[B]Case Name: [/B][I]In Re: Ms. Madeline [/I]
[B]Date Decided: [/B]June 8, 2009
[B]Court: [/B]United States District Court Southern District of Florida
[B]Judge: [/B]Judge Torres
[B]Citation: [/B]WL 3296668[B]Background:
[/B]This action stemmed from the deaths of three longshoremen aboard the [I]M/V Madeline[/I] during cargo operations while the vessel was berthed.
Bangor Castle Shipping Company (“Petitioners”), owner and operator of [I]Madeline[/I], was hired as the stevedore to load assorted cargo on the vessel. One item was a tank container filled with hazardous gas. Petitioners prepared the load plan on how the cargoes were to be stowed on board the vessel.
[I]Madeline’s [/I]cargo hold ventilation/blower system was not working properly to adequately ventilate the subject gas in event of a leak. Petitioners had an opportunity to inspect and repair the ventilation system for the cargo holds prior to the incident but didn’t.
During the early morning hours on the date of the incident the vessel’s crew, who were lashing down/securing the containers and machinery began to feel ill and reported this to the second mate.
A longshoreman told the crew to continue working while he went to check on the container and 45-60 minutes later was found lying at the bottom of the hold, dead from oxygen deprivation. Two other longshoremen went into the hold to rescue the man and died as well.
Widow of the first longshoremen, Sooknanan brought an action under a Florida Wrongful Death Act (“FWDA”) and eight claims under the Longshore Harboer Workers’ Compensation Act (“LHWCA”), four of which are premised on the doctrine [I]res ipsa loquitur[/I].
Survivors of the other two men brought similar actions against Petitioners.
Petitioners moved to dismiss the claims on various ground. First, they claim that the Florida wrongful death claims were preempted by federal maritime law and the exclusivity provision of the LHWCA. They also contended that claimants cannot assert claims for unseaworthiness of the vessel and that the claims are not supported by res ipsa loquitur because the tank containing the gas was under the exclusive control of the stevedoring company.
[/B]Did this Court grant or deny Petitoners’ Motion to Dismiss?
[/B]Petitioners first argued that the Florida wrongful death claim was preempted by federal maritime law and the LHWCA.
This Court found that because the decedents were longshoremen, covered by LHWCA, and that the remedy in LHWCA provided is “exclusive of all other remedies against the vessel except remedies available under this chapter” that the Florida Wrongful Death claim is preempted.
Accordingly this Court dismissed plaintiffs’ Florida wrongful death claims.
Moreover, because the LHWCA applied then the plaintiffs’ unseaworthiness claims are barred. Plaintiffs however, argued that they claim they have identified defects in the [I]Madeline [/I]in the course of alleging that defendants breached certain duties and obligations imposed upon a vessel owner.
This Court agreed that they had breached duties and were liable under the LHWCA.
Finally, the plaintiffs have premised their LHWCA claims upon the doctrine of [I]res ipsa loquirur[/I]. This doctrine permits a plaintiff to prove negligence through circumstantial evidence. *
Plaintiffs argued that the decedents were without fault with regard to the gas incident but that the ventilation/blower system of the [I]Madeline [/I]was under [I]exclusive control [/I]of Petitioners and the vessel. *
Petitioners countered that plaintiffs had not made out a RIL claim because the instrumentalities that caused the deaths were at all material times under the exclusive control of decedents’ employer.
However, the Court found contrary to the Petitioners’ claims. The Court found that at the time the crew reported to one of the decedents they felt ill the Vessel’s crew had “complete possession, custody and control of the hold and the cargo inside, including the container filled with gas”.
At the time of the incident, the longshoremen were not in exclusive possession and control of the cargo and its operations. Rather the vessel’s crew had control for lashing and securing. As such, this Court held that the plaintiffs’ have stated claims against Petitioners for [I]res ispa loquitur[/I] negligence.
Accordingly this Court denied the Petitioners’ motion to dismiss against the plaintiffs’ claims.
This Court examined the applicability of [I]res ipsa loquitur[/I], which is latin for “the thing itself speaks”. [/B]
[B]The doctrine will apply if (1) the injured party was without fault (2) the instrumentality causing the injury was under the exclusive control of the defendant, and (3) the mishap is of the type that ordinarily does not occur in the absence of negligence. [/B]
[B]The second prong was examined by this Court. The Petitioners claimed that the stevedoring employer had complete control of the operations, however, at the time of the incident, this Court found that the vessel’s crew had complete control as it lashed and secured the containers down.[/B]
[B]Steve Gordon [/B]*