The Louisiana First Circuit Court of Appeal recently issued an important ruling allowing an offshore worker’s maritime injury case to proceed forward.
The case, filed by an African American tankerman against his former employer, Cenac Towing Co., LLC, stemmed from an incident aboard a tugboat. The worker alleged that upon beginning a 28-day hitch, he noticed a rope that resembled a noose hanging in the wheelhouse of the tug. The worker alleged that crew members aboard the tug hung the noose in an effort to threaten and intimidate him because of his race. The worker alleged that he asked the captain of the tug to remove the noose because it made him feel threatened, but the captain refused. It was reported that at no time during the verbal confrontation did the captain make 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.
Suit was filed by the offshore worker against Cenac claiming damages for negligent and intentional infliction of emotional distress. Sometime thereafter, Cenac filed motions requesting that a Louisiana district court dismiss the worker’s maritime case on the grounds that he could not, as a matter of law, satisfy the maritime law “zone of danger” test. In support of its contention, Cenac noted the following: 1) the worker did not have physical contact with the captain during the verbal confrontation; 2) the worker did not suffer any physical injuries, and 3) the worker never felt physically threatened while aboard the vessel.
The district court agreed with Cenac and dismissed the offshore worker’s case. The worker appealed the ruling to the Louisiana First Circuit Court of Appeal. The appellate court, in a recently issued opinion not yet released for publication in the permanent law reports, sided with the worker and ruled that his case against Cenac could proceed forward to trial under maritime law.
What Is The Maritime Law “Zone Of Danger” Theory?
The Louisiana appellate court’s decision to allow the offshore worker’s case to proceed forward, despite his not suffering any physical injuries, hinged upon the court’s application of the maritime law “zone of danger” theory.
Under the maritime law “zone of danger” theory, an offshore worker within the “zone of danger” of physical harm may recover damages for emotional injuries caused by fear of physical injury, even though he/she may not actually suffer a physical injury.
In order to recover damages under this theory of maritime law, the offshore worker must prove that: 1) he was objectively within a fact-particular “zone of danger,” 2) he subjectively believed that he was in immediate danger of physical harm, and 3) his emotional injury was a reasonably foreseeable consequence of a maritime company’s negligence.
Following the Deepwater Horizon explosion in 2010, “zone of danger” claims were brought on behalf of many offshore workers that were on and/or around the rig at the time of the explosion but were not physically injured. These maritime workers sustained severe emotional injuries stemming from their fear of being killed or severely injured as the rig burned and sank.
Similarly, in overruling the district court’s dismissal of the maritime worker’s case, the Louisiana appellate court concluded that a jury might reasonably decide that the worker feared for his physical safety based on the particular facts of the case.
The issue of whether an African American offshore worker, confined to a tugboat on a 28-day hitch, felt threatened for his life upon seeing the noose in the tugboat’s wheelhouse, required the district court to make a credibility determination. The appellate court concluded that the lower court should have left such credibility determinations up to a Louisiana jury after a full trial on the merits. As a result, the appellate court overruled the district court, and the offshore worker is now allowed to continue pursuing his case.
For decades, the Louisiana law firm of Herman, Herman & Katz has represented injured offshore workers and their families. The firm’s maritime law experience led the court over-seeing 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 subsequent oil spill is widely considered to be the worst offshore maritime disaster 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 gross failures that led to this tragic maritime accident.
If you or someone you know has been injured in an offshore accident, our experienced maritime injury 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. L.L.C., 2019-1185 (La. App. 1st Cir. 3/25/21) 2021 WL 1135478.
Jed Cain is a partner with Herman, Herman & Katz, LLC. He has dedicated his career to representing injured folks and their families.