Metropolitan News-Enterprise


Wednesday, May 14, 2008


Page 1


Barge Owner Not Liable for Seaman’s West Nile Infection—C.A.


By STEVEN M. ELLIS, Staff Writer


The law of the sea does not require a barge owner to provide food, lodging and medical care to a crew member who contracted the West Nile Virus, this district’s Court of Appeal ruled yesterday.

Affirming the judgment of Los Angeles Superior Court Judge Roy L. Paul, Div. Seven held that Connolly-Pacific Co. is not liable to Daniel C. Price for “maintenance and cure” because Price, a “commuter seaman” who spent his nights ashore and could not say with certainty when he was infected, could not establish that his illness was caused by his service to the ship, or that he contracted the virus or manifested symptoms while in the ship’s service.

Price, an operating engineer, was dispatched by his union on Aug. 5, 2004 to serve as a crewmember on the “D.B. Long Beach,” a special purpose derrick barge owned and operated by Connolly-Pacific that was engaged in a pier reconstruction project in the Port of Los Angeles.

The company is a marine construction contractor based in Long Beach Harbor, whose work includes the construction, demolition and repair of piers, wharves, docks, and other waterfront facilities.

Price was attached to the project as a “commuter seaman” or “brown water seaman,” who—in contrast with a “blue water seaman” who is required to live aboard a vessel—is an employee who commutes to and from the vessel upon which he or she works.

A resident of La Mesa, in San Diego County, Price was required to work on the barge five days per week from 7:00 a.m. to 3:30 p.m.

Parked On-Site

Rather than make a daily 240-mile round trip from home, he requested, and received, permission to park his camper truck in a Connolly-Pacific parking lot near the job site and stay there overnight during the week. After his daily shift ended, Price was not obligated to remain on-call or perform any other work for Connolly-Pacific in consideration for staying on the property overnight.

Price was at home for the weekend on Aug. 21, 2004 when he began to feel ill. He was hospitalized three days later and diagnosed as having contracted the West Nile Virus from a mosquito bite.

Unable to return to work as a result of his illness, Price was subsequently terminated by Connolly-Pacific.

Price calculated that he had been infected during the time period in which he worked for Connolly-Pacific, as the West Nile Virus has a three to fourteen day incubation period, meaning that the mosquito which infected him had done so sometime between Aug. 7 and Aug. 18.

He then brought suit against Connolly-Pacific in the Los Angeles Superior Court, contending that the company owed him “maintenance and cure,” which refers to a vessel owner’s centuries-old duties under maritime law to provide ill or injured seamen with food and lodging up to the point of maximum medical recovery, as well as all necessary medical care.

State Court Claim

Although Article III of the U.S. Constitution vests exclusive jurisdiction over all admiralty and maritime matters in federal courts, state courts have concurrent jurisdiction under the so-called “savings to suitors clause” in 28 U.S.C. § 1333, which provides that an injured party may still pursue any state remedies it has in state court.

Such claims are governed by federal maritime law in what is sometimes called the reverse-Erie doctrine, referring to the U.S. Supreme Court’s holding in Erie R.R. Co. v. Tompkins (1938) 304 U.S. 64 that a federal court sitting in diversity jurisdiction over a state law claim must apply state substantive law in resolving a dispute.

Price alleged that he suffered multiple mosquito bites during the time period in which he calculated he was infected, and claimed to have been bitten once by a mosquito while working.

However, he admitted that neither he nor anyone else could say for certain where or when he was infected, and Paul—concluding after a bench trial that Price was not entitled to maintenance and cure in the absence of evidence that his illness was caused by his service to ship, or that he contracted the virus or manifested symptoms while in service of the ship—ruled in favor of Connolly-Pacific.

Price conceded on appeal that he could not meet that standard, but argued that the Shipowner’s Liability Convention of 1936 provided that he needed only to prove that the illness was incurred, or aggravated, or manifested itself during his period of employment.

However the Court of Appeal, in an opinion by Justice Fred Woods, upheld Paul’s decision and rejected Price’s argument as a misinterpretation of the convention.

Pointing to the differences between a traditional blue water seaman’s obligation to a vessel, and that owed by a brown water seaman such as Price, Woods noted that “[w]hile spending the night in his camper-truck in his employer’s parking lot, Price was under no obligation to perform any services for the shipowner and was not in any way [answerable] to the ‘call of duty.’”

Woods also swept aside Price’s argument that he had contracted the illness while participating in an on-shore activity that benefited his employer.

“Price reasons, like the provision of a company car to transport commuting seamen, allowing him to camp in the parking lot transformed the risk of a mosquito bite while sleeping into a hazard of service,” Woods wrote.

“We have great difficulty equating traveling to work on company time or in a company car with camping out, outside of work hours and without charge, in a company owned parking lot…. Connolly’s generosity in allowing Price to use his RV-camper in an otherwise empty parking lot, without more, is an insufficient basis on which to award him maintenance and cure.

John R. Hillsman of McGuinn, Hillsman & Palefsky and Charles D. Naylor of the Law Offices of Charles D. Naylor represented the plaintiff on appeal. Richard C. Wootton, Mitchell S. Griffin and Christopher S. Kieliger of Cox, Wootton, Griffin, Hansen & Poulos represented the defendant.

Presiding Justice Dennis M. Perluss and Justice Laurie D. Zelon joined Woods in his opinion.

The case is Price v. Connolly-Pacific Co., 08 S.O.S. 2793.


Copyright 2008, Metropolitan News Company