William Skye v. Maersk Lines Limited – Part 2

Lipcon, Margulies & Winkleman, P.A

February 17, 2012

William Skye v. Maersk Lines Limited – Part 2

Response to Motion for Summary Judgment

At Lipcon, Margulies & Winkleman, P.A. we represent injured crewmembers from all types of ships, including commercial shipping vessels. In this case filed in federal court, a crew member aboard a commericial container ship alleges he suffered a physical injury to his heart and contracted a long term heart condition that was caused by working conditions on a Maersk vessel. Maersk attempted to obtain judgment in its favor by arguing that the Plaintiff’s injuries are not compensable under current maritime personal injury law. In this response, our attorneys argue that the Plaintiff’s claims are compensable under the current law and that the evidence supports a ruling allowing the Plaintiff to move forward to trial. Additionally, the Plaintiff argues that Maersk was negligent per senbsp;for violating federal laws that restrict the amount of hours a seafarer is allowed to work.

CASE NO.: 11-21589-CIV-CMA




COMES NOW, the Plaintiff, WILLIAM C. SKYE, and hereby files his Response in Opposition to Defendant’s Motion for Summary Judgment [D.E. 52] and for good cause relies on the following Memorandum of Law:


I. Introduction

This lawsuit arises out of permanent physical injuries sustained by a Jones Act Seafarer. William Skye is a former chief mate [1] who worked on the Defendant’s vessel from 2000 to 2008. The uncontroverted evidence shows that during that time period the Defendant repeatedly violated 46 U.S.C. § 8104 and 46 C.F.R. § 15.111. These laws require that professional mariners be afforded a minimum amount of rest while working at sea to ensure the safety of seafarers and ocean going vessels.[2] Maersk systematically violated these laws and worked Bill Skye until he was chronically fatigued and exhausted. As a result of this negligence per se and constant sleep deprivation, Bill Skye developed an occupational disease (labile hypertension) and suffered a physical injury (left ventricular hypertrophy).

Simply put, all of the evidence in this case shows that these are physical injuries with purely physical causes.

This point is critical, because Maersk argues Bill Skye’s claim is barred as a matter of law under the Supreme Courts case of Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994). This argument fails because Gottshall says only that emotional distress claims cannot be sustained unless the emotional distress was caused by a physical impact or the Plaintiff was in the “zone of danger” of a physical impact. Herein, there is no emotional distress claim, but rather a straightforward claim of physical injury; plain and simple.
Maersk’s Motion relies on other non-binding precedent to argue that the Gottshall zone of danger test should be applied to this case. To support this proposition the Defendant argues Bill Skye suffered only an emotional injury[3] with physical manifestations. And yet Maersk failed to attach a single shred of factual or medical evidence to prove to this Honorable Court that Bill Skye’s injury is an emotional injury or that the causes of Bill Skye’s injury were emotional rather than physical. In other words, Maersk has done nothing to meet its significant burden.

Maersk cannot rely on case law and simply assert that the Plaintiff’s case is similar. The law is clear that the party moving for summary judgment has the burden to show that there is no genuine issue as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). As such, Maersk has the burden to show it is undisputed that Bill Skye did not suffer a “physical” injury. Yet remarkably, Maersk has done nothing, other than cite to case law, to satisfy its significant burden. Accordingly, Maersk has failed to prove that Bill Skye’s injury is purely emotional or that it has purely emotional causes and thus its summary judgment should be denied.

Stated simply, this is a physical injury case, not a claim of Negligent Infliction of Emotional Distress. Thus, Gottshall does not apply.

II. Defendant’s Undisputed Facts with Plaintiff’s Disputes in Accordance With Local Rule 56.1

1. Plaintiff worked as a Chief Mate onboard the Sealand Pride from October, 2000 to May, 2008.

a. Plaintiff does not dispute this fact.

2. During his employment on the Sealand Pride, Plaintiff typically sailed on 2 to 4 voyages per year and worked an average of 163 days, with an average of 202 vacation days per year from 2001 to 2007. Plaintiff’s employment on board ended May 8, 2008.
a. Dispute: As demonstrated by Plaintiff’s Pension Credit Summary sheet, attached hereto as Exhibit 1 and produced in response to a third party subpoena issued by the Defendant to Plaintiff’s union, the average number of days worked per year by the Plaintiff during this time period was 174 with an average of 183 vacation days. From the period of 2003 to 2007 the Plaintiff had 365 total days of pension credit each year. Contrary to what the Defendant tries to portray, this is a full time working schedule for a seafarer in Plaintiff’s position as a permanent chief mate of an ocean going container ship. Chief mates are given vacation days while they are at sea, this is considered part of their pay. See Deposition of Skye, pg. 159, L: 1-15 [D.E. 67-1]. While they are on “vacation” they are essentially being paid for the work they already did at sea.

2. From 2000 to August, 2004, the Sealand Pride was operated by United States Ship Management, Inc. (USSM). Defendant assumed operational responsibilities in August, 2004 and remained the operator of the vessel through the date Plaintiff officially retired on June 11, 2008.
a. Dispute: The Plaintiff does not dispute that USSM was the management company for the vessel in the period alleged in Defendants Undisputed Fact, however the Plaintiff disputes that USSM was the sole operator and claims that USSM was acting underneath Maersk, who still made supervisory decisions. See Deposition of William Skye, pg. 97, L: 22-24. [D.E. 67-1]. Plaintiff also disputes the date of retirement stated in Defendant’s Undisputed Fact. Plaintiff officially retired on October 1, 2008. Id at pg. 264, L: 3-5 [D.E. 67-1].

3. Plaintiff filed this maritime personal injury action against Defendant on May, 5, 2011, asserting claims under the Jones Act and for Unseaworthiness.
a. Dispute: Plaintiff does not dispute the date of the filing of his complaint, but adds that Plaintiff also sought relief under a theory of negligence per se, which allegations have now been incorporated into the Plaintiff’s Jones Act Count pursuant to this Court’s Order of September 28, 2011 [D.E. 33].

4. Plaintiff is not suing the Defendant for a distinct, traumatic injury he claims he sustained while in the service of the ship. Rather, Plaintiff claims his job was stressful.
a. Dispute: This fact is undisputed in that the Plaintiff’s injury was not caused by one distinct traumatic event, but Plaintiff maintains it was caused by many distinct traumatic events over a course of 8 years.[4] Further, the occupational disease developed by the Plaintiff and the physical injury he sustained at the hands of the Defendant were caused by numerous traumatic events and repeated violations of work rest hour regulations imposed by law. [D.E. 1 pg. 2 ¶ 9].

5. The only physical injury claimed is the allegation that stress ultimately manifested as heart complications, namely labile hypertension and a thickening of the heart muscle and left ventricle. Plaintiff does not allege any threat of physical injury arising during his employment separate and distinct from his perception of a stressful situation.
a. Dispute: Plaintiff alleges that each time the Defendant forced the Plaintiff to work excessive hours, deprived him of rest, worked him to the point of fatigue, woke him up in the middle of the night, and violated the work rest hour provisions of C.F.R. 46 USC § 8104; and/or b) 46 C.F.R. 15.1111(a), he was threatened with a risk of physical injury and was ultimately injured. Established medical literature supports this allegation. See Expert Report of Dr. Wachspress and Learned Treatises attached hereto as Exhibit 2. See also Affidavit of Dr. Wachspress attached hereto as Exhibit 3. Further Plaintiff’s injuries consist of an occupational disease (labile hypertension), as well as physical changes to his heart, including left ventricular hypertrophy, torn mitral valve chordae, left ventricle diastolic dysfunction, mild aortic root dilation, and aortic sclerosis. See Medical Records of Dr. Wachspress. [D.E. 52-2 pg. 9].

6. Before taking the position of Chief Mate aboard the Sealand Pride in October, 2000, Plaintiff experienced problems with stress, fatigue, and heart palpitations which he related to the demands of work at sea.
a. Dispute: Plaintiff does not dispute this fact, however it should be put in the context of Plaintiff’s full statement which states that Plaintiff saw a doctor about these problems, “[a]nd his diagnosis and conclusion was there was nothing physically wrong with my heart at that time, that it was a benign arrhythmia[…]”. See Deposition of William Skye, pg. 174, L: 1-4. [D.E. 67-1] (emphasis added).[5]

7. On July 25, 2000, Plaintiff was evaluated for these symptoms by his primary care physician, Dr. Bear; Plaintiff listed his chief complaints as: “irregular heartbeat (after bouts of chronic fatigue on job), May, 2000; hear pounds – skips beats, feels like a ‘gurgle’ or ‘butterflys;’[sic] stomach gas & burping associated along with feeling tired.” Dr. Bear referred him to cardiologist, Dr. Wachspress.
a. Plaintiff does not dispute this fact.

8. Plaintiff provided Dr. Wachspress a family history that included his father’s heart attack, high blood pressure and a 6-way heart by-pass surgery in 1999.
a. Dispute: Plaintiff does not dispute that he provided a family history to his physician as described above. However, it is important to note that Defendant’s own expert, Dr. Feldman, observed in his report that the Plaintiff shows no evidence of having any coronary artery disease. See Report of Dr. Theodore Feldman, pg. 3, attached hereto as Exhibit 4. Any inference the Defendant is attempting to draw that the Plaintiff’s injury has a genetic cause is plainly disproved by the completely different nature of his father’s injury to his own as recognized by the Defendant’s own expert.

9. Plaintiff’s history to Dr. Wachspress also included his employment as a “chief mate on a container ship” and that he endured “a lot of pressure.” Plaintiff also informed Dr. Wachspress that he had experienced heart palpitations and fatigue while working on container ships as early as “six years ago.”
a. Dispute: Plaintiff does not dispute this fact, but adds the context that the heart palpitations experienced “six years ago”, resolved themselves as noted in the very same report of Dr. Wachspress dated July 25, 2000 and cited by the Defendant. [D.E. 52-2, pg. 5].

10. In 2000, Dr. Wachspress attributed Plaintiff’s cardiac complaints to his stressful work conditions and advised Plaintiff to reduce his stress level.
a. Dispute: Plaintiff does not dispute this fact, but adds the context that in 2000 Dr. Wachspress found nothing physically wrong with the Plaintiff’s heart and did not diagnose the Plaintiff with labile hypertension. [D.E. 52-2, pg. 7]

11. On September 5, 2000, Dr. Wachspress again related Plaintiff’s palpitations to stress. Dr. Wachspress advised Plaintiff to undertake the American Heart Association phase 1 diet to avoid fatty foods.
a. Plaintiff does not dispute this fact.

12. Plaintiff claims he continued to experience the symptoms of stress, fatigue, and palpitations during his employment as Chief Mate aboard the Sealand Pride from October, 2000 until he finished his last voyage in May, 2008. Plaintiff saw Dr. Wachspress for one follow-up visit in 2003 during this interval.
a. Dispute: Plaintiff does not dispute this fact, except to note that Plaintiff’s symptoms did not remain the same throughout the entire time period outlined by the Defendant. Rather the symptoms were largely controlled in the period between 2000-2004 but thereafter increased until his retirement in 2008. See Deposition of William Skye, pg. 216, L: 9-14. [D.E. 67-1]. The increase in symptoms in 2008 prompted the Plaintiff’s visit to Dr. Wachspress in May of 2008, which revealed physical damage to his heart and eventually labile hypertension. See id at p. 259-60.

13. According to Plaintiff, the symptoms were present, but improved, from 2000 to 2004, but “started getting progressively worse” beginning in 2004.
a. Plaintiff does not dispute this fact.

14. When Plaintiff eventually returned to Dr. Wachspress on May 13, 2008, the doctor noted:

Plaintiff comes in with complaints of a lot of palpitations, especially when in bed. He has no new medical problems, other than resection of a small melanoma in situ about two years ago.

15. Dr. Wachspress again noted that Plaintiff worked on commercial container ships and is “under a lot of stress.”
a. Dispute: Plaintiff does not dispute this fact in that Dr. Wachspress’ record of May 13, 2008 says what the Defendant purports it says. However, Plaintiff must put this in proper context. In the same report cited by the Defendant after the portion Defendant cites, Dr. Wachspress goes on to say, “My plan is to get an echo, EKG treadmill stress test and a holter.” So Dr. Wachspress felt the Plaintiff had no new problems, but was going to perform further medical tests. When Dr. Wachspress did perform further testing, particularly an echo, he noted on June 10, 2008, that there were new problems that did not exist in 2000 or 2005, namely moderate concentric left ventricular hypertrophy. [D.E. 52-2, pg. 9].

16. On June 10, 2008, Dr. Wachspress reported the results of an echocardiogram test, holter monitor, and electrocardiogram (EKG) treadmill test as: (quotation omitted).
a. Plaintiff does not dispute this fact.

17. Subsequently, Dr. Wachspress wrote two letters on behalf of Plaintiff associating his symptoms to work-related stress.
a. Plaintiff does not dispute this fact.

18. Plaintiff then saw Dr. Arnold Goldman for psychiatric evaluations on July 8 and 14, 2008. Dr. Goldman noted the findings of Dr. Wachspress and concluded that Plaintiff had an adjustment disorder which was derived from job-stress.
a. Dispute: Plaintiff does not dispute that these were some of Dr. Goldman’s findings, but notes that Dr. Goldman also found that the Plaintiff was suffering labile hypertension and that the changes in the Plaintiff’s heart and the labile hypertension could only be attributed to his working conditions.

19. After some intervening follow-up visits, Plaintiff returned to Dr. Wachspress on August 8, 2011 because he was again experiencing heart palpitations. Dr. Wachspress’ report stated that the palpitations “are exactly the same as in 2000”. Plaintiff denied any other heart symptoms.
a. Dispute: Plaintiff does not dispute this fact, but adds that the Plaintiff is not in the position nor does he have the expertise or the duty to diagnose his own condition. See Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192 (11th Cir. 1983).

20. Plaintiff testified under oath that he complained of heart palpitations and a heart gurgling sensation in 2000, which he attributed to his stressful job; these same conditions persisted until his retirement in 2008. He attributed these heart issues with the stress he experienced while performing his job duties as Chief Mate.
a. Dispute: Plaintiff disputes this fact. The same conditions did not exist and in fact the conditions worsened until the point where the Plaintiff was diagnosed with a physical malady. See Deposition of William Skye, pg. 216, L: 9-14 and pg. 259-260, L: 21-25-16. [D.E. 67-1]. Further, in 2008 plaintiff associated his physical injuries with the hazardous conditions of his job on Defendant’s vessel. Id at pg. 260, L: 6-16 [D.E. 67-1].

21. Plaintiff furnished Defendant with two expert reports that relate his current medical condition with the cumulative stress of working on a container ship over the course of his career. The first, by Dr. John H. Sokolowicz, opines: (quotation omitted).
a. Plaintiff does not dispute this fact.

22. The second expert report was authored by Plaintiff’s Vocational Rehabilitation Expert Robert L. Lessne, Ph.D. and describes Plaintiff as having developed a “stress induced” vocational disability which will prevent him from returning to the “stressful world of work”. Dr. Lessne explained that Plaintiff is a “person with chronic stress” and will “spend the rest of his life managing his stress levels.” According to Dr. Lessne, Plaintiff’s future wage earning capacity is limited because of his “stress non tolerance.”
a. Dispute: Plaintiff does not dispute this fact, but notes that these excerpts are from Dr. Lessne’s draft report, which Plaintiff later substituted with a finalized draft that was provided to the Defendant and which the Defendant had the opportunity to depose Dr. Lessne about.

23. As of Plaintiff’s most recent visit to Dr. Wachpress in September, 2011, his only heart symptoms are palpitations, but Dr. Wachspress noted a “regular heart rate and rhythm.” The only planned medical treatment was “reassurance, same meds.”
a. Dispute: Plaintiff does not dispute this fact, but adds that the report cited by the Defendant still notes the same physical injuries identified in 2008, i.e. left ventricular hypertrophy, aortic root dilation, mitral regurgitation, etc. [52-2, pg. 42].

III. Plaintiff’s Undisputed Facts in Accordance With Local Rule 56.1

1. The Defendant had some involvement with the Sealand Pride going as far back as the year 2000. See Deposition of Jerry Eker, pg. 25, L: 5-6. [D.E. 67-3]
2. At the very least, the Defendant was the charterer of the Sealand Pride from 2000-2004. During that period, the Sealand Pride was operated to the benefit of Maersk Line Limited. See Deposition of Jerry Eker, pg. 24-25, L: 24-25-2. [D.E. 67-3]
3. From 2004 until the date of Plaintiff’s retirement, the Defendant was the manager of the Sealand Pride. Id at pgs. 28-29, L: 22-25-6. [D.E. 67-3]
4. The Plaintiff suffered a physical injury in service of the vessel caused by his working conditions. See Expert Report of Dr. Wachspress, Exhibit 2. There has been no evidence presented by the Defendant that disagrees with either the original expert report of Dr. Sokolowicz or the new expert report of Dr. Wachspress, which both state that working conditions on the Plaintiff’s vessel caused Plaintiff’s injuries.
5. The Defendant manned the Sea-land Pride with the minimum amount of personnel required by law. See Deposition of Steven Krupa, pg. 70, L: 20-24. [D.E. 67-2].
6. The Standards of Training, Certification and Watchkeeping (STCW) work rest hour and watch standing regulations apply to Defendant through 46 USC § 8104; and/or 46 CFR 15.1111(a). See Deposition of Steven Krupa, pg. 104, L: 14-23. [D.E. 67-2]
7. It was ultimately the responsibility of the Defendant to ensure all personnel on its vessels were in compliance with the STCW. SeeDeposition of Steven Krupa at, pg. 101. [D.E. 67-2]
8. Maersk management did nothing to ensure that its vessels were in compliance with the STCW. See Deposition of Steven Krupa, pg. 102, L: 3-25. [D.E. 67-2]
9. The STCW duty logs maintained by the Plaintiff while working onboard the Sealand Pride show hundreds of violations of the work rest hour and watch standing regulations. See STCW Duty Logs for William C. Skye and Accompanying STCW Violation Spreadsheets attached hereto as Exhibit 5 and Exhibit 6[6].
10. Maersk management did nothing to ensure that its crewmembers were getting adequate rest. See Deposition of Steven Krupa, pg. 113, L: 18-25. [D.E. 67-2]
11. Plaintiff had no physical injury when he first visited his cardiologist in 2000. See Expert Report of Dr. Wachspress Exhibit 2.
12. The Plaintiff was informed by his cardiologist that the symptoms he was experiencing in 2000 were benign. See Expert Report of Dr. Wachspress. Exhibit 2.
13. Plaintiff’s injury developed over a number of years. See Expert Report of Dr. Wachspress. Exhibit 2.
14. The first time Plaintiff was informed that he had suffered a physical injury and developed labile hypertension was after he signed off the Sealand Pride in 2008 and had an echocardiogram performed by his cardiologist. The results of this echocardiogram were provided on June 10, 2008 and for the first time revealed the Plaintiff’s physical injury. [D.E. 52-2, pg. 9].
15. In all of the Performance Reviews provided by the Defendant in Discovery, the Plaintiff was consistently rated as “Outstanding” or “Above Average” regarding his overall competency as a chief mate. Performance Review attached hereto as Exhibit 7.

IV. William Skye suffered a physical injury due to hundreds of violations of federal laws and regulations committed by Maersk. The causes of the Skye’s injury were the physical effects imposed upon his body by these repeated violations. All of the medical evidence (and the only evidence before this Honorable Court) supports this conclusion. Consequently, Skye’s injury is not barred by Gottshall. In fact, Gottshall is irrelevant. No binding precedent prohibits this Honorable Court from fulfilling the remedial humanitarian purposes of the Jones Act and FELA and finding that Skye’s injury is compensable.

a. Defendant’s flawed application of Gottshall.

This Honorable Court is presented here with a Jones Act seafarer who worked on the Defendant’s vessel. As a result of a condition aboard that vessel, the Plaintiff developed an occupational disease and a physical injury. The Plaintiff did not file an emotional distress claim and thus Gottshall is not applicable in this case. It is just that simple.

However, if this Court wishes to analyze the issue of whether or not William Skye’s claim is actionable under this analysis, it should look no further than Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135 (2003). This case is factually similar, more recent and more instructive in the present matter.

In Ayers the Supreme Court held that Plaintiffs who had contracted asbestosis (an occupational disease) as a result of exposure to asbestos (a working condition) had an actionable injury. Further, as a result of that actionable injury, the Plaintiffs in Ayers were allowed to bring emotional distress claims. The Ayers decision was in line with earlier Supreme Court precedent that held occupational diseases are compensable under FELA. See Urie v. Thompson, 337 U.S. 163, 187, (1949).

Nonetheless, Maersk argues for the application of Gottshall and says that a physical impact or zone of danger test are absolute requirements for recovery. The Supreme Court itself held otherwise in its more recent decision in Ayers and put the Gottshall decision into proper context by holding that, “In sum, our decisions in Gottshall and Metro-North describe two categories: Stand-alone emotional distress claims not provoked by any physical injury, for which recovery is sharply circumscribed by the zone-of-danger test; and emotional distress claims brought on by a physical injury, for which pain and suffering recovery is permitted.” Norfolk & W. Ry. Co. v. Ayers, 538 U.S. 135, 147 (2003).

The Ayers Court found that asbestosis constituted a physical injury, thus elevating the claim above one that was for mere exposure to asbestos, thereby eliminating the need to show an impact/zone of danger. Id at 146-148. Herein, Bill Skye’s labile hypertension and left ventricular hypertrophy are the medical, factual, and legal equivalent of asbestosis. As such, even if the Plaintiff were bringing an emotional distress claim (which he did not) Gottshall would present no obstacle.

a. The Plaintiff’s Claims Should Not Even be Subject to a Gottshall or Ayers analysis as they are simply claims for physical injuries and an occupational disease, rather than emotional distress. Under that analysis, the Plaintiff’s claims are governed by the Supreme Court’s Uriedecision.

William Skye suffered a permanent physical injury at the hands of a company who committed negligence per se through hundreds of statutory violations and who consistently put its profit motive before the safety of its employees.

As much as the Defendant argues for the application of the Supreme Court’s holding in Gottshall to this matter, that decision is inapplicable herein. No decisions that are binding on this Honorable Court extend Gottshall beyond the plain language of its holding.[7] Gottshall says only that in an action under FELA a plaintiff cannot recover for an emotional injury where it was not accompanied by a physical impact or where the seaman was not placed within the “zone of danger” of an immediate impact. As later explained in Ayers even this holding is narrowly tailored to instances wherein the Plaintiff has no physical injuries.

Herein, all of the evidence before this Honorable Court demonstrates William Skye suffered a physical injury and occupational disease. This easily distinguishes him from the application of Gottshall or Ayers. This is not artful pleading but rather the plain truth of the medical evidence. Skye sustained a left ventricular hypertrophy and contracted labile hypertension as a direct result of the negligence per se of his employer while working on the Sealand Pride. This injury was caused by the Plaintiff’s work environment, just like asbestosis or silicosis is caused by exposure to a work environment containing asbestos.

Earlier Supreme Court precedent is dispositive of the instant issue. In 1949, the Supreme Court was presented with the question of whether an injury like silicosis that did not result from an acute accident, but rather long term exposure to hazardous conditions was a cognizable claim under FELA. See Urie v. Thompson, 337 U.S. 163 (1949). The answer the Court gave was a resounding yes:

The question remains whether silicosis is an ‘injury’ within the meaning of that term as used in the Federal Employers’ Liability Act. It is a novel one for this Court. But we think silicosis is within the statute’s coverage when it results from the employer’s negligence. Considerations arising from the breadth of the statutory language, the Act’s humanitarian purposes, its accepted standard of liberal construction in order to accomplish those objects, the absence of anything in the legislative history indicating a congressional intent to require a restricted interpretation or expressly to exclude such occupational disease, and the trend of existing authorities dealing with the question, combine to support this conclusion. Id at 180-81.

The Court went on to state that it understood the main focus of the legislature in drafting FELA was to provide compensation for the accidents likely to be incurred in the railroad industry. Id. However, the Court also noted that nothing in the legislation showed any intent to deprive workers of compensation for an injury that was not caused by a distinct accident, as long as that injury resulted from an employer’s negligence. Id.

The Urie decision is still good law today and no decision, either from the Supreme Court or the Eleventh Circuit Court of Appeals has held that a claim like the Plaintiff’s is outside the protective umbrella of FELA and the Jones Act. No cases cited by the Defendant precludes this Court from siding with the medical evidence and ensuring that the humanitarian purposes of these statutes are fulfilled.

Further to this point, it is critical that in ruling on Defendant’s motion for summary judgment the court is reminded of the humanitarian purposes of FELA and the Jones Act, and their liberal application. See Atchison, Topeka & Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 562 (1987). The embodiment of that humanitarian purpose and liberal application can be seen in the Jones Act’s featherweight burden on causation, a burden recently reaffirmed in the Supreme Court’s decision of CSX Transp., Inc. v. McBride, 131 S. Ct. 2630 (2011). This featherweight burden further reflects congress’ intent to curtail the abusive practices of the transportation industry, and the imbalance of power that exists between employer and employee. Herein, the Court can help further congress’ intent by shifting power in the shipping industry into the hands of seafarers by holding their employers liable for the dangerous, illegal conditions they create onboard their vessels.[8]

a. Maersk’s Flagrant, Negligent Per Se Conduct

From the first day of the Defendant’s involvement with the Sealand Pride it implemented a culture of ever increasing duties, poor management, cost cutting, and a relentless push to get every ounce of work out of its crewmembers. Maersk ran its vessels with the minimum amount of crew required by law and cared only about cost benefit analysis.[9] With a huge amount of complex work to be performed and an inadequate crew to do it, the chief mate was often left as the only person to do the job.See Deposition of Steven Krupa, pg. 84, L: 13-19 [D.E. 67-2]. This per se negligent operation and management led to lack of adequate rest, chronic fatigue, prolonged exhaustion, and egregious violations of statutory protections.

Evidence of the extreme hours worked by the Plaintiff is shown in the STCW Duty logs from the Sealand Pride.[10] The STCW implements work rest hour restrictions to ensure the safety of crewmembers at sea. It is undisputed that Maersk had a duty to comply with the STCW. See Deposition of Steven Krupa, pg. 104, L: 14-23 [D.E. 67-2]. Despite this duty Maersk did nothing to ensure it was in compliance with these laws. Id at pg. 102, L: 3-25 [D.E. 67-2]. Instead, Maersk turned a blind eye and willfully violated statutes meant to protect its employees. Id at pg. 103, L: 10-25 [D.E. 67-2].

The week beginning April 13, 2006, illustrates what this negligence led to. In that period, Bill Skye worked anywhere between 97 and 102 hours in the previous seven days. On one day in that seven day span he was only allowed three hours of rest. See Accompanying STCW Violation Spreadsheets Exhibit 6, organized by date. For eight years, Bill Skye was exposed to this cycle of abusive and illegal practices ultimately leading to his physical injury and disease.

This point is of critical importance because Bill Skye is not alleging his injuries were caused by general workplace stress. Instead, the laser-like allegations of Bill Skye’s claim are predicated on the repeated, flagrant violation of work and rest statutes designed to protect him.

a. The Permanent Medical Consequences of Maersk’s Negligent Actions.

The medical evidence in this case is clear and undisputed: William Skye’s heart is injured and he suffers from labile hypertension. Further, it is undisputed that both of these conditions resulted from his work onboard the Defendant’s vessel. The working conditions imposed upon the Plaintiff by the Defendant amounted to a repeated injury.

As a permanent Chief Mate, the Plaintiff worked seventy or eighty-four consecutive days at sea. See Deposition of William Skye, pg. 86, L: 10-13 [D.E. 67-1]. In those periods, Skye routinely worked for over 24 hours without any rest, rarely was afforded the opportunity to get six hours of unbroken rest, worked night shifts and constantly changed shifts and time zones. Exhibit 5 and Exhibit 6. These working conditions violated work rest hour laws designed to protect the Plaintiff from the dangers associated with this kind of physical stress. These physical stresses were compounded by the already difficult demands of the chief mate job.[11]

The combined effects of these harsh working conditions on the Plaintiff’s body are analogous to asbestos exposure. Had the Plaintiff only been exposed once, it is likely he never would have developed his injuries. However, year after year of repeated abuse took its toll on the Plaintiff’s body and ultimately resulted in permanent injury.

a. The Medical Evidence Supporting the Plaintiff’s Claims of Injury and its Causes is clear.

Importantly, this allegation of a physical injury caused by physical stress is not a bald assertion made by the Plaintiff. For the Court to determine whether or not Plaintiff’s claim is compensable under the Jones Act it must understand the nature and substance of the Plaintiff’s claim. See Smith v. Union Pac. R.R. Co., 236 F.3d 1168, 1171 (10th Cir. 2000). In order to understand the nature and substance of the Plaintiff’s claim the Court should defer to the medical evidence in this case. That medical evidence consists of Plaintiff’s expert, Dr. Wachspress, whose report states that the working conditions imposed upon the Plaintiff were a “physical stress” upon his body. See Exhibit 2. Dr. Wachspress’ report also clearly states, “long hours, irregular shifts, inadequate sleep and time off, and constant stress [have] had serious physical consequences on Mr. Skye’s health”. Id (emphasis added). Notably, no medical evidence in this case has diagnosed Mr. Skye’s injuries as having purely emotional causes.

This opinion was based on years of treating Mr. Skye and comports with the established medical literature on the subject. In a study reported in the Annals of Internal Medicine in 2011[12], long working hours were determined to be a better predictor of coronary heart disease than the Framingham Risk Score.[13] Similarly a study released in March of 2011 in the Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report[14] found that, “[p]ersons experiencing sleep insufficiency are more likely to have chronic diseases such as cardiovascular diseases[…].” This study is closely related to another study done by the CDC in 2004[15] which findings showed persons who worked an average of 61 hours/week and had less than two days off a month, were over two times as likely to suffer a myocardial infarction as compared to a regular worker.

The health issues associated with chronic fatigue, lack of rest, and inadequate sleep are not news in the maritime industry. It is commonly known that mariner fatigue is a severe problem onboard modern cargo vessels. See Andy Smith, Adequate Crewing and Seafarers Fatigue: The International Perspective, Center for Occupational Health and Psychology Cardiff University 2007.[16] The National Transportation and Safety Board has criticized the U.S. Coast Guard for not doing enough to address this monumental health and safety issue.