In our previous article “COVID-19 and the Shipowner’s Legal Obligations,” published in The Maritime Executive, and through our participation in a Zoom webinar on potential vessel operator liabilities hosted in conjunction with Greater New Orleans Barge Fleeting Association, we discussed the standard of reasonable care owed under the Jones Act and an employer’s obligation to provide a reasonably safe place to work. An owner has a duty to provide a seaworthy vessel under the General Maritime Law.
Recently, a COVID-19-related wrongful death lawsuit was filed against a vessel owner/Jones Act employer in the Eastern District of Louisiana titled, Kathy Norwood v. Rodi Marine LLC, et al., Civil Action No. 2:20-cv-01404. This case has been assigned to Judge Eldon Fallon and will test the legal obligations owed by vessel owners.
The Federal Rules of Civil Procedure require only “notice pleading” to support a cause of action. Michael Norwood was a deckhand assigned to an offshore vessel service working out of Mobile, Alabama, and his widow alleged the following: “Sometime” in March 2020, the vessel’s captain traveled to the New Orleans area on a work assignment. Shortly after the captain’s return to his vessel, he became ill and stayed in his cabin for several days before seeking medical treatment. The captain was subsequently diagnosed with COVID-19. Mr. Norwood returned home at that time and was reportedly isolated until he fell ill with COVID-19 and passed away. This is the factual framework of the lawsuit’s allegations.
As a seaman, Mr. Norwood had rights and remedies under the Jones Act and General Maritime Law. Mr. Norwood’s widow asserted a wrongful death and survival action under the Jones Act and also alleged unseaworthiness under the General Maritime Law. It was asserted that Rodi Marine, as vessel owner, owed a duty to provide a seaworthy vessel, including a “fit” crew. The captain was not fit because of his illness, and the vessel was not fit because of COVID-19 contamination upon the captain’s return. Rodi Marine, as the Jones Act employer, was allegedly negligent for failing to provide a safe place to work; for failing to provide proper protocols to minimize the risk and to avoid contamination; for sending the captain to New Orleans, a known infectious area; and also for not immediately evacuating the ill captain from the vessel to prevent exposure to the crew.
It is well established that the occurrence of an accident or illness does not by itself establish that a Jones Act employer is at fault or that a vessel is unseaworthy. Although the claimant’s burden of proof may be featherweight under the Jones Act, a claimant must still demonstrate that the breach of a duty owed caused, in whole or in part, an illness or injury under Gautreaux v. Schurlock Marine, Inc. Negligence is predicated upon a standard of ordinary care under the circumstances. When and where was Mr. Norwood exposed to COVID-19, what was the ordinary prudence required of the ship owner under the facts known or reasonably known at particular and material times, and what was the ordinary prudence of Mr. Norwood to be considered by a court in assessing comparative fault? With respect to this case, there are legal precedents in place. The maritime industry addressed AIDS when it first surfaced in the 1980s, and has litigated toxic exposures, viruses, and infections aboard ships. The ultimate facts will determine liability under the applicable law as well as any duty owed and breached that proximately caused the illness and ultimate death. Any intervening causes of the death will also be considered.
The duty-risk analysis will remain a stalwart in assessing fault and comparative fault. The courts are also well aware of the monition that a Jones Act employer is not an “insurer” of its employees’ well-being. Courts must determine what was the ordinary care expected under the circumstances for Jones Act purposes that was breached in whole or in part. For unseaworthiness, the courts must find that the unseaworthy condition played a substantial role in causing the injury or illness . It is unlikely that the Fifth Circuit Court of Appeals will create new law arising from this litigation. COVID-19 is a new virus and a pandemic, but the law and established duty of care owed by a Jones Act employer to its employees and the obligations of a vessel owner under the General Maritime Law are not novel. How will the district court and appellate court apply the established law to the proven facts?