Mercer v. CHEM CARRIERS LLC

Citations: 790 F. Supp. 2d 478; 2011 A.M.C. 1597; 2011 U.S. Dist. LEXIS 52578; 2011 WL 1872580Docket: Civil Action 10-117

Court: District Court, E.D. Louisiana; May 17, 2011; Federal District Court

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Kenneth Mercer filed a lawsuit against Chem Carriers Towing, L.L.C. in the Eastern District of Louisiana, seeking relief under the Jones Act and General Maritime Law following the amputation of his left foot on April 15, 2009, while employed as a mate. The incident occurred while Mercer was securing a barge to the tug M/V LAURA BANTA, captained by Jimmie Kirkman. Kirkman's work hours leading up to the incident are disputed, with records indicating he worked various hours over multiple days, ultimately totaling 5 hours and 45 minutes on April 14 and 5 hours and 40 minutes on April 15. Kirkman reportedly had at least 10.5 hours of rest between shifts. Mercer claims that Kirkman violated the 12-hour work rule and was fatigued at the time of the accident, attributing his injury to this fatigue. He argues that Kirkman had worked 13.5 hours in the 24 hours leading up to the injury without any emergency situation justifying extended hours, which would breach federal regulations on safe working hours. Kirkman, however, testified that he was not fatigued when the injury occurred.

Plaintiff claims that Kirkman was on duty and did not rest during 13.5 working hours, with the Coast Guard defining "rest" as being off duty and allowed to sleep uninterrupted. Defendant aims to exclude evidence suggesting a violation of 46 U.S.C. 8104(h), which prohibits licensed mariners from working more than 12 hours in a consecutive 24-hour period. Defendant argues that the 24-hour period is defined as starting and ending on a calendar date, while Plaintiff contends it should be calculated from the time of the injury backward. Defendant criticizes Plaintiff's reliance on a U.S. Coast Guard Policy Letter, which lacks legal authority, to reinterpret the statute. The Policy Letter aligns with the statute's requirement that licensed operators not exceed 12 hours of work in any 24-hour period, except in emergencies. Plaintiff intends to use liability expert Gary Hensley to instruct the jury on this interpretation, which Defendant argues improperly encroaches on the court's authority. The core issue is whether the 24-hour period is defined by a calendar day or from the moment of injury. Previous case law, particularly Judge Berrigan’s ruling in Swan Crewboats, Inc. v. Phipps, suggests that violations occurring more than 24 hours before an incident may be considered irrelevant. Judge Berrigan also indicated that the Pennsylvania rule applies only in specific collision cases.

The Court declined to apply the Pennsylvania Rule broadly, stating that it would create an unwarranted presumption of negligence for any statutory violation related to vessel injuries at sea. The Court clarified that the 12-hour rule pertains to the period immediately before an accident, activating The Pennsylvania rule only if there is an impact with another object. It distinguished the case Reyes v. Vantage S.S. Co., where negligence was presumed under a different doctrine, making it irrelevant to the current context. The Fifth Circuit's decision in Archer Daniels Midland Co. v. M/V Freeport found no violation of section 8104(h) when a captain worked 11 hours instead of a scheduled 24, indicating that the 24-hour calculation should start from the time of injury. The Defendant referenced Elms v. Crowley Marine Service, which calculated work hours starting at midnight, but the court did not mandate this approach, supporting instead a focus on the hours immediately preceding the injury. The Fifth Circuit's comments in Garrie v. James L. Gray were also noted, but the Defendant misinterpreted them by neglecting relevant statutory language. The Wylie v. Foss Maritime Co. case mentioned the 12-hour limit but similarly did not specify a midnight start for counting. Ultimately, while there is no definitive Fifth Circuit ruling on this matter, the statute's language and previous rulings support the Plaintiff's interpretation. Consequently, the Court denied the Defendant's Motion in Limine, allowing evidence of the potential section 8104(h) violation and recognizing an existing factual dispute regarding the hours Captain Kirkman worked prior to the accident and the applicability of The Pennsylvania rule.