsibility. However, shortly before trial, Mercer's attorneys were able to secure a reasonable settlement of $2.25 million to fairly compensate him for his damages.

Please let me know if you have any questions, or need any further information.

Very truly yours,
Nelson G. Wolff