A new lawsuit will focus on supply vessel policies in the wake of the recent pandemic. The recently filed case of Kathy Norwood v. Rodi Marine, LLC, represents one of the first COVID-19 cases in the Gulf Coast region alleging a Jones Act negligence claim for the contraction and eventual death of a vessel seaman. It highlights interesting issues relative to causation and negligence, not only surrounding the contraction of the virus but the appropriate response once an infection is either confirmed or suspected.
The plaintiff alleges that her husband, Michael Norwood, was a crew member aboard a supply vessel owned and operated by Rodi Marine. In March and April 2020, the vessel reportedly was located at the Austal Marine facility in Mobile, Ala. During that time, the vessel's captain reportedly was dispatched to New Orleans to perform services on behalf of Rodi Marine. Following his return, he reportedly fell ill. Although somewhat unclear, it appears that the vessel captain sequestered himself in his quarters for two to three days until Rodi Marine was told of his illness. The company then removed the captain from the vessel for testing, which revealed that he had COVID-19.
Norwood reportedly returned home when the captain was removed from the vessel and was isolated from contact with others except for his wife when he too fell ill. He reportedly succumbed to the virus despite medical treatment.
The lawsuit alleges that Rodi Marine negligently caused Norwood’s death for:
Plaintiff counsel’s crafting of the petition for damages highlights some of the issues that confront successful pursuit and defense of a claim for the contraction of a virus such as COVID-19. Contracting exotic diseases is, of course, nothing new for a seaman. Given the close working quarters, environmental exposure, and various ports within which seaman work and live, they are exposed to a myriad of potential ailments and diseases. Malaria, melioidosis, MRSA and histoplasmosis are just a few of the contracted illnesses that have formed the basis of claims we have defended in the past. While issues of negligence and comparative fault form the principal defenses in a typical tort suit, questions concerning causation take a much more prominent role in cases alleging the negligent exposure to viruses or diseases.
The ubiquity, infectiousness and generally untraceable nature of a disease or illness creates the first line of defense on causation for an infectious virus/disease claim. The plaintiff must prove how, where and when they contracted the disease. The more infectious, insidious and ubiquitous the disease, the more difficult it likely will be to prove causation. For example, melioidosis, histoplasmosis and malaria are endemic to certain locales around the world, and a seaman’s historical presence in those locales makes proof of the exact time and location of contraction exceedingly difficult. COVID-19, by comparison, is a pandemic potentially making proof of causation that much more difficult.
A corollary issue involves knowledge of the methods of contraction. Melioidosis requires exposure to contaminated soil. Histoplasmosis requires exposure to contaminated bird droppings. Malaria, of course, requires exposure to infected mosquitoes. Far less is known, however, about COVID-19. While it is an airborne disease, questions remain about how easily it is spread, its latency/dormancy period, the time it remains infectious on surfaces and packages, and the like. Moreover, it appears that the virus can be carried and spread by individuals showing no outward or inward signs of illness. All of those unanswered questions offer additional bases to attack a plaintiff’s ability to prove causation - the “when, where and how” of the virus’ contraction.
Plaintiff’s counsel in the Norwood case anticipates those issues in his complaint. As noted, he contends that the vessel’s captain traveled to New Orleans, subsequently fell ill, and then remained aboard the vessel with Norwood before testing positive for COVID-19. He only needs to prove causation by a preponderance of the evidence, and he will contend that the most likely source of Norwood’s infection was the captain. Regardless, given the virus’ ubiquity and infectiousness, causation should be a battle, especially if evidence is developed indicating other interactions that could have been sources of infection (shore leave, interaction with land-based workers, acceptance of packages and the like).
The second bulwark against a finding of liability will, of course, be negligence. Here too, infectious disease cases can prove difficult for plaintiff’s counsel. While certain segments of the population and economy shut down, marine operations were excluded from such limitations as part of the nation’s critical infrastructure. As such, there can be no contention that a seaman’s presence aboard a vessel violated some work prohibition. Much more importantly, however, proving that a vessel operator could or should have done something to prevent the initial contraction of a disease can be a tough hurdle to overcome. Once again, the ubiquity of the virus and the proven inability to protect vast swaths of people from infection despite best efforts suggests that proving vessel owner negligence for the initial infection may be no easy task.
Subsequent transmissions, however, present a different analysis. The issues raised by the Norwood case are whether appropriate steps were taken once the captain fell ill. Negligence in that matter will, in part, revolve around whether the captain should have been permitted to travel to New Orleans, why he did so, whether he should have removed himself from the vessel the moment he began to feel ill and if his sequestration in his cabin was not only the proper reaction but also properly performed.
Crewmember training and knowledge, as well as the vessel owner’s policies and procedures, will also be in play. Clarity concerning those policies and procedures, and proof that the information is accurate, current, has been properly disseminated to the crew and followed by the crew could prove critical to defending against a finding of liability. Once again, however, the virus’ novelty and the relative dearth of confirmed knowledge about its general characteristics could offer defenses to a finding of negligence. A vessel owner only needs to take reasonable steps to protect its crewmembers. That reasonableness test applies both to the training it provided as well as the steps it took once an infection was suspected or confirmed.
It seems likely that cases like Norwood will follow. There are any number of COVID-19 cases and class actions currently being pursued across the nation. While the analysis above is particular to a Jones Act case, the highlighted issues involving causation and negligence are equally applicable to nearly any liability case. Indeed, they are likely of even more importance to cases that do not involve the long term close-quarters environment inherent in the offshore industry.
The provision of maintenance and cure concerning COVID-19 infection was covered in our March 19 post.
Please contact Kent Morrison, Bob McCleskey, Colin Cambre or Phelps’ Admiralty team if you have any questions or need compliance advice and guidance. For more information related to COVID-19, please also see Phelps’ COVID-19: Client Resource Portal.