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- Arnold & Itkin

Orion Marine Group May Evoke Antiquated Law to Limit the Value of Worker’s Lives

In the moments before a deadly explosion rocked the Corpus Christi Ship Channel on the morning of August 21, the crew of a vessel owned by Orion Marine Group, the Waymon L. Boyd, worked to dredge the bottom of the channel.

At 8 am, the explosion erupted, followed by an intense fire. Those who survive explosions are often surprised by their power. The displaced superheated air creates a shockwave that throws people off their feet, renders them temporarily deaf, leaving them stunned and scrambling for their lives.

To escape the flames that had engulfed the Waymon L. Boyd, those who were able leapt overboard into the channel. Two were later rescued by the Coast Guard. Those who could not escape—four men trapped in the hold of the ship —perished when the vessel broke apart, foundered, and came to rest at the bottom of the channel.

The bodies of the lost could not be recovered for days.

Four members of the 19-man crew died in the catastrophic explosion and fire. The others suffered injuries, with six requiring hospitalization. The injuries included severe burns, head trauma, and life-altering orthopedic injuries. Each is now afflicted with the horror of escaping a fiery maritime disaster, knowing others suffered an agonizing death.

An Apology Likely Followed by an Insult

As the disaster made headlines, Orion Marine Group issued a statement offering sympathy to those injured and to the families of the missing, but they acknowledged no fault, framing the explosion as an accident—something no one could have predicted.

While the National Transportation Safety Board announced their investigation, no official explanation for the disaster has been issued, although key details are clear enough: the dredge struck a propane line shortly before the explosion.

Like so many maritime disasters, this explosion and fire could have and should have been prevented.

In previous maritime disasters, while the families of those who perished mourned, and as survivors and their families grappled with the ramifications of the disaster, those impacted learned they would be sued by the company they worked for. Some were still in the hospital when they received the news.

If they're like any of the offshore companies we've dealt with before, Orion Marine Group will soon file a claim under the Limitation of Liability Act of 1851, naming anyone with a potential claim resulting from the explosion as a defendant in the lawsuit—including the survivors and the families of those who were lost.

Orion’s lawsuit will likely seek to limit recoveries of the victims and their families to the value of the unsalvageable ship, which is essentially nothing. Moreover, Orion’s Liability Action will seek to freeze any existing lawsuits against the company, and prevent additional suits from being filed, short-circuiting the worker’s constitutional right to a trial by jury. It triggers a long legal process that will be decided by a single judge rather than a jury of peers.

Maritime litigation is often resolved before a court grants or denies Limitation of Liability; however, the Limitation Action significantly slows the process and puts the claimants at an unfair disadvantage. Victims must first win a years-long lawsuit against well-financed companies just to have the opportunity to move forward with their own claims. During this time, survivors and families of victims struggle with horrific loss and unimaginable injuries while contending with medical bills and loss of income. It’s a nightmare scenario that the responsible parties often use to force claimants to settle for far less than they deserve.

What Is the Limitation of Liability Act of 1851?

Congress passed the Limitation of Liability Act in 1851, in the age of wooden sailing ships, in an attempt to protect and foster the young nation’s merchant fleet. It was a time when insurance policies were not commonly available to ship owners as the maritime trade was plagued with unpredictable storms, poorly charted waters and myriad other risks.

The 169-year-old law predates the Civil War and was meant to limit the liability for the owners of vessels in the aftermath of maritime disasters for which the causes were beyond the “privity and knowledge” of the owner. The law recognized that the master of a 19th Century vessel had sole command of a ship as he was unable to communicate with the shore while at sea.

21st-century vessels, however, benefit from advanced weather prediction models, satellite weather monitoring, global navigation and communication networks, and advanced tracking systems to monitor shipping routes. Moreover, practically all commercial vessels carry substantial insurance policies now that the cause of so many traditional maritime disasters are predictable and preventable.

How the Limitation of Liability Act Is Used Today

Shipping companies and their insurance companies use the antiquated Limitation of Liability Act to delay justice for survivors and victims’ families in the wake of catastrophic disasters caused by the companies, with the hope that the Court will limit what they owe to a fraction of the compensation they would be obliged to pay if a similar event happened on land.

As maritime attorneys, at Arnold & Itkin, we have seen shipping companies and their insurers revert to this old playbook countless times. A disaster kills or severely injures numerous people. At first the company appears sympathetic, then, inevitably, they hide behind the antiquated law and sue their own workers to set a cap on the compensation needed to rebuild their lives.

Insurance Claims Profit Companies, Not Survivors or Victims’ Families

When a Bouchard Transportation barge exploded off the coast of Port Aransas in 2017, the blast killed two crew members and injured others. An investigation revealed the explosion was caused by a buildup of oil vapors in a void—a problem Bouchard had known about for years. In fact, two captains quit Bouchard due to safety concerns, but the company continued to operate its dangerous and poorly maintained barges.

Bouchard sought shelter behind the Limitation of Liability Act of 1851, suing the families of the two crew members who perished in the flames. Arnold & Itkin proudly represented one of those families, and we were appalled, but not surprised, when Bouchard asked the Court to limit the value of all claims against them to $6 million—their valuation of the mangled vessel.

While Bouchard represented to the Court their vessel was worth only $6 million, we discovered that, following the disaster, Bouchard cashed in an insurance policy they had bought for their faulty vessel just four months before the explosion. The stated value of the ship according to the insurance claim was $18 million. Bouchard attempted to use the outdated Limitation of Liability Act of 1851 to make a $12 million profit off the deaths and injuries of their own employees.

The same thing happened years earlier with Transocean, one of the defendants in the Deepwater Horizon explosion. Transocean owned the Deepwater Horizon, which the company said would cost $560 million to replace. Its insurance payout provided them with a $270 million profit on a tragedy that ended 11 lives and ruined countless more.

Nationally Regarded Maritime Law Experience

Our offshore injury lawyers have a lifetime’s worth of stories like these: stories of people who were dragged into legal battle before they had a chance to heal or bury their loved ones—people who were forced to argue that their life or the memory of their loved one was worth more than a tangled pile of sunken scrap metal.

Kurt Arnold and Jason Itkin, founding partners of the Houston law firm Arnold & Itkin, gained national recognition for representing more survivors and families of victims of the Deepwater Horizon disaster than any other law firm. In the subsequent years, Arnold & Itkin has also fought against Limitation Actions on behalf of the widows of mariners lost in the 2015 sinking of the El Faro, and for survivors and victims of the 2017 Bouchard oil barge explosion off the coast of Port Aransas.

It’s Time to Get Rid of an Outdated Law

While the Limitation of Liability Act of 1851 served a purpose during its time, Congress never intended for the law, written to protect small ship owners from ruin, to be abused in order to deny injured crew members the support they need to recover, nor was it meant to withhold rightful compensation to families of lost mariners.

Today, the law is an instrument of injustice, an obstacle to keep deserving survivors and families of victims from being “made whole,” as the law puts it. Our firm has repeatedly and emphatically called for the repeal of the Limitation of Liability Act of 1851. We contributed to an effort in 2010 that led to the US House of Representative passing important reforms to the Limitation of Liability Act of 1851, but the Senate failed to vote on the matter.

So we continue to fight, and we will advocate for its repeal until workers have the ability to seek justice to the full extent of what has been taken from them.