Jones Act: Tugboat pilot injuried in car accident: Failure to provide safe passage home: Herniated disk: Retinal tear: Settlement

Law Reporter, Dec 1998

Jones Act: Tugboat pilot injured in car accident: Failure to provide safe passage home: Herniated disk: Retinal tear: Settlement.

Strain v. Midland Enters., Inc., Miss., Harrison County Cir. Ct., No. A2401-96-00220, Aug. 27, 1998.

Strain, 42, was working as a tugboat pilot moving barges on an inland waterway. He started his shift at midnight, worked until 6 a.m., had six hours off, and then worked from noon until 4 p.m. His supervisor then gave him a rental car to drive the six hours home.

While on his way home, a passing car splashed water onto his windshield. Strain's car left the highway, struck the end of a bridge, and went down an embankment before coming to rest. He suffered a concussion and a herniated disk at C5-6, requiring a diskectomy. He also suffered a retinal tear, requiring laser treatment. His medical expenses were about $26,800.

Strain, who had been earning about $37,000 annually at the time of the accident, was unable to work for about three years. He then returned to work at a casino, earning $8 per hour.

Strain sued his employer under the Jones Act, 46 U.S.C. (sec) 688, and general maritime law, alleging failure to provide safe passage home. Plaintiff claimed that he had been fatigued from his long shift in bad weather conditions, and that defendant should have provided a driver to take plaintiff home, as was its usual practice.

Plaintiff also alleged violation of 46 U.S.C. (sec) 8104(h), which prohibits licensed pilots of vessels longer than 26 feet from working more than 12 hours in any 24-hour period. Plaintiff claimed he was still on duty at the time of the accident because he had been instructed by his supervisor to return the rental car to the rental agency near his home. Thus, plaintiff claimed, he had been on duty almost 16 hours out of the past 24 hours at the time of the accident.

The parties settled for $175,000, plus payment of plaintiff's medical expenses and maintenance.

Plaintiff's experts were Frank Buck, marine safety, Marrero, La.; Nancy B. Mitchell, ergonomics, Huntsville, Ala.; Leon Tingle, rehabilitation, Pascagoula, Miss.; G. Richard Thompson, economics, Clemson, S.C.; and Howard T. Katz, physiatrics, New Orleans, La.

Defendant's experts were David Dewey, marine safety, Paducah, Ky.; Edgar M. Dapremont Jr., ophthalmology, Gulfport, Miss.; and Judith L. Lide, vocational rehabilitation, Kenneth J. Boudreaux, economics, and William Black, neuropsychology, all of New Orleans, La. Plaintiff's Counsel:

*William L. Denton, Biloxi, Miss.