The Louisiana Court of Appeals for the First Circuit recently issued a landmark decision allowing an offshore worker’s maritime injury case to proceed.
The case, brought by an African-American oilman against his former employer, Cenac Towing Co., LLC, stemmed from an incident aboard a tugboat. The worker alleged that at the start of a 28-day hitch, he noticed a rope that looked like a noose hanging down in the wheelhouse of the tug. The worker alleged that crew members aboard the tug hung the noose in an attempt to threaten and intimidate him because of his race. The worker alleged that he asked the master of the tug to remove the noose because he felt threatened, but the master refused. It was reported that at no time during the verbal confrontation did the captain have any physical contact with the worker. Instead, the captain reported the incident to Cenac’s personnel coordinator and the worker was transferred from the tug to another vessel the following day.
A lawsuit has been brought by the offshore worker against Cenac claiming damages for negligently and intentionally inflicting emotional distress. Some time later, Cenac filed motions asking that a Louisiana district court dismiss the worker’s maritime case on the grounds that he could not, as a matter of law, meet the maritime law “danger zone” test. . In support of his claim, Cenac notes the following: 1) the worker had no physical contact with the master during the verbal confrontation; 2) the worker suffered no physical injuries; and 3) the worker never felt physically threatened on board the vessel.
The district court agreed with Cenac and dismissed the offshore worker’s case. The worker appealed the decision to the Louisiana Court of Appeals for the First Circuit. The Court of Appeal, in a recently rendered opinion which has not yet been published for publication in the permanent law reports, sided with the worker and decided that his case against Cenac could be tried under the maritime law.
What is the “danger zone” theory of maritime law?
The Louisiana Court of Appeals’ decision to allow the offshore worker’s case to proceed, despite not sustaining any physical injuries, was based on the court’s application of the “danger zone” theory. of maritime law.
Under the “danger zone” theory of maritime law, an offshore worker located in the “danger zone” of physical harm can obtain damages for emotional injuries caused by fear of physical injury, even if he doesn’t actually suffer a physical injury.
In order to obtain damages under this theory of maritime law, the offshore worker must prove that: 1) he was objectively in a particular “danger zone”, 2) he subjectively believed he was in immediate danger of physical harm, and 3) her emotional injury was a reasonably foreseeable consequence of the negligence of a shipping company.
Following the Deepwater Horizon explosion in 2010, ‘danger zone’ claims were filed on behalf of numerous offshore workers who were on and/or around the rig at the time of the explosion, but who were not physically injured. These maritime workers suffered severe emotional injuries due to their fear of being killed or seriously injured when the rig burned and sank.
Similarly, in overturning the district court’s dismissal of the maritime worker’s case, the Louisiana Court of Appeals found that a jury could reasonably decide that the worker feared for his physical safety based on the particular facts. of the case.
Whether an African-American offshore worker, confined to a tug on a 28-day hitch, felt threatened to his life upon seeing the noose in the wheelhouse of the tug, forced the district court to determine its credibility. The appeals court found that the lower court should have left those credibility determinations to a Louisiana jury after a full trial on the merits. As a result, the Court of Appeal overturned the District Court’s decision and the offshore worker is now allowed to continue with his case.
For decades, Louisiana law firm Herman, Herman & Katz has represented injured offshore workers and their families. The firm’s experience in maritime law led the court overseeing the DEEPWATER HORIZON litigation to select Stephen Herman to serve as co-lead counsel for the victims of the spill. The DEEPWATER HORIZON explosion and resulting oil spill are widely considered the worst maritime disaster at sea in American history. Eleven offshore workers were killed and many more were injured. Herman, Herman & Katz led the charge to hold BP accountable for its egregious failures that led to this tragic maritime accident.
If you or someone you know has been injured in an accident at sea, our experienced maritime damages lawyers can help you navigate the complexities of maritime law. For more information or a free case consultation, contact us online or call us toll free at 844-943-7626.
Thompson v Cenac Towing Co. LLC, 2019-1185 (La. App. 1st Cir. 3/25/21) 2021 WL 1135478.