Going to sea is not for the light-hearted; it comes with risks that other workplaces don’t have. In fact, fishers alone are more likely to lose their lives at work than those in other occupations, including dangerous jobs such as mining and construction[1]. It comes as no surprise that seamen regularly find themselves in lawsuits when something goes wrong on a vessel.
Seamen are generally entitled to maintenance and cure benefits if they are injured at work, regardless of how or when the accident happened, as long as it occurred while the seaman was working. Despite these protections, some maritime employers cut their injured worker short by not providing them with the ample care they are entitled to and require to, in order for them to recover from their injuries.
Pairing this with the striking fact that in 2017, marine accidents killed 1,163 people and caused $197 million in insured losses[2] and in 2019, there were 3,174 maritime casualties and incidents reported[3], getting what you are entitled to after an accident at sea becomes even more vital.
Being well versed in laws that govern a maritime personal injury case is important for anyone involved, whether it be the boat owner, victim or insurer. When maritime issues are involved, it presents different legal issues and requires a different approach than in a typical personal injury lawsuit. As with any area of law, it is crucial to utilize someone well versed in this field.
Below we speak to Marcus Spagnoletti, who answers some commonly asked questions regarding personal injury and maritime law.
What common maritime accidents occur?
Common accidents involve workers that are injured in servicing the mission of the vessel, regardless of what the mission is - whether they are commercial fishermen or crew members on a vessel providing transport to and from oil and gas platforms or rigs. Whether the vessels are located in the Gulf of Mexico, the Pacific or the Atlantic Oceans, or across the world, injuries regularly occur. Accidents can occur simply due to poor weather conditions that are often foreseeable. Or, a vessel may not be fit for the operation that is being undertaken, or the captain may make a navigational error. Being ill-equipped increases the opportunity for seamen to be potentially injured while on a vessel.
The range of the injuries can be anything from minor orthopaedic injuries, such as a broken leg or broken hand or broken finger, to catastrophic injuries, where men or women fall from heights of 20m and suffer traumatic brain injuries, become crippled, become paralysed or in the worst cases, die.
When do you know that you have a strong legal case?
As mentioned earlier, if it is in the context of a maritime accident, any seaman that is injured at sea is entitled to medical care for their injuries. At minimum, they will either have rights under a contract, or rights under the law that will give them access to medical care which the employer has the obligation to pay for.
However, in order to determine whether you have a strong maritime or offshore injury case, it is a similar metric to which you would analyse any other injury case. Numerous questions must be answered: ‘Is there liability?’, ‘What did someone do wrong?’, ‘What could they have done better under reasonable or similar circumstances?’ ‘What did their wrongdoing cause?’, and ‘What are the damages?’. Of course, if the wrongful acts did not cause an injury, you do not have a case. If there is an injury but there is no liability, in the context of a seaman or someone furthering the mission of a vessel, the injured person may still have the right to recover medical expenses and a small amount of living expenses.
Do maritime cases often end up in court? In general, what cases end up in court, or does it vary?
More often than not these cases end up in court. Unfortunately, most of the cases that I have to litigate in court are because the employer doesn’t live up to legal obligations owed to their employees. At that point, the only way to protect the rights that my clients have, under the law, is to proceed to court.
From the moment that a case is filed, absent a pandemic, they will generally last between 12-30 months. This is just an average; they can be longer or shorter.
Are there any instances when it is not worth going to court?
That is a good question and it is an aspect that I probably, more than other firms in the industry, certainly value. When I have clients that speak to me about their case, I talk to them about the risks of going to court. It is not cheap, and even though there can be a cost deterrent and there can also be a negative detriment to the individual's mental well-being. What I mean by that is if it is a difficult legal case and traumatic or particularly emotional damage has occurred, I will discuss with the client whether it is in the interests of their mental health to proceed with litigation, knowing everything that litigation will cause and bring to that individual while the case is ongoing. I try to be straightforward with my clients and try to advise them of what they can expect based on my experience in pursuing litigation. I am willing, able and ready to pursue litigation and do so under almost any circumstance when I believe there is merit to the claim, but I also have to pay close attention to the toll it may take on my clients. It is vital to do so.
On average how long do such cases last in your jurisdiction?
From the moment that a case is filed, absent a pandemic, they will generally last between 12-30 months. This is just an average; they can be longer or shorter.
What is the average result for maritime cases and what are some of the factors that influence the value of a case?
It will depend on many different factors, and whether the matter is settled or taken to a jury. Depending on the jurisdiction and the law applied, generally speaking, the payout to a client who is bringing a civil claim is contingent on: the past and future medical expenses; the past and future pain and suffering; the past and future economic loss as a result of the injury; and, the extent to whether there are any aggravating factors that allow the client to make a claim for punitive damages - whether or not we would be asking for such damages or if there is a risk that the defendant may be subjected to a punitive award, which may factor in the underlying pecuniary and non pecuniary damages.
In order to maximise a client's recovery, you have to both develop liability and ensure that the client is receiving the best possible medical care that they can receive with whatever geographical restrictions that may apply.
How do you determine what is a good settlement offer for your clients?
I balance the risk of losing at trial with the amount of money the client will be taking home as a result of the settlement and discuss that with the client. If the defendants do not offer any money, then there is no risk in going to trial; but the more money that the defendants offer to pay, the more risk is created from the plaintiff's perspective.
How does a good lawyer maximise a good settlement in this area?
In order to maximise a client's recovery, you have to both develop liability and ensure that the client is receiving the best possible medical care that they can receive with whatever geographical restrictions that may apply. This allows me to prepare the best possible case if I have to present the case to a jury, while at the same time assisting in my client’s recovery.
How has the pandemic impacted your work and your clients and their cases?
Many clients that were undergoing medical treatment were forced to partake in telemedicine – resulting in them not being able to see the doctors in person for a number of months, which has clearly affected their treatment. However, to overcome this, we have worked with the doctors to do the best they can under the circumstances. Moreover, the unpredictability of when cases may go to trial has made it difficult to communicate to the clients with any level of certainty when their case has the potential to resolve.
In terms of the business, there have been pros and cons. The pandemic has allowed me to develop the underlying cases to the highest level possible, because the courts have been closed and I have been able to turn my attention to developing the underlying merits of the cases I am currently working on. It has created a level of unpredictability as to when cases will go to trial and when they go to trial, what that will look like because the jury panel will be composed differently. There are nuances that will be necessary for us to familiarise ourselves with, but it is not anything the justice system and lawyers cannot overcome.
What do you think the long-term impact of the courts being closed will be?
I think the courts in my county have done an excellent job of returning as close to normal as possible. Jury trials are currently taking place, and the judges in Harris County, Texas are truly trying to allow injured plaintiffs to pursue justice.
Ultimately, we deal with insurers, who can often be short-sighted or have a myopic view of the risks that they are managing. I think we are going to see issues here because insurance companies get their head stuck in the sand and like to pretend or assume that these cases will be forgotten about amidst everything else that is going on in 2020. This is not the first, and will not be the last, pandemic and the cases (just like COVID) will follow through to 2021. There are some insurers that have still managed to take the underlying cases seriously and are still looking at them in good faith to try to resolve outstanding risks to their company. All in all, it is going to be a mixed bag; some are going to have accumulated substantial risk as a result of pushing resolution of cases off into future years. Other companies are going to operate business as normal within the industry.
In personal injury and maritime cases, do you think justice is served as often as it should be?
I often tell my clients that if you are looking for justice, don't go to the courthouse, because there are too many factors that play into what is determined as 'just'. However, given the line of work that I am in, and the types of serious claims that I handle, our justice system allows us, at minimum, to use money damages to recover for wrongdoings that have been done. If that is the definition of how we define justice in a civil case, more often than not, my clients get the justice they deserve. My clients get what they are entitled to: they improve their health, and they are able to live their lives more comfortably than they would have been able to if we did not have the civil system in place that we have today.
About Marcus
How did your own experience navigate you when embarking on your journey into law?
My family has a history of working in the legal sector and working in the maritime industry. My great-grandfather was a merchant mariner from Italy, and that is how he made his way to the United States. My father began practising law in the 70s and started his own maritime law firm. I then studied law myself and started my own firm in the last two years.
What challenges did you have to overcome in order to be where you are today?
The biggest challenge I have overcome was the traumatic brain injury I suffered in 2018. I almost died, and then spent a significant amount of time recovering while at the same time trying to manage my newly founded law firm. I got a lot of help from the lovely people that work for me, who continued to work on behalf of our injured clients. This experience ultimately has allowed me to understand the plight of the clients I represent in an unparalleled way. The pain and uncertainty that they have I first meet them is something I understand more than most lawyers in my profession given the unfortunate accident that I had. It has been a blessing in disguise, and it has enabled me to be a better advocate for my clients. It has allowed me to value life in a different, more profound way.
Your role in personal injury can be quite stressful, how do you destress?
Finding a balance in this profession is extremely difficult and unless you establish boundaries and put up a guard to your personal life this business will swallow you whole, chew you up and spit you out. You have to be very protective of your personal time and the things that matter most to you and your life as beyond the pledge you make to your clients and their families. Your own mental health is important. Taking time to decompress, no matter what is on your schedule, is an important goal to strive for.
What motivates you most about your role?
Keeping my word to my clients and those that work for me. I hold myself to an incredibly high standard, higher than anybody else, and am motivated by living up to that standard and responsibility so I can keep the promises I have made to my clients.
How do you measure your success?
My success is measured by assisting and helping the people that I am privileged enough to represent, enabling them to live the remainder of their life in the most amount of comfort they can and helping them recover in a healthy and safe way as much as their bodies will allow. That is what I strive for every single day.
Marcus Spagnoletti
Principal
Marcus refuses to define himself by money and he will not define his law firm by money either. Having knocked on death's door following a serious personal injury, Marcus knows that enjoyment of life is priceless. If you ask his seriously injured clients if they would trade the millions of dollars they have received, after being represented by the Spagnoletti Law Firm, to live the remainder of their lives in the condition that they were in on the day prior to their injuries, they all would say "YES"! It is for this reason that the number one priority at Spagnoletti Law Firm is getting you the best medical treatment we can possibly find.
Marcus is well experienced in not only shepherding his clients through the loss of enjoyment of life due to personal injury, but also through commercial and transactional matters. Marcus’s goal is to ensure that when problems arise, his clients are protected and have someone to fight for them until they win. He has worked on matters in five of the seven continents and sees the world through an ecumenical lens. He invites the opportunity to learn about new places and people because he enjoys working to resolve his clients’ problems.
Spagnoletti Law Firm places a strong emphasis on litigation. Our maritime law team has successfully handled disputes involving Jones Act Seamen, offshore injuries and deaths on lift boats, jack-ups, semi-submersible and offshore platforms.
Our litigation skills have brought our decades of success in maritime law to other types of disputes. We handle all types of accident and injury claims. We also handle domestic and international litigation regarding insurance, the oil and gas industry and a range of other claims. In addition, we provide skilled defense of white collar crime charges.
[1] https://seafarersrights.org/seafarers-subjects/fishers-and-plunders/accident-statistics/
[2] https://www.iii.org/fact-statistic/facts-statistics-marine-accidents
[3] https://safety4sea.com/23073-maritime-casualties-and-incidents-reported-in-2019/
