By John K. Fulweiler
It’s hard to sauce up the law like you might a galley full of dry chicken. Problem is, there’s just never enough sauce to make reading the law anything but dry and that’s why it falls on these shoulders to work my culinary magic. Tuck into our main course featuring a Texas decision highlighting an interesting Jones Act wrinkle with a side of maritime lawyer troubles. Go on, give it a taste.
No matter how developed your culinary pallet, this Jones Act decision involves a fact pattern familiar to any of us who’ve done some laboring. How it sets up is the plaintiff was working aboard a dredge, having just finished cutting an anchor chain with a hot torch. He stands, torch in hand, and walks near two crew attempting to reattach the cutterhead. The plaintiff’s testimony is the dredge captain yelled at him to help lift a heavy socket-wrench assembly, and plaintiff tucked the torch under his arm and lent his muscle to the endeavor. Later, plaintiff reports his arm was hurt and he ultimately sued. The curious wrinkle you can taste in the main dish is the “specific order” exception to a claimant’s own negligence under the maritime law. Generally speaking, when a crewmember is carrying out a specific order (and what that is gets sort of technical) and is injured, her damages may not be reduced by a finding of her own negligence as might otherwise be the case. So here, when the jury awarded plaintiff $420,000 the court couldn’t reduce the damages by the 50% of fault the jury assessed against plaintiff. Plaintiff got the whole bundle. Neat dish, huh?
Now the side isn’t something we serve all that much, but it brings out the flavors of what it’s like to practice law from the attorney’s perspective. You need some background. Before trial, the attorneys and the judge typically get together to discuss various procedural issues including what charges (or instructions) the court will read the jury. Here, the court apparently told the attorneys during such a charging conference that “I’m not going to mess with this any further.” The next day before the trial begins, defense counsel asked the court to consider a proposed definition of a “specific order.” Hey, I’m on the claimant’s side usually, but I can see where the ends of justice might be served by including such an instruction. The court refused the instruction “mainly because it’s not timely.” Fourteen pages later, the appeals court upheld the trial court’s decision on that point with lots of noise about the court’s discretion and inherent powers and some reference to the trial court having “admonished” the attorneys – a word meaning to reprimand that I don’t much like and which courts use a little too liberally for my taste buds.
At any rate, procedural circumstances like these are stressful situations and I submit court made deadlines risk outcomes driven by procedure over substance. I don’t know what occurred in this instance, but I don’t like situations where the chef’s deadlines trump considerations of what might be fair and right. They’re a lot of moving parts to readying for trial and, I ask what would’ve been the harm to quickly hear arguments on that charge? Again, without commenting on this case but simply as a broad inquiry, I wonder sometimes how much the human condition affects justice? More than we realize, no doubt making the efforts of kitchen workers like myself all the more important.
Enough of the kitchen; I pursue maritime claims. I may tilt at the occasional windmill and sometimes draw the wrong side of the legal coin, but I’m always championing my client’s claim. We pursue claims for breach of contract, claims for injury and the always wrenching death claims. Liability requires fault and if there’s fault, we’ll find and highlight (and bang the table) as to how the fault caused our client’s injuries. It’s a little eddy of the vast legal world, but it’s as close as you can get to living a white collar life of making wrongs right. Worry maybe I’m too passionate? Don’t. I am our client’s voice and it’s a responsibility I take with awesome seriousness. If you were in my office, you’d want nothing less from me.
If you’re on the other side of the table and facing a lawsuit as a vessel owner, I have some thoughts. Be engaged. Your motives and your lawyer (and insurer’s) motives may not always be consistent. You should ask for status updates and make regular inquiries as to whether settlement offers have been made or settlement demands received. Sit down with your lawyer occasionally and demand to know the end game, demand an explanation as to the strong points being made by the claimant’s attorneys, and ask your lawyer to explain your defenses and the likelihood of success. Just because you have insurance doesn’t mean you should forget the claim and I’d wager, your involvement will protect your best interests and may result in an earlier resolution.
In the meantime, get sailing and cut up that blue water with foaming streaks of wind-powered etching. And don’t forget to be kind too, man. These days I don’t see as much kindness as there should be; it’ll get you further than you'll realize.
Underway and making way.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293), or visit his website at saltwaterlaw.com.