July 2011
Notes From Your Updater - The Petition for a Writ of Certiorari filed with the U.S. Supreme Court in the case of Vickers v. Weeks Marine, Inc. et al., Docket No. 10-1312 [see May 2010 Longshore Update and March 2011 Longshore Update] was denied on June 6, 2011. The question the pro se jailhouse lawyer plaintiff sought to present to the Court was: “If a ‘Key Man’ possesses a unique talent that is essential to economically sustain a business, is the loss of that talent, due to the denial of medical care for a personal injury, an injury to business and property, under the Racketeering Influenced and Corrupt Organizations [RICO] Act?
The US Court of Appeals for the District of Columbia Circuit ruled that the 2008 rulemaking by the Occupational Safety and Health Administration (OSHA) regarding vertical tandem lifts (VTLs) of cargo at marine terminals is generally valid, but that the portions relating to the inspection requirement for ship-to-shore VTLs and the total ban on platform container VTLs are invalid. National Maritime Safety Association v. OSHA, No. 09-1050 (DC Cir., June 17, 2011).
The Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is amending its maximum daily civil penalty assessments for violations of regulations implementing the Outer Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990 (OPA 90) to reflect increases in the consumer price index (CPI). The maximum daily civil penalty assessment for violation of OCSLA regulations will be increased to $40,000. The maximum daily civil penalty assessment for violation of the OPA 90 financial responsibility regulations will be increased to $30,000. The changes come into effect on August 1. See 76 Fed. Reg. 38294
MY ILLNESS IS DUE TO MY WORK BECAUSE I SAY IT IS
JOSEPH V. DIRECTOR, OWCP [NORTHROP GRUMMAN]
Circuit Court Opinion
BRB Decision
ALJ Decision
Warren Joseph was working as an electrician for Northrop Grumman Ship Systems, Inc., when he was allegedly exposed to smoke and fumes from nearby welding. Joseph left work early that day, and two days later he was transported by ambulance to a hospital where he was diagnosed with septic shock and bacterial community-acquired pneumonia. Northrop paid Joseph temporary disability benefits, however, Joseph filed a claim for LHWCA compensation seeking additional benefits, contending that his illness was related to his exposure to smoke and fumes on the job. Following a formal hearing, the ALJ held that Joseph’s injuries were not work related and denied his claim for worker’s compensation. Although the ALJ held that Joseph made a prima facie case due to the close timing between his symptoms and his exposure to the welding fumes, he also found that Northrop had presented substantial evidence to the contrary because all the physicians who examined Joseph agreed that his illness was not caused by his exposure to smoke and fumes at Northrop. The BRB subsequently affirmed. Proceeding pro se, as he had done before the BRB, Joseph appealed raising numerous issues on appeal; the primary issue being whether the BRB was correct in holding that the ALJ’s decision was based on substantial evidence and is consistent with the law. The appellate court also concluded that the ALJ’s finding was supported by the record. There was no medical evidence linking Joseph’s illness to his workplace, and the timing of his illness was purely coincidental. The court affirmed the BRB’s holding that Joseph’s illness was not related to exposure to welding fumes at Northrop. The appellate court declined to entertain Joseph’s other arguments, raised for the first time on appeal, finding them frivolous and entirely unsupported arguments. (5th Cir, June 9, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 11739
STEVEDORE IS HELD TO BE A CONTRACTOR, NOT A SUBCONTRACTOR
BAYOU STEEL CORPORATION V. NATIONAL UNION FIRE INSURANCE COMPANY
Circuit Court Opinion
Ryan Campbell, an employee of Kindra Marine Terminal, was allegedly injured during Kindra's unloading of Bayou Steel Corporation’s steel bundles from a vessel belonging to Memco Barge Lines. Memco had contracted with Bayou to haul the cargo for Bayou by barge from Louisiana to Illinois. The issue to be determined in the case was whether Campbell's employer, Kindra, was Bayou's contractor or its subcontractor for purposes of the provision in Bayou’s insurance policy that excluded coverage of Bayou's liability for bodily injury incurred by employees of Bayou's subcontractors but did not exclude coverage of such injuries incurred by employees of Bayou's contractors. Following an extensive analysis of the meaning of "subcontractor" in Louisiana law, the district court impliedly ruled that Kindra was Bayou's subcontractor when it granted Bayou’s motion for summary judgment excluding coverage under the insurance policy in question. On appeal, the US Court of Appeals for the Fifth Circuit ruled that a company hired by a cargo owner to unload the cargo from a third party barge is a contractor. The appellate court concluded that Bayou had contracted separately with Memco for carriage of the cargo and with Kindra for the removal of the cargo from the barge. As Bayou was the principal party (paying party) and not the prime contractor (performance party) under both its barge transportation agreement with Memco and its offloading agreement with Kindra, there was no way for Kindra to have been a subcontractor of Bayou within the intendment of the insurance policy exclusion of coverage for injuries sustained by employees of Bayou's subcontractors. Kindra contracted directly with Bayou — not with some contractor of Bayou — to offload Bayou's cargo, so Kindra was Bayou's contractor, not its subcontractor. The appellate court reversed the district court's summary judgment and remanded the case for further proceedings consistent with its holding. (5th Cir, May 31, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 10920
MARINE SURVEYOR ONLY OWED A DUTY OF ORDINARY CARE
WAAS V. IKAN MEXICO MV, ET AL.
Circuit Court Opinion
While working for a third-party cargo interest as a marine surveyor, Suneth Waas fell from a Jacob's ladder rigged by the stevedore, Pacorini Holding, LLC, between a river barge and a vessel owned by KK Shipping Marine S.A. Waas filed suit against Pacorini and KK Shipping, claiming negligence under the LHWCA and general maritime law. Both Pacorini and KK Shipping moved for summary judgment, and the district court granted their motions, dismissing Waas's claims. The court held that Pacorini owed Waas a duty of ordinary care and that Pacorini did not breach that duty. The district court also held that the vessel's owner, KK Shipping, did not have a duty to intervene to prevent use of the Jacob's ladder without fall protection. Waas filed a Rule 59(e) post-judgment motion to alter judgment, which the district court denied. Waas timely appealed, arguing that the district court improperly focused on the duty of care and failed to address Waas's argument that Pacorini breached its warranty of workmanlike performance. The appellate court rejected this argument, noting that the warranty of workmanlike performance was not applicable to Waas’s case because it is a principle of contribution and indemnity between defendants. Citing no authority for the proposition, Waas next contended that, by allowing Waas to use its ladder, Pacorini's duty of care became heightened. The appellate court also rejected this theory, noting that the record showed that the use of a Jacob's ladder was a standard practice in the industry. There was no evidence that the ladder itself was defective. Pacorini acted with reasonable care and OSHA regulations cited by Waas did not operate to increase the duty Pacorini owed Waas, because they regulate the duty owed by an employer to its employees, and Pacorini was not Waas's employer. Finally, Waas argued that a jury should have been allowed to determine whether Pacorini's judgment in using the Jacob's ladder without fall protection was improvident, triggering the duty to intervene. The appellate court again noted that, because the Jacob's ladder was standard practice in the industry and the ladder itself was not defective, the duty to intervene did not arise as a matter of law. The summary judgment in favor of Pacorini and KK Shipping was affirmed. (5th Cir, June 3, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 11372
STEVEDORE NOT LIABLE UNDER THE “GOING AND COMING” RULE
BARCLAY, ET AL. V. PORTS AMERICA BALTIMORE, INC.
Appellate Court Opinion
Christopher Richardson was a longshoreman, who worked loading and unloading ships arriving in Baltimore. Ports America Baltimore, Inc. manages and operates marine cargo facilities in Baltimore. The terms of employment for Richardson, including working additional consecutive shifts, were governed by a collective bargaining agreement. After working 22 hours, Richardson was involved in a head-on collision on his way home when he fell asleep at the wheel. Richardson’s vehicle crossed the center line of a road and collided with the vehicle of Michael S. Barclay, a police officer. Barclay suffered injuries and Richardson was killed. Barclay filed suit against multiple parties, including Ports America and summary judgment was granted to Ports America upon finding that it was not vicariously liable pursuant to the "going and coming" rule of respondeat superior. Further, the trial court found that Ports America owed no direct duty to Barclay as a member of the general public. Barclay and Richardson’s personal representative, sought review of the trial court’s judgment in favor of Ports America. On appeal, the appellate court found that the "special mission or errand" exception to respondeat superior did not apply, and there were no "special circumstances" that overrode the "coming and going" rule. Whether Ports America had a duty or special relationship with either Richardson or the public was not controlling, as the alleged facts did not show the requisite proximity of cause and effect. Further, Ports America was not liable to Richardson on cross-claims for indemnity or contribution. The appellate court affirmed the judgments of the trial court. (Md. App., April 29, 2011) 198 Md. App. 569; 18 A.3d 932; 2011 Md. App. LEXIS 56
Updater Note: Although this is not a Longshore case per se, I wanted to make my readers aware of it because of the increasing number of “fatigue” claims we are seeing in the maritime industry.
§905B CLAIM AGAINST VESSEL OWNER FAILS
AGUILAR, ET AL V. BOLLINGER SHIPYARDS, INC., ET AL
Luis Alonso Aguilar sued Bollinger Shipyards, Inc., under general maritime law, and Blessey Marine Service, Inc., under §905(b) of the LHWCA, for injuries he allegedly sustained, when he was working for Karl Senner, Inc. as a service technician on board a vessel owned and operated by Blessey. The work was being done at Bollinger’s shipyard. Aguilar was working alongside two Senner employees, and they were all in the process of reinstalling certain repaired gears in the starboard side of the engine room when Aguilar was allegedly struck in the lower back by a falling I-beam that had been positioned above the engine room as a lifting point for the chain hoist and chains used to move the equipment into place. The court heard testimony from a fellow Senner employee of Aguilar’s, who took full responsibility for choosing the method of work and positioning the I-beam. Neither Blessey nor Bollinger gave him instructions to do anything with regard to the beam. The court concluded that the testimony of other lay witnesses added to the inevitable finding that Senner alone was responsible for the safety of the lift. The court observed that the gist of the plaintiffs' claims against both Blessey and Bollinger was that the vessel owner and shipyard should have supervised the Senner operations to ensure that Senner employees did not act in a manner in which they could harm themselves. However, the jurisprudence does not extend the duty of the vessel owner or the shipyard this far, and the court held that the recognition of such a duty runs contrary to the underpinnings of Scindia and would virtually require the provision of a supervisor for every independent contractor in the yard. Instead, the court found that both defendants acted reasonably at all times and breached no duty owed to Aguilar. Accordingly, judgment was entered against the plaintiffs and in favor of the defendants, dismissing the plaintiffs' claims with prejudice. (USDC EDLA, June 16, 2011) 2011 U.S. Dist. LEXIS 63602
SUMMARY JUDGMENT GRANTED BASED UPON LHWCA IMMUNITY
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION
Walter McDonald filed suit in state court, against numerous defendants, alleging occupational exposure to asbestos during his employment in the Port of New Orleans and the development of asbestos-related lung cancer. McDonald’s state court suit was removed to federal court, on the basis that defendant Industrial Development Corporation of South Africa, Ltd. was a political subdivision, agency, or instrumentality of a foreign state pursuant to 28 U.S.C. §1603. McDonald later died, and his wife and children were substituted as plaintiffs. SSA Gulf Terminals, Inc. filed a motion for summary judgment, arguing that the LHWCA provides the exclusive remedy for the decedent's alleged injuries, and that separate remedies may not be provided by state law. In rebuttal, plaintiffs contended that the case was not governed by the LHWCA because they seek relief only under Louisiana state tort law. Plaintiffs also assert that an issue of genuine fact exists as to where McDonald was exposed to asbestos. SSA asserted that after discovery it had become clear the only exposure McDonald had to asbestos occurred in vessels on the navigable waters of the United States. Plaintiffs argued that a genuine issue of material fact existed as to where McDonald was exposed to asbestos because, according to McDonald's testimony, asbestos dust would settle on his person, clothing, and hair, and he would, therefore, be exposed to that remaining asbestos on land after leaving the vessel. The court concluded that SSA had satisfied its burden of showing that no genuine issue of material fact existed, by demonstrating that McDonald’s own deposition clearly showed his exposure occurred only while on ships located upon the navigable waters of the United States. There was no other evidence on record to contradict McDonald's deposition testimony. The court found that plaintiffs' argument did not create a "genuine" issue because the evidence was not such that a reasonable jury could return a verdict for them. The court held that a reasonable jury could not return a verdict for plaintiffs based on the speculation that after McDonald was exposed to asbestos on the ship, he carried asbestos dust with him off the ship and supposedly further exposed himself to asbestos on the land. Under the circumstances, the court found that McDonald’s exposure occurred solely upon the navigable waters. SSA’s motion for summary judgment based on LHWCA immunity was granted. (USDC EDPA, April 4, 2011) 2011 U.S. Dist. LEXIS 58289
VESSEL UNDER CONSTRUCTION IS STILL NOT A “VESSEL” UNDER THE LHWCA
MILES V. VT HALTER MARINE, INC.
Andre Magee, Jr., who was employed as a rigger by Corrosion Control Specialists, fell while working on a Maritrans Operating Company, LP barge under construction and died as a result of the injuries he sustained. At the time of the incident, Magee, the barge was under construction in a shipyard owned and operated by VT Halter Marine, Inc., where the barge was moored in navigable waters. Following Magee’s death, his survivors, alleged illegitimate minor children and Magee's father, filed suit asserting admiralty and maritime jurisdiction exists as the case was brought pursuant to §905(b) of the LHWCA. The defendants moved to dismiss the complaint, arguing that the barge on which Magee was working was not a vessel for purposes of admiralty jurisdiction; therefore, jurisdiction under admiralty law, general maritime law, or 905(b) could not be established. Additionally, the defendants maintained that plaintiffs' action did not lie in maritime tort because Magee was engaged in "ship construction" work at the time the incident, which is not a traditional maritime activity sufficient to give rise to a maritime tort. Plaintiffs argued that the requirement that an object must be placed in navigation for its intended purpose to be considered a vessel is applicable under the Jones Act only, contending that the key inquiry was whether the injury occurred on navigable waters, which undisputedly happened to Magee. here. The court agreed with the position of the defendants that, because the barge on which Magee was working at the time of the incident was not yet completed, the structure was not a vessel for purposes of admiralty jurisdiction. The court found that the Stewart decision did not effectively overrule longstanding precedent holding that a watercraft under construction is not a "vessel in navigation" for purposes of the Jones Act. Additionally, prior Fifth Circuit jurisprudence had similarly found that an unfinished watercraft is not a vessel for purposes of admiralty jurisdiction and therefore cannot be a vessel for purposes of a §905(b) claim under the LHWCA. The court also rejected plaintiffs’ contention that the ship was "built" at the time of the incident, holding the evidence indicated otherwise. Since the structure was not a vessel for purposes of admiralty jurisdiction, the court held that plaintiffs' claims that arise under admiralty law, general maritime law, and §905(b) of the LHWCA must be dismissed. Defendants also sought dismissal of Magee’s father’s claims of mental anguish allegedly suffered as a result of witnessing the loss of his son, urging that the general maritime law does not allow for bystander damages or independent mental anguish claims in wrongful death actions. The court found that, although Magee’s father may have been "near" the scene of the accident, it was undisputed that he did not contemporaneously witness his son's fall. The court held that, because Magee’s father did not actually witness the accident causing his son's injuries, he was not a bystander pursuant to the criteria provided by Mississippi jurisprudence and therefore defendants' motion was granted. (USDC EDLA, May 31, 2011) 2011 U.S. Dist. LEXIS 57815
COURT HOLDS THAT STEWART DID NOT CHANGE FIELDS WORK PLATFORM RULE
RICHARDSON V. KERR MCGEE OIL & GAS CORPORATION, ET AL.
Riley Richardson allegedly fell while working on a buoyant petroleum extraction platform located in the Gulf of Mexico, which was owned and operated by Kerr McGee Oil & Gas Corporation. The platform is moored to the sea floor through a series of cables and pilings that extend 230 feet into the sea floor. The platform has only been moved twice in the past 10 years, by tightening and slacking its connecting cables and is not expected to be moved from its present location for 17 years. At the time, Richardson was working at the time for Charles Holston, an independent contractor hired by Kerr McGee to perform maintenance services. After Richardson filed a Jones Act suit, Kerr McGee and Charles Holston both moved for summary judgment, arguing that the platform is not a "vessel" for purposes of the Jones Act and therefore Richardson’s Jones Act claims must be dismissed. Furthermore, Kerr McGee argued that it was not liable for Richardson’s injuries under Texas law, rather, the Outer Continental Shelf Lands Act (OCSLA) applied to Richardson’s case. The court noted that it was convinced that the platform at issue was not a “vessel” but a work platform, notwithstanding Stewart. The platform, like the spar in Fields, had been, in effect, permanently moored to the ocean floor, and therefore under Stewart it is not capable of maritime transport in any meaningful way. Consequently, since the platform was permanently moored to the ocean floor, its incidental movement on its cables was insufficient to make it a vessel and therefore Richardson’s Jones Act claims must be dismissed. Additionally, the court concluded that Richardson met the OCSLA test and was therefore covered under that extension of the LHWCA. Since Richardson had not asserted a LHWCA claim against his employer, Charles Holston, the court held that Charles Holston was entitled to summary judgment. The court also found that Charles Holston was an independent contractor and that Kerr McGee did not actually exercise control over Charles Holston and was therefore not liable for Richardson’s claims under Texas law. Accordingly, the court granted summary judgment in favor of both defendants. (USDC EDLA, June 28, 2011) 2011 U.S. Dist. LEXIS 68641
WELL-PLEADED COMPLAINT RULE DOES NOT DEFEAT FEDERAL JURISDICTION
STEVENS V. ENERGY XXI GOM, LLC, ET AL
Preston Stevens filed suit in state court against Energy XXI GOM, LLC and Energy XXI (Bermuda) Limited, alleging that he was employed by RBG USA Inc. and working on an offshore facility operated by the defendants. Stevens further that during the performance of his job duties he was required to travel by crew boat from the defendants' main facility to a satellite location, and transfer from the boat in a personnel basket that was lifted and moved horizontally by a crane set on the satellite facility. At the time of his transfer off the crew boat, Stevens claimed the sea and weather were rough, which caused the boat to pitch and roll in relation to the facility with the crane. As a result, while Stevens was on the ring of the personnel basket waiting to be lifted off the boat, the basket dragged across the deck into the railing causing Stevens to be injured. Defendants removed the case to federal court alleging diversity of citizenship and a federal question under the Outer Continental Shelf Lands Act (OCSLA). Stevens moved to remand his suit to state court, asserting there was no diversity and that his suit was brought under general maritime law, not under OCSLA. Finally, Stevens argued that the petition did not allege that the accident occurred on or adjacent to any fixed platform located on the outer continental shelf and the defendants' notice of removal and affidavit fail to show that the location of the accident was on the outer continental shelf. The court found that the evidence that both the primary and satellite facilities, to which Stevens was assigned, were located on the OCS. The only reasonable inference that the court could draw from these uncontested facts was that the case brought by Stevens was related to an operation conducted on the OCS which involves the exploration for and development of minerals, and that there would have been no alleged accident causing the plaintiff's injury "but for" the defendants' conducting an operation on the OCS. Based on the undisputed facts, the court held that the defendants had satisfied their burden of establishing original subject matter jurisdiction under federal law and that neither the well-pleaded complaint rule nor Stevens’ allegations of a claim under maritime law, bar or limit the defendants' right to remove the case to federal court. Stevens motion to remand was denied. (USDC MDLA, May 18, 2011) 2011 U.S. Dist. LEXIS 66894
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest #231 & Digest #232
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #231 & #232. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005 (time for a new one, Yelena!). However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
TRAVEL REIMBURSEMENT RATE INCREASED
IRS INCREASES MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/11
On June 23, 2011, the Internal Revenue Service released the optional standard mileage rates to use for the second half of 2011 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning July1, 2011, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:
• 55.5 cents per mile for business miles driven;
• 23.5 cents per mile driven for medical or moving purposes; and
• 14 cents per mile driven in service to a charitable organization.
The charitable standard mileage rate is set by law. The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile.
Updater Note: You can check out the revised IRS mileage rates here. The Office of Government-wide Policy, GSA also sets mileage reimbursement rate for use of a privately owned automobile (POA) on official travel. GSA published their 2011 rates on December 21, 2010 and you may review the bulletin here. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS). Which rate should you be using to reimburse travel under the Longshore Act? That is a question you may want to consult with your attorney on.
And on the Admiralty front . . .
A NEW MAXIM: “CAELUM TERMINUS EST – THE SKY’S THE LIMIT.”
CSX TRANSPORTATION, INC. V. MCBRIDE
Supreme Court Opinion
Robert McBride worked as a locomotive engineer for CSX Transportation, Inc. McBride allegedly injured his hand using an independent brake to switch rail cars. The district court rejected CSX’s requested instruction that would have required McBride to show that CSX’s negligence was a proximate cause of the alleged injury. Instead, the district court employed the Seventh Circuit's pattern instruction for FELA cases, which read: "Defendant 'caused or contributed to' Plaintiff's injury if Defendant's negligence played a part--no matter how small--in bringing about the injury. The mere fact that an injury occurred does not necessarily mean that the injury was caused by negligence." The jury returned a verdict for McBride. On appeal, CSX renewed its objection to the failure to instruct on proximate cause, now defining the phrase to require a "direct relation between the injury asserted and the injurious conduct alleged." The Seventh Circuit, however, approved the District Court's instruction and affirmed its judgment for McBride. CSX sought review of the appellate court decision and this FELA case was heard on writ of certiorari to the United States Court of Appeals for the Seventh Circuit. The Supreme Court held that, pursuant to 45 U.S.C. §51, FELA rendered railroads liable for employees' injuries or deaths resulting in whole or in part from carrier negligence. FELA did not incorporate proximate cause standards developed in non-statutory common-law tort actions. Under FELA, injury was proximately caused by the railroad's negligence if that negligence played any part in causing the injury. Although the court observed that reasonable forseeability of harm is an essential ingredient of FELA negligence, it held that if negligence is proved and is shown to have played any part, even the slightest, in producing the injury, then the carrier is answerable in damages even if the extent of the injury or the manner in which it occurred was not probable or foreseeable. In the 5 to 4 decision, affirming the Seventh Circuit’s decision, the Supreme Court held that, in accord with FELA's text and purpose, Rogers, and the uniform view of the federal appellate courts, that FELA does not incorporate stock "proximate cause" standards developed in non-statutory common-law tort actions. The majority decision followed years of jurisprudence that holds that if negligence of the employer played a part – no matter how small – in bringing about the injury, this is sufficient for liability in FELA [and Jones Act] claims. The majority opinion of Justice Ginsburg, was joined by Justices Breyer, Sotomayor and Kagan, with Justice Thomas joining in part. Chief Justice Roberts filed a strongly worded dissenting opinion, joined by Justices Scalia, Kennedy and Alito, that was highly critical of what the Chief Justice described as a “but for” test of liability that results in what Chief Justice Roberts termed is a new maxim: “Caelum terminus est – the sky’s the limit.” (U.S. Sup. Ct., June 23, 2011) 2011 U.S. LEXIS 4795
Updater Note: While this is not a maritime case, it has great relevance to the US maritime industry, because the Jones Act incorporates the FELA for purposes of recovery for death or personal injury of seamen. Justice Thomas, once again, played the villain, siding with the majority, rather than his conservative colleagues.
REASONABLE JURY COULD FIND PRODUCT TO BE UNREASONABLY DANGEROUS
BROCHTRUP V. MERCURY MARINE, ET AL.
Circuit Court Opinion
Jacob Brochtrup was allegedly injured after his leg made contact with the spinning propeller of a boat engine. He sued the manufacturers of the engine, Mercury Marine and the boat builder, Sea Ray, alleging that the engine's propeller was defectively designed. Mercury Marine and SeaRay moved for judgment as a matter of law. The district court denied their motions and Brochtrup ultimately obtained a favorable jury verdict. Mercury appealed the decision denying its motion for judgment as a matter of law and the jury instruction on a Texas design defect claim, arguing that Brochtrup did not present sufficient evidence that the engine was defectively designed in a way that was unreasonably dangerous, which was the first element of a design defect claim. The appellate court disagreed finding that, based upon the record evidence, a reasonable jury could find the engine to be unreasonably dangerous. The appellate court found Mercury’s arguments to the contrary erroneous in two respects. First, it repeatedly asks the appellate court to weigh the evidence presented, even though the proper inquiry was whether sufficient evidence existed to support the passenger's claim when the evidence was viewed in the light most favorable to him. Second, it sought to require Brochtrup to have presented what the manufacturer believed to be the best evidence of all five risk-utility factors. Mercury argued unsuccessfully that Brochtrup put forth insufficient evidence on a safer alternative design, which was the second element of a design defect claim. The instruction given was not incapable of properly guiding the jury. Even assuming that the instruction was erroneous, the appellate court found that the challenged instruction could not have affected the outcome of the case. The judgment of the district court was affirmed in all respects. (5th Cir, May 27, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 10900
SLEEPING, EATING & MEETING ON A VESSEL DOESN’T MAKE YOU A SEAMAN
TEAVER V. SEATRAX OF LOUISIANA, INC.
Circuit Court Opinion
Seatrax of Louisiana, Inc. Is in the business of providing cranes for offshore drilling platforms. Seatrax hired Robert Teaver as a crane operator/installer, and Teaver and several other Seatrax employees were charged with disassembling a portable crane on an offshore platform owned by Mariner Energy, Inc., which was located approximately 90 miles off the coast of Louisiana. About thirty minutes into the project, less than twenty-four hours into his employment with Seatrax, Teaver fell approximately nineteen feet from his position on a gang box. The injuries he sustained in the fall left him permanently paralyzed. Teaver filed a petition in state court, alleging a Jones Act claim against Seatrax and a claim of negligence under Louisiana state law against Mariner. Mariner removed the suit to federal court, claiming federal jurisdiction under the Outer Continental Shelf Lands Act, and arguing that the Jones Act claim did not prevent removal because Teaver did not qualify as a seaman under the Jones Act. Teaver filed a motion to remand, which the district court denied after concluding that Teaver could not possibly establish his status as a seaman. The district court then granted Seatrax’s motion for summary judgment on the same ground, dismissing Seatrax from the suit. The district court granted Teaver’s request for a Rule 54(b) judgment and stayed the litigation so Teaver could appeal the district court’s rulings regarding Seatrax. Teaver perfected his appeal, arguing that the district court erred in refusing to remand his action to state court and in granting summary judgment to Seatrax. The appellate court noted that the pertinent issue on appeal was whether Teaver could possibly establish that he was a Jones Act seaman. The district court found that Teaver would be unable to establish either element of the Chandris test for seaman status under the Jones Act. The appellate court agreed, holding that the outcome was governed by its decision in Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5th Cir. 1999). Despite this court’s pronouncement in Hufnagel that workers aboard vessels that transport them to their work stations on offshore drilling platforms are not seaman, even when the transportation vessel also serves as a “floating hotel” during the work assignment, Teaver argued that he was a seaman because he was working in service of the crew boat that transported him to the platform. throughout his employment. The appellate court rejected this argument, holding that the undisputed facts revealed that crew boat performed the same function as any supply vessel—it provided transportation and lodging services for the Seatrax employees and their equipment, and the Seatrax employees were merely passengers on the vessel. Therefore, Teaver, like Hufnagel, could not demonstrate that he was a Jones Act seaman. Although he stored equipment, attended meetings, slept, and ate aboard the vessel, his contemplated work assignment was almost entirely on the platform. The judgment of the district court was affirmed. (5th Cir, June 23, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 13020
ONLY IN THE 9TH CIRCUS
TOBAR, ET AL. V. UNITED STATES OF AMERICA
Circuit Court Opinion
Plaintiffs in this case are Ecuadorian crew members of a fishing boat. The U.S. Coast Guard had stopped and boarded their boat on suspicion of smuggling drugs. Tests performed on the vessel yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard towed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against Plaintiffs. The plaintiffs sued the United States for unlawful imprisonment and other claims arising from the search and seizure. The United States filed a motion to dismiss under FRCP 12(b)(1) for lack of subject matter jurisdiction on the ground that the United States has not waived sovereign immunity. The district court agreed and dismissed this action. The crew members appealed. The appellate court held that the Military Claims Act, 10 U.S.C. §§2731-2739, the Alien Tort Statute, 28 U.S.C. §1350, and certain treaties did not waive sovereign immunity. The crew members could not rely on the waivers of sovereign immunity under the Suits in Admiralty Act, 46 U.S.C. §§30901-30918, or the Federal Tort Claims Act; their claims fell within the scope of the Public Vessels Act (PVA), 46 U.S.C. §§31101-31113, and therefore had to satisfy the PVA's reciprocity requirement. The court concluded the PVA applied because the claims came within federal admiralty jurisdiction and the alleged damages were caused by a public vessel. The district court correctly found that the evidence was insufficient to establish that the Ecuadorian government would waive sovereign immunity in similar circumstances, but the district court apparently failed to recognize that it had discretion to inquire further into Ecuadorian law. The district court's judgment was vacated with respect to the determination that reciprocity did not exist; the judgment was otherwise affirmed. The matter was remanded. (9th Cir, April 21, 2011) 639 F.3d 1191; 2011 U.S. App. LEXIS 8173
DEFECTIVE DESIGN CLAIM IN MARITIME PRODUCT LIABILITY CASE
OSWALT, ET AL. V. RESOLUTE INDUSTRIES, INC.
Circuit Court Opinion
Resolute Industries’ technician, while attempting to fix the heater on Curtis Oswalt’s boat, flipped a circuit breaker that Oswalt told him controlled power to the heater, removed the burner unit, and placed the unit on a shelf. The boat subsequently caught fire. Resolute brought a third-party action against the heater's manufacturer, Webasto, alleging the fire was caused by the heater's inadequate warnings and instructions and its defective design. After a two-day bench trial, the court held that Resolute had breached the implied warranty when its technician moved the burner unit to a position where it was certain to start a fire if it turned on without first ensuring the heater's power was disconnected. The court awarded more than $200,000 in damages to Oswalt, including $4110 for hotel expenses Oswalt incurred while the boat was being repaired and surveyor fees. The district court granted summary judgment in favor of Webasto. Resolute appealed the district court’s adverse summary judgment on its products liability claims, the adverse liability verdict on Oswalt's implied warranty claim and the damages awarded for hotel expenses and surveyor's fees. The court of appeals held that summary judgment was properly awarded to Webasto on Resolute’s failure-to-warn claim because the heater's repair manual included an instruction for removing the burner unit that provided a means for disconnection of the power. However, the appellate court held that summary judgment was inappropriate on Resolute’s design defect claim, which alleged that the heater should have been equipped with an automatic current shutoff; compliance with applicable safety standards did not insulate the manufacturer from the claim. There was sufficient causation evidence to support the finding that Resolute was liable for breach of the warranty of workmanlike performance. Oswalt was properly awarded damages for hotel charges he incurred while the boat was being repaired; the owner did not seek to recover for lost recreational use, but for deprivation of use of the boat for lodging while he was working. The grant of summary judgment to Webasto on Resolute’s design defect claim was vacated and remanded. The judgment was otherwise affirmed. (9th Cir, June 6, 2011) 2011 U.S. App. LEXIS 12114
Updater Note: An important recent development in this case is the holding that the Restatement (Third) of Torts §2 replaces the Restatement (Second) of Torts §402A in maritime law.
SANCTION IMPOSED FOR SPURIOUS MOTION
STEPSKI V. THE M/V NORASIA ALYA, ET AL.
Circuit Court Opinion
Michael Stepski, Geal Roderick, and Benjamin Schober sued for damages resulting from the maritime collision of their fishing vessel and a container ship alleged to be owned and managed by the named defendants. The trial court rendered a judgment in favor of defendants, following a jury finding in favor of the container ship. Plaintiffs appealed charging the trial court with error in (1) denying their motion for a new trial on the ground that the verdict was against the weight of the evidence, (2) instructing the jury and providing it with a verdict form, (3) granting partial summary judgment on plaintiffs' punitive damages claims, and (4) engaging in prejudicial conduct at trial. The appellate court held that it had no jurisdiction to review plaintiffs' challenge to the denial of their motion for a new trial on the ground that the jury verdict was against the weight of the evidence. The district court incorporated the Pennsylvania rule, as well as the allegedly violated International Regulations for Preventing Collisions at Sea (COLREGS), into its instructions on negligence. In light of these instructions, as well as counsel's closing arguments, a reasonable jury would have understood the verdict form inquiry as to proof of negligence in the manner claimed by plaintiffs to include all theories of liability. In sum, there was no error, let alone plain error, in the instructions or verdict form. The appellate court further held the plaintiffs' complaint that they were denied due process by the biased conduct of the trial judge was meritless. Although plaintiffs faulted the trial court for admonishing their counsel and witnesses, no new trial was warranted because the record did not indicate that the judge expressed his opinion on an ultimate issue of fact in front of the jury or argued for one of the parties. The judgment of the district court was affirmed. The appellate court also ruled that plaintiffs' multiplication of litigation expenses through a motion so totally lacking in support in law or evidence warranted a sanction in the amount of defendants' reasonable attorneys' fees and costs incurred in defense of plaintiffs’ motion to stay the appeal. (2nd Cir, June 23, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 12775
DRUNK TRIES TO CIRCUMVENT DRAM SHOP LIABILITY LAW BY GOING MARITIME
BREAUX V. ST. CHARLES GAMING COMPANY, INC.
Appellate Court Opinion
Jennifer Ann Breaux became intoxicated at a St. Charles Gaming Co. casino and she fell from a stairway onto the ground below, suffering injuries. Her blood alcohol content was measured at 0.33%. Breaux sued St. Charles Gaming and its insurer under general maritime law for damages resulting from the on its floating casino permanently moored to a dock. In an effort to circumvent Louisiana's anti-dram shop liability law, Breaux alleged that her cause of action was controlled by federal maritime law which contains no similar provision barring her claims The trial court granted summary judgment in Breaux's favor on the issue of maritime jurisdiction and denied St. Charles Gaming's cross motion for summary judgment on the same issue. St. Charles Gaming appealed the summary judgment and filed a writ application seeking review of the denial of summary judgment in its favor. The appellate court took judicial notice of the Fifth Circuit’s decision in De La Rosa v. St. Charles Gaming Co., which held that the same gambling boat was not a vessel for purposes of admiralty jurisdiction. Although Breaux disputed the correctness of the De La Rosa decision, surmising the court had incomplete information regarding the vessel and describing the case as a radical departure from U.S. Supreme Court jurisprudence, the appellate court found nothing in the De La Rosa opinion indicating the court had incomplete or inaccurate facts regarding vessel, and concluded the jurisprudence determinative of this case to be squarely in line with the position advocated by St. Charles Gaming. Notwithstanding a vigorous dissenting opinion by Judge Saunders, the appellate court concluded that the trial court erred in finding maritime jurisdiction in the case. Accordingly, the court reversed summary judgment granted in Breaux's favor and granted the writ application filed by St. Charles Gaming seeking reversal of the denial of summary judgment on the same issue. Summary judgment was granted in favor of St. Charles Gaming, and Breaux's claims asserted under the general maritime law were dismissed. (La. App. 3rd Cir, June 22, 2011) 2011 La. App. LEXIS 800
CONDITION DID NOT MANIFEST ITSELF IN THE SERVICE OF THE SHIP
NORFOLK DREDGING COMPANY V. PACHECO
Jeffery Pacheco, a deckhand employed by Norfolk Dredging Company, allegedly injured his left index finger when he put it in a pinch point aboard Norfolk’s dredge. Pacheco received treatment from four different physicians and complained only of his finger injury. Over two months later, Pacheco first reported left shoulder pain to his treating physician and was later diagnosed – via MRI - with a full thickness tear of his left rotator cuff. Norfolk filed suit requesting declaratory judgment that Pacheco’s left shoulder injury was not related to his work injury incident and that Norfolk had no obligation to pay maintenance and cure to Pacheco for his left shoulder injury. At the bench trial, Norfolk presented testimony from Pacheco’s treating physicians, including an orthopedist who performed extensive range of motion testing on Pacheco’s upper extremities, including his left shoulder, six weeks post-incident, and testified that Pacheco would have complained of pain upon examination if he had sustained a full thickness tear of his rotator cuff during the incident. Pacheco’s case relied mainly on his pre-employment physical which was negative for any shoulder problems and declared him fit-for-duty. Norfolk presented case law demonstrating that the seaman has the burden of proving that his illness or injury occurred and manifested itself while he was in the employ of the vessel owner and, accordingly, a seaman whose illness or injury manifests after conclusion of service to the vessel is generally not entitled to recover for maintenance and cure absent convincing proof of causal connection. The court concluded that the preponderance of the evidence demonstrated that Pacheco's left shoulder pain and full thickness tear of his left rotator cuff were not related to his reported work-related accident with Norfolk. Accordingly, the court held that Norfolk had no obligation to pay maintenance and cure to Pacheco for his left shoulder pain and full thickness tear of his left rotator cuff. Norfolk’s request for Declaratory Judgment absolving it of any liability to pay maintenance and cure to Pacheco for his left shoulder condition was granted. (Va. Cir Ct., May 24, 2011) At Law No.CLI0-780
Updater Note: Thanks to Shawn Voyles, of Crenshaw, Ware & Martin in Norfolk, VA, for sharing this delightful case with me; and congratulations on the outcome here. I especially appreciate readers sending in these state cases that I rarely get on Lexis. I’m sure many of my readers have had the experience of a minor injury to one anatomical area blossoming into other areas of the body, all discovered well after the fact - i.e. alleged excruciating pain masking other areas that were allegedly injured. It nice to see that some jurists don’t buy into this BS.
LET THE JURY DECIDE. I’M JUST A JUDGE.
GREEN V. FLORIDA MARINE TRANSPORTERS, INC.
Marc Green filed a Jones Act complaint against Florida Marine Transporters, Inc. (FMT), alleging that he sustained injuries to his left ring finger while working as a tankerman aboard FMT’s vessel as FMT’s employee. FMT moved for partial summary judgment as a matter of law on Green's claim for maintenance and cure, arguing that it did not employ Green, and that Green forfeited any claim that he might have had to maintenance and cure by leaving his position with FMT and by willfully refusing medical treatment. FMT also argued that damages attendant to the refusal to pay maintenance and cure after Green left his job are not warranted. The court began its “analysis” by observing that the medical evidence suggested that Green had not reached MMI when he left FMT. Therefore, the court concluded, at the very least, there was an issue of fact as to whether Green was or is at MMI. The court rejected FMT's contention that Green forfeited his right to maintenance and cure by quitting his job, holding that the forfeiture would only apply to Green’s maintenance, but not his cure. While the court acknowledged that Green was correct in that FMT owed maintenance until he reached MMI, the court also pointed out that Green would not be entitled to maintenance (and the potentially attendant damages for FMT's failure to pay it) if he simply decided he'd prefer to stay home instead of working the light duty position that FMT provided him. The court left it to the jury to decide whether Green's decision to leave the position at FMT was a failure to mitigate his damages that caused him to forfeit his maintenance payments. FMT also argued that Green forfeited his cure payments by willfully rejecting medical aid. Again, the court declined to address the issue, leaving it to the jury to determine whether Green's decision to forego additional medical treatment deprived him of further cure payments. Finally, FMT argues that it was not Green's employer, meaning it owed no maintenance and cure to Green, because he was really employed by PBC Management, Inc., not FMT. The court held that Green would be allowed to amend his complaint to formally join PBC as a party. FMT’s motion for partial summary judgment was denied. (USDC EDLA, June 8, 2011) 2011 U.S. Dist. LEXIS 60933
Updater Note: It does not appear as though the shipowner raised the desertion defense to maintenance and cure. Desertion is considered willful misconduct and is a bar to both maintenance and cure. See Maritime Overseas Corporation v. Ebner, 697 F.2d 701; 1987 AMC 910
COURT ALLOWS CASE TO PROCEED ON WEAK AND UNFOUNDED ALLEGATIONS
JORDAN V. JEWEL MARINE, INC.
Jack Jordan was employed by Jewel Marine, Inc. as a Captain and alleged his employment with was wrongfully terminated after he reported that the lead captain of the vessel he was assigned to was operating the vessel under the influence of alcohol and marijuana. The captain of the vessel was subsequently given a drug test and passed the test, without evidence of illegal substances. Plaintiff does not dispute that series of events. Jordan brought claims for wrongful discharge allegedly in violation of Louisiana Revised Statute 23:967 ("the Louisiana Whistleblower Act") and the Jones Act exception to the "employment-at-will doctrine. Jewel move for summary judgment, arguing that Jordan was an at-will employee and was terminated for ongoing conflicts with other fellow employees and for giving his crew coordinator an ultimatum to either fire the rest of the crew or fire him. Jordan opposed the motion, maintaining that he watched the captain smoking marijuana aboard the vessel and that the captain had invited Jordan to "smoke a joint with him." Jordan also cited the testimony of another employee who stated that the captain told him he was able to stay awake "from port to port because he had a plate of cocaine. Jordan further maintained that his termination violated public policy, namely, protecting the safety not only of seamen, but the public as well. The court initially noted that insuring the safety of both seamen and the general public, potentially by preventing captains under the influence of drugs and alcohol from manning vessel, is certainly a matter of public policy. The court further concluded that, notwithstanding the captain’s negative drug screens, Jordan had raised extremely weak issues of fact that precluded summary judgment. Additionally, there existed genuine issues of fact surrounding Jordan’s claims of an exception to the employment-at-will doctrine under the Jones Act, specifically with regard to the public policy implications albeit with a weak factual foundation. Jewel’s motion for summary judgment was denied. (USDC EDLA, May 26, 2011) 2011 U.S. Dist. LEXIS 59165
Updater Note: It is because of decisions like this that the judicial system in this country is going to hell in a hand basket. Notwithstanding a long history of negative substance screenings, the court allows an obviously disgruntled employee to impugn the reputation of a Coast Guard licensed captain and make the vessel owner incur additional legal expense, based on innuendo, hearsay and an admittedly weak foundation. Shame on you Ivan!
NEW TREND IN THE EDLA - LET’S RAISE THOSE MAINTENANCE RATES
OWENS V. ABDON CALLAIS OFFSHORE, LLC
Eric Vincent Owens alleged that he injured his lumbar spine and right shoulder while working aboard Abdon Callais Offshore LLC’s vessel. Notwithstanding his alleged injuries, Owens remained in Abdon Callais's employ on light duty for over seven months. During that time, Owens received a wage of $200.00 per day for every day that he remained at Abdon Callais's bunkhouse facility, where he received food and lodging. When he did not stay at the bunkhouse, he received only maintenance at a rate of $15.00 per day. Owens eventually left his job, to go home to have surgery, and Abdon Callais continued to pay Owens maintenance at the same rate of $15.00 per day. Owens eventually underwent a microdiscectomy and filed his Jones Act suit against Abdon Callais. Eventually, Abdon Callais filed a motion for partial summary judgment, arguing that Owens was not entitled to maintenance and cure, based on a McCorpen defense. In support of its motion, Abdon Callais submitted Owens’ historical medical records indicating that Owens went to the emergency room with complaints of low back pain and decreased sensation/numbness in the left thigh, prior to being hired, along with Owens’ employment questionnaire, which Owens answered in the negative with respect to a history of "Injured back/back pain." Owens's reciprocated by moving for partial summary judgment that he is entitled to $56.98 per day in maintenance, that the increased maintenance rate be applied retroactively, and that he is entitled to attorneys' fees from Abdon Callai. The employer cross moved for partial summary judgment that the current maintenance rate of $15.00 per day was adequate, that Owens had reached maximum medical cure, and that it does not owe Owens attorneys' fees. Abdon Callais also maintained that Owens' self-serving affidavit was an insufficient basis for summary judgment on the issue of monthly expenses, in the absence of supporting evidence. The court observed that Owens had alleged injury to both his shoulder and back, and found that Abdon Callais had failed to submit evidence to suggest that Owens suffered from any sort of shoulder infirmity before filling out his medical questionnaire. Therefore, the court noted that even if Abdon Callais could establish the McCorpen defense as it related to Owens's back injury, Owens may still be entitled to maintenance and cure for his shoulder injury. The court found that genuine issues of material fact existed as to whether Abdon Callais could assert the McCorpen defense, and denied Abdon Callais's motion for partial summary judgment in that regard. Based on Owens's affidavit, his lease agreement, receipts, and past-due electric notice, the court found that he had satisfied his feather light burden of demonstrating actual costs in the amount of $56.98 per day. Because Owens met his burden of establishing actual expenses in excess of the maintenance rate Abdon Callais was tendering, the court granted Owens' motion for partial summary judgment in part, finding that the appropriate, reasonable rate for maintenance was $40.00 per day applied retroactively. Considering recent maintenance awards in the Circuit, the court found that the requested rate of $56.98 exceeded reasonable expenses. Based on Owens' actual expenses, however, the court further found that the appropriate, reasonable maintenance rate should be $40.00 per day. The court denied Abdon Callais' cross-motion for summary judgment, finding that the current rate of $15.00 per day was inadequate and that genuine issues of material fact remain as to whether Owens is entitled to maintenance and cure, whether Owens had reached maximum medical cure, and whether he was entitled to attorneys' fees. (USDC EDLA, June 14, 2011) 2011 U.S. Dist. LEXIS 66058
Updater Note: Is anyone else noticing the new trend in the Eastern District of Louisiana? Each month it seems there are a couple of new cases criticizing antiquated maintenance rates and raising them significantly. And if the shipowner does not have a collective bargaining agreement that sets the maintenance rate it is paying, it has little to no protection against these court-imposed rates.
WHAT GOOD IS AN EXPEDITED TRIAL IF YOU DON’T HAVE THE PROPER PARTY?
WILKERSON V. LOUPE CONSTRUCTION AND CONSULTING CO., INC.
Daniel Wilkerson claims to have been employed by Loupe Construction & Consulting, Inc., in the capacity of captain, when the vessel he was assigned to capsized and caused him to be tossed around and to fall. As a result, Wilkerson alleges injuries to his back, neck, spine, and mind and sought judgment against Loupe that he is entitled to maintenance and cure, including attorneys' fees and compensatory and punitive damages arising out of the denial of maintenance and cure. Because Loupe had not commenced the payment of maintenance and cure, Wilkerson moved for an expedited trial on his maintenance and cure claim. Wilkerson represented to the court that his primary care physician had recommended an anterior cervical discectomy and fusion, and because he is destitute and is not currently being paid maintenance and cure, Wilkerson maintained that an expedited trial is an appropriate remedy. Loupe argued that the vessel involved was chartered by Loupe from a third party, who provided the vessel's crew. Accordingly, Loupe maintained that the vessel's owner, and not Loupe, should be the party responsible for any maintenance and cure payments. Loupe argued that the motion for expedited trial should be denied to allow for sufficient time before trial for the vessel owner to be added as a party and to make an appearance, and for discovery to be conducted to clarify the Wilkerson’s employment status at the time of the alleged incident. Further, Loupe asserted that an expedited trial was inappropriate because it has only been provided with limited medical records, and sufficient time must be allowed for medical discovery, including an independent medical examination. The court observed that the discovery issues identified by Loupe were not complex and Wilkerson's medical records reflected that he could suffer permanent and disabling injury to his spinal cord without surgery. Under these circumstances, the court found that expedited trial was warranted. Wilkerson's motion for an expedited trial was granted. (USDC EDLA, June 24, 2011) 2011 U.S. Dist. LEXIS 67805
GENERAL MARITIME NEGLIGENCE CLAIM AGAINST VESSEL OWNER ALLOWED
OLIVER V. WEEKS MARINE, INC.
Patrick Oliver, a nominal employee of Atlantic Sounding Company, Inc., was injured in an unwitnessed fall from his bunk bed ladder, while working on a dredge owned and operated by Weeks Marine. Although Weeks Marine owned and operated the vessel, Oliver was employed by Weeks Marine’s wholly owned subsidiary, Atlantic. After Oliver filed suit, asserting an unseaworthiness and general maritime negligence action, Weeks Marine filed a motion for partial summary judgment seeking dismissal of Oliver’s claim for negligence brought under the general maritime law, arguing that seaman do not have a claim for negligence under the general maritime law. The court rejected Weeks Marine’s argument, finding instead that Weeks Marine was not Oliver’s Jones Act employer, but a third-party vessel owner. Therefore, the court held that Oliver may bring a claim for negligence under the general maritime law against Weeks Marine, and Weeks Marine’s motion for partial summary judgment was denied. (USDC EDLA, June 13, 2011) 2011 U.S. Dist. LEXIS 62744
QUESTION OF ACQUIRED LIABILITY DEFEATS SUMMARY JUDGMENT MOTION
POWELL V. PRIDE OFFSHORE, INC., ET AL.
Gregory Powell allegedly sustained injuries to his neck and back when he slipped on grease while climbing on drill casings as part of his work aboard a Pride Offshore vessel. Powell sued Pride Offshore, Pride International, Ensco Offshore Corporation, Hercules Drilling Company, and Aspen Insurance Holdings, Limited, asserting that the defendants had become related to one another through a series of mergers and acquisitions. With respect to Hercules, Powell argued that Hercules is liable as the reported purchaser of the assets and some liabilities of the vessel he was injured on which was formerly Pride Offshore’s vessel. Hercules responded that it was not Powell’s Jones Act employer and that it did not assume vessel liabilities when it acquired the vessel, moving for summary judgment on Powell’s claims. Powell, nevertheless, argued that there are genuine issues of material fact in dispute and that further discovery is required. The court initially found that Powell never stated in his complaint that Hercules was his Jones Act employer. Additionally, Powell failed to offer any evidence or argument that Hercules was his Jones Act employer. Accordingly, the court granted Hercules’ motion for summary judgment on this issue. Although Hercules admitted to acquiring the vessel Powell was injured on, it nevertheless asserted that it did not assume any liabilities that attached prior to the vessel’s acquisition. However, since none of the documents that Hercules submitted in support of its argument were authenticated, the court ruled that there was no competent summary judgment evidence before it with respect to the issue of acquired liability. Accordingly, the court denied Hercules’ motion for summary judgment with respect to Powell’s unseaworthiness claim. (USDC EDLA, June 20, 2011) 2011 U.S. Dist. LEXIS 64980
COURT ANALYZES THE DOCTRINE OF ABSTENTION
ZERANGUE V. MAINTENANCE DREDGING, ET AL
John A. Zerangue filed suit in state court, against Maintenance Dredging, Inc.(MDI), for injuries he allegedly sustained when he tripped over a cable/wire on a maintenance barge adjacent to an MDI dredge. Zerangue filed his claims under the Jones Act and general maritime law. He also alleged Maintenance Dredging's liability under the doctrine of respondeat superior for the negligence of its employees. After MDI filed its answer and the parties exchanged written discover, Zerangue died. A motion was filed with the court to substitute Zerangue’s estate as proper party on May 24, 2010, which substituted his estate as the proper party plaintiff. Zerangue’s estate also filed a complaint against MDI and its insurer in federal court, and adding the dredge captain as a defendant. MDI filed a motion to dismiss the complaint or, alternatively, motion to stay proceedings, asserting that the federal court case should be dismissed or stayed pursuant to the doctrine of abstention, because Zerangue's nearly identical suit had been pending in state court for over two years. Zerangue opposed MDI’s motion. The court began its analysis by observing that the doctrine of abstention, under which a court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it. The court reviewed the Colorado River factors laid out by the U.S. Supreme Court with respect to the doctrine of abstention and concluded that three of the six factors weighed heavily in favor of abstention, while two factors weigh against abstention and one of the factors was neutral. After balancing all of the Colorado River factors and weighing the competing interests, the court held that the federal court proceeding should be stayed and administratively closed Zerangue’s case, without prejudice to it being reopened, after resolution of the state court action, if all issues have not been resolved, or otherwise in the interest of justice. (USDC WDLA, May 2, 2011) 2011 U.S. Dist. LEXIS 64962
SLEEPING, EATING & MEETING ON A VESSEL DOESN’T MAKE YOU A SEAMAN
WILLIAMS V. DANOS AND CUROLE MARINE CONTRACTORS, LLC, ET AL.
Danos & Curole (D&C) hired Michael Williams to perform sandblasting and painting services on petroleum platforms owned by Energy Resource Technology GOM, Inc.(ERT), pursuant to a Master Services Contract (MSC), which specified that D&C was an independent contractor of ERT. To transport and house Williams, other members of D&C’s blasting/painting crew, and their equipment, ERT provided a supply vessel owned by a third-party contractor. The D&C workers slept, ate, and used the bathroom on the vessel, and would transfer to the platform each day to work 12-hour shifts. After about a week into his second hitch, Williams allegedly suffered an injury to his left shoulder as he and other members of the crew retrieved a D&C "pick board" from the platform. Williams brought suit action against D&C and ERT, asserting claims under the Jones Act and the general maritime law. D&C moved for summary judgment on Williams’ status as a seaman. The court found that D&C had established, as a matter of law that Williams lacked a substantial connection to the vessel in terms of duration. D&C submitted the affidavit of Williams' supervisor, who testified that at no time was Williams ever assigned to a vessel except on a temporary and transient basis that formed far less than 30% of his total work time on the ERT job. Williams offered nothing to refute this evidence. Indeed, Williams' attorney conceded at oral argument that there was no evidence in the record to suggest that Williams spent at least 30 percent of his work time aboard the supply vessel. And although Williams spent time on the vessel eating and sleeping, that time does not figure into the analysis, because it was not spent "in the service of a vessel in navigation. Consequently, the court found that Williams lacked a substantial connection to the vessel and that D&C was entitled to summary judgment on Williams' status as a seaman. Williams argued that a jury could find ERT's involvement in the decision to work on the day of his incident rendered ERT liable. However, the court found, as a matter of law, that ERT did not retain operational control over D&C’s activities, as D&C could accept or reject ERT's suggestions or recommendations as it saw fit. As such, Williams could not show that an exception to the general rule that a principal is not liable for the negligence of its independent contractor applied. Summary judgment was granted in favor of both D&C and ERT, and Williams’ claims against both defendants were dismissed with prejudice. (USDC EDLA, June 23, 2011) 2011 U.S. Dist. LEXIS 66860
CLAIMANT SUES SLEAZY ATTORNEY WHO WANTED HIM TO PERJURE HIMSELF
MITCHELL V. SCHOEN, ET AL.
John G. Mitchell retained Dennis T. Schoen to represent him in a personal injury case against his employer, Central Marine Logistics, to seek monetary damages for injuries he allegedly sustained in a work-related accident that occurred on August 31, 2003. On September 1, 2006, three years and one day after Mitchell's injury, Schoen filed a personal injury action on Mitchell's behalf in Illinois state court. Mitchell alleged common law tort claims and claims arising under the Jones Act. The statute of limitations in Illinois for common law torts and actions under the Jones Act are two and three years, respectively. Schoen allegedly attempted to coerce Mitchell into signing a perjured affidavit concerning the date of his alleged accident to preserve the underlying action. Mitchell refuse to signed the affidavit and Schoen withdrew as counsel for Mitchell. The underlying action was dismissed for want of prosecution. A later re-filed a complaint was dismissed with prejudice on timeliness grounds. Mitchell then filed a three-count complaint against Dennis T. Schoen, individually, and Schoen's law firm, Schoen Browne, P.C, alleging claims for negligent legal malpractice, breach of contract, and breach of fiduciary duty. Schoen moved to dismiss Mitchell’s causes of action, arguing that Mitchell's malpractice claim is barred because at the time Schoen withdrew as Mitchell's counsel, the underlying action was still viable. Schoen also moved to dismiss Mitchell's breach of contract and breach of fiduciary duty claims, arguing that they are duplicative of the legal malpractice claim. The court observed that it was obligated to take plaintiff's factual allegations as true. Since Mitchell claimed that his underlying action was not viable when Schoen withdrew as counsel, the court refused to dismiss the malpractice cause of action. The court noted that Mitchell alleged the same operative facts and injury in both his legal malpractice and his breach of contract claims. If a contract and tort claim stem from the same common nucleus of operative facts and result in the same injury, the contract claim should be dismissed as duplicative. Therefore, the court granted the motion to dismiss the breach of contract cause of action. However, the court found that a different set of operative facts, at least in part, gave rise to Mitchell's breach of fiduciary duty claim, including an allegation that Schoen attempted to have Mitchell sign a false affidavit. Since the false affidavit allegation was not included in the legal malpractice claim, the court denied the motion to dismiss as to the breach of fiduciary duty claim. (USDC NDIL, May 31, 2011) 2011 U.S. Dist. LEXIS 57874
NO SHOWING OF ALTER-EGO, BUT SUFFICIENT GROUNDS TO PROCEED
POWELL V. PRIDE OFFSHORE, INC., ET AL.
Gregory Powell allegedly sustained injuries to his neck and back when he slipped on grease while climbing on drill casings as part of his work aboard a Pride Offshore, Inc., where he worked as a seaman. Powell claimed that the grease was left by employees of Pride International before he started working, and that Pride International's negligence was the direct and proximate cause of his injuries because Pride International failed to provide a proper ladder in accordance with its safety manual. Powell filed suit to recover damages for medical expenses, pain and suffering, permanent residual disability, emotional stress and strain, loss of wages, and loss of enjoyment of life from Pride Offshore, Pride International, Ensco Offshore Corporation, Hercules Drilling Company, and Aspen Insurance Holdings, Limited. Powell asserts that all the defendants have become related to one another through a series of mergers and acquisitions. With respect to Pride International, Powell asserted that Pride International is liable as the alter ego of Pride Offshore and, alternatively, that Pride International is liable as the owner of the vessel aboard which he was injured. Pride International moved to dismiss Powell’s claim under FRCP 12(b)(6), arguing that Powell had failed to allege sufficient facts to set forth a plausible claim for relief against Pride International. The court initially noted that Powell failed to allege facts in his complaint relating to his theory of liability or address any of the nine factors set forth by the Fifth Circuit to determine whether a parent company is liable for its subsidiary. Due to the lack of factual allegations in the complaint regarding Pride International's liability as an alter-ego of Pride Offshore, the court concluded that Powell had not properly stated a claim in his complaint with respect to this theory of liability. Nevertheless, the court acknowledged that Powell asserted a negligence claim against Pride International, which was separate from and not dependant on a theory of alter-ego liability. The allegations that Pride International owned the vessel upon which Powell was working and that its employees left the grease which caused him to fall, taken as true, gave rise to a plausible claim for relief against Pride International. The motion to dismiss was denied. (USDC EDLA, June 8, 2011) 2011 U.S. Dist. LEXIS 61495
I NEED TO TAILOR MY LIES TO THE STATEMENT I PREVIOUSLY GAVE
HILL V. HORNBECK OFFSHORE SERVICES, LLC
This Jones Act case involved a discovery dispute over whether a statement the plaintiff had given had to be disclosed before or after his deposition. Daniel Dwayne Hill sought an order compelling Hornbeck Offshore Services, LLC, to produce the statement he had given at the time of his two alleged injuries sustained while employed by Hornbeck. Hornbeck opposed the motion, arguing that it would produce the statement, but will do so only after the Hill has submitted to a deposition. Hill contended that he is entitled to a copy of his statement pursuant to FRCP 26(b)(3)© which provides that a witness's own prior statement be provided upon request and without a special showing. Hornbeck attempted to distinguish this case from a prior ruling by the same magistrate by arguing that the accident was unwitnessed and that Hill went back to work as a barge captain for Hornbeck after the accident, and failed to notify Hornbeck or make any allegations as to negligence or unseasworthiness until over two years after the alleged incident. Hornbeck contended that this was good cause for delaying the production of the statement, because if it was forced to provide the statement prior to the deposition, it will be denied the opportunity to rebut Hill’s testimony with his statement. Although the court acknowledged that other courts have found that, in certain circumstances, delaying the production of a witness statement is proper, it was not persuaded that the arguments made by Hornbeck constituted good cause. The court found that Hornbeck had failed to articulate why this circumstance demonstrated that the Hill would not testify truthfully or would testify truthfully only because of the threat that his prior statements might contradict him. The court held that since Hornbeck had not provided suitable good cause basis for delaying the production of the statement, Hill’s motion to compel was granted. (USDC EDLA, June 27, 2011) 2011 U.S. Dist. LEXIS 68439
ADJUSTER’S INTERVIEW NOTES HELD TO BE PROTECTED WORK PRODUCT
HALPIN V. BARNEGAT BAY DREDGING CO., INC.
Vernon Halpin had been employed by Barnegat Bay Dredging Co. (BBDC) since 2005 as a deckhand aboard one of their dredges. Halpin alleged that he was injured while attempting to remove a poly ball from a 500 foot section of plastic discharge pipeline so that it could be attached to the metal discharge pipeline of the dredge. Halpin claimed that a sudden lurch of the pipeline, allegedly caused by a dredge tender boat, caused his right arm to be crushed. Following his discharge from the hospital, Halpin was visited a home by BBDC’s insurance adjuster and was interviewed about his accident and drew an accident diagram with his left hand. After Halpin filed his Jones Act suit against BBDC, he moved to compel BBDC to produce all statements obtained from interviews of employees of BBDC, others with knowledge of Halpin’s accident, and Halpin’s statement and drawing pursuant to FRCP 34, 37, and 45" together with an award of attorneys' fees and costs. BBDC opposed the motion, arguing that because of the severity of Halpin’s injury, BBDC and its insurer anticipated that Halpin would bring a lawsuit under the Jones Act and general maritime law. BBDC objected to Halpin’s discovery demands as calling for material gathered in anticipation of litigation or otherwise subject to privilege. Halpin argued that he would be unable to get equivalent discovery through deposition because memories may have faded and he would be unable to obtain the substantial equivalent of the contemporaneous statements given to BBDC’s adjuster without undergoing substantial hardship. Initially, the court noted That BBDC’s adjuster did not take recorded statements or prepare written statements for anyone to sign. The adjuster merely took some "rough notes" and recorded them on his laptop computer. With respect to the drawings the adjuster collected, he did make his own noted on the drawings and the redacted drawing had already been produced to Halpin, so Halpin motion with respect to the drawings was denied as moot. The court further found that the adjusters notes on the drawings and notes with respect to his interviews of Halpin were insufficient to meet the definition of a contemporaneous recording that recites substantially verbatim the person's oral statement. Therefore, the court's consideration of the adjuster’s notes fell under the rubric of FRCP 26(b)(3)(A). Because Halpin was a seaman and held a statutory right to bring a civil action against BBDC for injuries sustained in the course of employment, BBDC and its insurer reasonably anticipated that Halpin would bring a lawsuit under the Jones Act and general maritime law and were, therefore, work product protected from disclosure. The court further found that Halpin failed to demonstrate that he had substantial need for the materials to prepare his case and cannot, without undue hardship, obtain their substantial equivalent by other means. Halpin’s motion to compel production and request for an award of counsel fees and costs was denied. (USDC DNJ, June 27, 2011) 2011 U.S. Dist. LEXIS 68828
Updater Note: Congratulation to Lisa Reeves, of Reeves McEwing LLP of Philadelphia, PA, on this discovery victory. As we can see from the case above this one, employers do not always win this battle.
ACCIDENT THREE HOURS EARLIER JUST HAPPENED TO SLIP HIS MIND
MILLER V. DIAMOND OFFSHORE MANAGEMENT CO., ET AL.
Jason Miller allegedly sustained injuries to his shoulder and upper extremities in a fall while employed by Diamond Offshore Management Company while aboard its mobile offshore drilling unit. Miller contended that he fell into a hole due to slippery mud on the deck, inadequate lighting during his night shift, and the absence of guardrails that had been removed from the area around the opening. Coincidently, Miller allegedly fell into the exact same hole from which he had, three hours earlier, excavated his supervisor. Conveniently, at his deposition, Miller testified that it "slipped his mind" that the "hole was there." After filing suit against Diamond, Miller moved for partial summary judgment seeking a judgment finding Diamond liable and negligent per se, and prohibiting Diamond from introducing evidence regarding comparative fault. Diamond opposed the motion, arguing that a finding of negligence per se would be unsupported by the facts and thus, the issue of whether Diamond may raise the defense of comparative fault should not at this stage be reached as summary judgment is precluded. Diamond highlighted Miller’s knowledge of the open area where the handrails had been temporarily removed as his supervisor, had actually fallen into the bay area three hours prior. The court found that a genuine issue of fact existed as to the applicability of the Coast Guard regulation cited by Miller in support of his motion, namely 46 CFR §108.217; specifically, whether the hole into which Miller’s supervisor and later Miller fell constituted a "deck opening" within the purview of the regulation. Because this finding precluded summary judgment, the court declined to address further applicability of the negligence per se standard. Miller’s motion for partial summary judgment was denied. (USDC EDLA, June 27, 2011) 2011 U.S. Dist. LEXIS 68435
COURT STRIKES GOVERNING LAW PROVISION AND ORDERS ARBITRATION
SHAW V. CARNIVAL CRUISE LINES
After sustaining numerous alleged injuries while employed by Carnival Cruise Lines, Errol W. Shaw, a citizen of Jamaica, filed his suit against Carnival, alleging claims of Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide prompt and adequate medical care. Carnival moved to dismiss the Complaint and compel arbitration, consistent with the arbitration provision of Shaw’s employment agreement and pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After reviewing the terms of the employment agreement, the court found that the four jurisdictional prerequisites set forth in Bautista were satisfied. The court’s Thomas analysis found that the choice of law and arbitration provisions in the agreement operated in tandem to bar Shaw's Jones Act claim, thereby prospectively voiding the arbitration provision as against public policy. Nonetheless, the court found that the public policy concerns present in Thomas were obviated by Carnival’s stipulation to apply United States law to Shaw’s Jones Act claim and by the severability provision of the agreement, excising the choice of law provision. Carnival's Motion to Dismiss and Compel Arbitration was granted in part and the parties were directed to arbitrate all Shaw’s claims. However, the court struck the "Governing Law" provision of the agreement, insofar as it applies to Shaw’s Jones Act claim and the arbitrator was ordered to apply U.S. statutory law to this claim only. (USDC SDFL, May 31, 2011) 2011 U.S. Dist. LEXIS 58704
YOU STRESSED ME OUT SO MUCH, I FORGOT I DON’T GO TO SEA ANYMORE
ZEGHIBE V. CONOCOPHILLIPS COMPANY
Kenneth F. Zeghibe asserted a workload stress claim against ConocoPhillips, alleging that because of the stresses of being away from home for extended periods, being denied the leave to which he was entitled and the resulting breakdown in his marriage, he had suffered from extreme emotional distress and seizure-like episodes that have made it impossible for him to work. Zeghibe was employed as a Captain in the marine division involved in tanker construction, which mostly took place at a shipyard, where Zeghibe had a trailer office. Zeghibe brought suit against ConocoPhillips, alleging personal injury claims under the Jones Act, and general maritime claims of unseaworthiness and maintenance and cure. ConocoPhillips moved for summary judgment, arguing that Zeghibe's claims should be dismissed because they were time-barred, the Jones Act does not apply; maritime tort jurisdiction was lacking; and Zeghibe's claims were not supported by medical causation. Zeghibe argued that he qualifies as a seaman because he served as a sea captain in ConocoPhillips' fleet of tankers, and remained a ship's master throughout his extended "special assignment" at the shipyard. However, ConocoPhillips pointed to Zeghibe’s admissions in his deposition that the majority of his work involved construction of the vessels, as opposed to time at sea. The court reviewed the evidence of Zeghibe’s employment and found that, under the "rule of thumb" approved by the Supreme Court in Chandris, because Zeghibe spent almost all of his time assigned to land-based construction tasks, he did not qualify as a Jones Act seaman. The court noted that even if it were to disregard the thirty percent rule of thumb, Zeghibe still would not qualify for seaman status under the Jones Act because he was at home and on leave from work at the time of his alleged breakdown, and by his own admission, was not exposed to the perils of the sea. The court also concluded that Zeghibe's general maritime claims also failed the "location" test since his claimed breakdown occurred while he was at home in Massachusetts, approximately 3,000 miles away from the vessel he claimed to be attached to. To the extent that Zeghibe asserted other torts, which allegedly occurred during vessel construction, the court held these claims also failed for want of jurisdiction. Any purported construction-related injuries did not fulfill the Graybeard location test because they were not caused by a vessel in navigation. The court declined to resolve the time bar or causation issues on summary judgment, as jurisdiction was clearly lacking under either the Jones Act or general maritime law. The court granted ConocoPhillips' Motion for Summary Judgment. Zeghibe’s claims were dismissed with prejudice.
DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN-LET THEM SWIM TO WORK
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.
Jacob Kinchen and Lary Scott Abshire (collectively "plaintiffs"), ironworkers, who were employed by Boh Bros. to work on a bridge under construction, were allegedly injured when the crew boat in which they were traveling from the work site to shore at the end of the day allided with one of the survey towers used in conjunction with the bridge construction. Plaintiffs filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewet Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for their boating accident and the injuries they allegedly sustained. Boh Bros. and the Joint Venture were contractors involved in building the new I-10 Twin Span bridge connecting New Orleans with Slidell, on behalf of the Louisiana Department of Transportation and Development. Boh Bros. built the approaches to the bridge. The Joint Venture built the high rise portion of the bridge. The trial was "bifurcated" on the issues of Abshire's seaman status, plaintiffs' Jones Act claims against Boh Bros., plaintiffs' unseaworthiness claims against Boh Bros., and plaintiffs' general maritime law claims against the Joint Venture. Initially, the court found that Kinchen and Abshire were Jones Act seaman. The fact that Kinchen did not sleep, eat supper, stand watch, or sail aboard the vessel did not preclude a finding that he was a Jones Act seaman. He had a connection to a vessel in navigation that was substantial in duration and nature because he was regularly exposed to the perils of the sea and spent more than 30% of his time working aboard the vessel. Abshire also satisfied the duration requirement of the Chandris test and the court held that he was also a Jones Act seaman. The plaintiffs testified that Boh Bros. was negligent because the crew boat, with the tires affixed to the push knees, obstructed their view, causing the allision with the survey tower. The court agreed, finding the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires created a visual obstruction, and did not remedy the situation which was created by its employee. Further, the court held that the evidence demonstrated that the placement of the tires on the push knees rendered the crew boat unseaworthy. However, Kinchen's recovery was reduced by his comparative negligence, which the court found to be 50% fault for the allision. The court found that Abshire's injuries were caused by the combination of the negligence of Kinchen, a Boh Bros. employee, and the unseaworthiness of the vessel caused by another Boh Bros. employee who installed the tires on the top of the push knees. Abshire was therefore held entitled to recover 100% of his damages against Boh Bros. The court dismiss the plaintiffs’ general maritime claim against the joint venture, finding the survey towers were visible from approximately a mile away on a clear day, well marked and the joint venture owed no further duty to the plaintiffs. (USDC EDLA, June 21, 2011) 2011 U.S. Dist. LEXIS 65546
AIR TOUR OF NAVIGABLE WATERWAY HELD NOT TO BE MARITIME JURISDICTION
IN RE HUDSON RIVER MID-AIR COLLISION ON AUGUST 8, 2009
On the morning of August 8, 2009, a Piper N71MC and a Eurocopter N401LH collided in midair, allegedly in part due to errors made by an air traffic controller. Both aircrafts plummeted into the Hudson River, killing the pilot and five passengers on board the Eurocopter, as well as the Piper's pilot and two passengers. Plaintiffs, the representatives of the five deceased Eurocopter passengers, assert admiralty and maritime claims against Liberty Helicopter Inc. and Meridian Consulting I Corporation, Inc. The defendants moved to dismiss the admiralty and maritime claims, contending that admiralty jurisdiction and the application of maritime common law is not appropriate, because all contacts with the Hudson River are merely fortuitous and the crash bore no relationship to traditional maritime activities. The court noted that the parties did not dispute that the location test was readily satisfied, as the airplane and helicopter crashed over the Hudson River and landed in navigable waters. Thus, the only remaining issue was whether the activity of taking a helicopter tour over the Hudson River has a substantial relationship to traditional maritime activity. The court observed that this case would ultimately be about whether there were errors made by the air traffic controller, and the Piper and Eurocopter pilots, not about issues within "admiralty's area of particular competence. Moreover, the case did not concern activity traditionally performed by waterborne vessels. Though the plaintiffs tried to make much of the fact that the decedents were taking a tour of the Hudson river, the court found this argument unpersuasive, noting that there are many more boat tours of the river than there are helicopter tours. The court found that there was an insufficient connection with traditional maritime activity to permit the admiralty and maritime claims to proceed against any of the Defendants. The defendants' motion to dismiss the admiralty and maritime claims was granted. (USDC DNJ, June 17, 2011, UNPUBLISHED) 2011 U.S. Dist. LEXIS 65491
COURT ORDERS WAGE DISPUTE TO BE ARBITRATED
CHIOTAKIS V. CELEBRITY CRUISES INC.
This case involved allegedly unpaid overtime wages owed to Celebrity Cruises Inc.’s housekeeping staff from 1992 to the present. Emmanouil Chiotakis, the named plaintiff in this putative class of employees, worked Celebrity’s housekeeping department in its Caribbean fleet from approximately 2002 through 2008. He alleged being owed unpaid overtime wages, penalties and statutory damages under 46 U.S.C. §10313, the Seaman's Wage Act. Chiotakis Originally brought suit against Celebrity in state court, but Celebrity removed the action to federal court and subsequently moved to dismiss, arguing that the Wage Act claim must be dismissed as it was governed by a mandatory arbitration provision. After reviewing the signed employment agreements, which incorporated by reference the collective bargaining agreements which governed all terms of Chiotakis’s employment, including Celebrity’s obligation to pay him overtime wages, the court granted Celebrity’s Motion to Dismiss and directed Chiotakis to proceed to arbitrate his overtime wage dispute as per his employment contract. (USDC SDFL, May 31, 2011) 2011 U.S. Dist. LEXIS 58396
Quotes of the Month . . . “Employment is nature's physician, and is essential to human happiness."--Claudius Galen
“Life is change. Growth is optional. Choose wisely."--Karen Kaiser Clark
“Where all think alike, no one thinks very much." --Walter Lippmann
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
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Notes From Your Updater - The Petition for a Writ of Certiorari filed with the U.S. Supreme Court in the case of Vickers v. Weeks Marine, Inc. et al., Docket No. 10-1312 [see May 2010 Longshore Update and March 2011 Longshore Update] was denied on June 6, 2011. The question the pro se jailhouse lawyer plaintiff sought to present to the Court was: “If a ‘Key Man’ possesses a unique talent that is essential to economically sustain a business, is the loss of that talent, due to the denial of medical care for a personal injury, an injury to business and property, under the Racketeering Influenced and Corrupt Organizations [RICO] Act?
The US Court of Appeals for the District of Columbia Circuit ruled that the 2008 rulemaking by the Occupational Safety and Health Administration (OSHA) regarding vertical tandem lifts (VTLs) of cargo at marine terminals is generally valid, but that the portions relating to the inspection requirement for ship-to-shore VTLs and the total ban on platform container VTLs are invalid. National Maritime Safety Association v. OSHA, No. 09-1050 (DC Cir., June 17, 2011).
The Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) is amending its maximum daily civil penalty assessments for violations of regulations implementing the Outer Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990 (OPA 90) to reflect increases in the consumer price index (CPI). The maximum daily civil penalty assessment for violation of OCSLA regulations will be increased to $40,000. The maximum daily civil penalty assessment for violation of the OPA 90 financial responsibility regulations will be increased to $30,000. The changes come into effect on August 1. See 76 Fed. Reg. 38294
MY ILLNESS IS DUE TO MY WORK BECAUSE I SAY IT IS
JOSEPH V. DIRECTOR, OWCP [NORTHROP GRUMMAN]
Circuit Court Opinion
BRB Decision
ALJ Decision
Warren Joseph was working as an electrician for Northrop Grumman Ship Systems, Inc., when he was allegedly exposed to smoke and fumes from nearby welding. Joseph left work early that day, and two days later he was transported by ambulance to a hospital where he was diagnosed with septic shock and bacterial community-acquired pneumonia. Northrop paid Joseph temporary disability benefits, however, Joseph filed a claim for LHWCA compensation seeking additional benefits, contending that his illness was related to his exposure to smoke and fumes on the job. Following a formal hearing, the ALJ held that Joseph’s injuries were not work related and denied his claim for worker’s compensation. Although the ALJ held that Joseph made a prima facie case due to the close timing between his symptoms and his exposure to the welding fumes, he also found that Northrop had presented substantial evidence to the contrary because all the physicians who examined Joseph agreed that his illness was not caused by his exposure to smoke and fumes at Northrop. The BRB subsequently affirmed. Proceeding pro se, as he had done before the BRB, Joseph appealed raising numerous issues on appeal; the primary issue being whether the BRB was correct in holding that the ALJ’s decision was based on substantial evidence and is consistent with the law. The appellate court also concluded that the ALJ’s finding was supported by the record. There was no medical evidence linking Joseph’s illness to his workplace, and the timing of his illness was purely coincidental. The court affirmed the BRB’s holding that Joseph’s illness was not related to exposure to welding fumes at Northrop. The appellate court declined to entertain Joseph’s other arguments, raised for the first time on appeal, finding them frivolous and entirely unsupported arguments. (5th Cir, June 9, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 11739
STEVEDORE IS HELD TO BE A CONTRACTOR, NOT A SUBCONTRACTOR
BAYOU STEEL CORPORATION V. NATIONAL UNION FIRE INSURANCE COMPANY
Circuit Court Opinion
Ryan Campbell, an employee of Kindra Marine Terminal, was allegedly injured during Kindra's unloading of Bayou Steel Corporation’s steel bundles from a vessel belonging to Memco Barge Lines. Memco had contracted with Bayou to haul the cargo for Bayou by barge from Louisiana to Illinois. The issue to be determined in the case was whether Campbell's employer, Kindra, was Bayou's contractor or its subcontractor for purposes of the provision in Bayou’s insurance policy that excluded coverage of Bayou's liability for bodily injury incurred by employees of Bayou's subcontractors but did not exclude coverage of such injuries incurred by employees of Bayou's contractors. Following an extensive analysis of the meaning of "subcontractor" in Louisiana law, the district court impliedly ruled that Kindra was Bayou's subcontractor when it granted Bayou’s motion for summary judgment excluding coverage under the insurance policy in question. On appeal, the US Court of Appeals for the Fifth Circuit ruled that a company hired by a cargo owner to unload the cargo from a third party barge is a contractor. The appellate court concluded that Bayou had contracted separately with Memco for carriage of the cargo and with Kindra for the removal of the cargo from the barge. As Bayou was the principal party (paying party) and not the prime contractor (performance party) under both its barge transportation agreement with Memco and its offloading agreement with Kindra, there was no way for Kindra to have been a subcontractor of Bayou within the intendment of the insurance policy exclusion of coverage for injuries sustained by employees of Bayou's subcontractors. Kindra contracted directly with Bayou — not with some contractor of Bayou — to offload Bayou's cargo, so Kindra was Bayou's contractor, not its subcontractor. The appellate court reversed the district court's summary judgment and remanded the case for further proceedings consistent with its holding. (5th Cir, May 31, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 10920
MARINE SURVEYOR ONLY OWED A DUTY OF ORDINARY CARE
WAAS V. IKAN MEXICO MV, ET AL.
Circuit Court Opinion
While working for a third-party cargo interest as a marine surveyor, Suneth Waas fell from a Jacob's ladder rigged by the stevedore, Pacorini Holding, LLC, between a river barge and a vessel owned by KK Shipping Marine S.A. Waas filed suit against Pacorini and KK Shipping, claiming negligence under the LHWCA and general maritime law. Both Pacorini and KK Shipping moved for summary judgment, and the district court granted their motions, dismissing Waas's claims. The court held that Pacorini owed Waas a duty of ordinary care and that Pacorini did not breach that duty. The district court also held that the vessel's owner, KK Shipping, did not have a duty to intervene to prevent use of the Jacob's ladder without fall protection. Waas filed a Rule 59(e) post-judgment motion to alter judgment, which the district court denied. Waas timely appealed, arguing that the district court improperly focused on the duty of care and failed to address Waas's argument that Pacorini breached its warranty of workmanlike performance. The appellate court rejected this argument, noting that the warranty of workmanlike performance was not applicable to Waas’s case because it is a principle of contribution and indemnity between defendants. Citing no authority for the proposition, Waas next contended that, by allowing Waas to use its ladder, Pacorini's duty of care became heightened. The appellate court also rejected this theory, noting that the record showed that the use of a Jacob's ladder was a standard practice in the industry. There was no evidence that the ladder itself was defective. Pacorini acted with reasonable care and OSHA regulations cited by Waas did not operate to increase the duty Pacorini owed Waas, because they regulate the duty owed by an employer to its employees, and Pacorini was not Waas's employer. Finally, Waas argued that a jury should have been allowed to determine whether Pacorini's judgment in using the Jacob's ladder without fall protection was improvident, triggering the duty to intervene. The appellate court again noted that, because the Jacob's ladder was standard practice in the industry and the ladder itself was not defective, the duty to intervene did not arise as a matter of law. The summary judgment in favor of Pacorini and KK Shipping was affirmed. (5th Cir, June 3, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 11372
STEVEDORE NOT LIABLE UNDER THE “GOING AND COMING” RULE
BARCLAY, ET AL. V. PORTS AMERICA BALTIMORE, INC.
Appellate Court Opinion
Christopher Richardson was a longshoreman, who worked loading and unloading ships arriving in Baltimore. Ports America Baltimore, Inc. manages and operates marine cargo facilities in Baltimore. The terms of employment for Richardson, including working additional consecutive shifts, were governed by a collective bargaining agreement. After working 22 hours, Richardson was involved in a head-on collision on his way home when he fell asleep at the wheel. Richardson’s vehicle crossed the center line of a road and collided with the vehicle of Michael S. Barclay, a police officer. Barclay suffered injuries and Richardson was killed. Barclay filed suit against multiple parties, including Ports America and summary judgment was granted to Ports America upon finding that it was not vicariously liable pursuant to the "going and coming" rule of respondeat superior. Further, the trial court found that Ports America owed no direct duty to Barclay as a member of the general public. Barclay and Richardson’s personal representative, sought review of the trial court’s judgment in favor of Ports America. On appeal, the appellate court found that the "special mission or errand" exception to respondeat superior did not apply, and there were no "special circumstances" that overrode the "coming and going" rule. Whether Ports America had a duty or special relationship with either Richardson or the public was not controlling, as the alleged facts did not show the requisite proximity of cause and effect. Further, Ports America was not liable to Richardson on cross-claims for indemnity or contribution. The appellate court affirmed the judgments of the trial court. (Md. App., April 29, 2011) 198 Md. App. 569; 18 A.3d 932; 2011 Md. App. LEXIS 56
Updater Note: Although this is not a Longshore case per se, I wanted to make my readers aware of it because of the increasing number of “fatigue” claims we are seeing in the maritime industry.
§905B CLAIM AGAINST VESSEL OWNER FAILS
AGUILAR, ET AL V. BOLLINGER SHIPYARDS, INC., ET AL
Luis Alonso Aguilar sued Bollinger Shipyards, Inc., under general maritime law, and Blessey Marine Service, Inc., under §905(b) of the LHWCA, for injuries he allegedly sustained, when he was working for Karl Senner, Inc. as a service technician on board a vessel owned and operated by Blessey. The work was being done at Bollinger’s shipyard. Aguilar was working alongside two Senner employees, and they were all in the process of reinstalling certain repaired gears in the starboard side of the engine room when Aguilar was allegedly struck in the lower back by a falling I-beam that had been positioned above the engine room as a lifting point for the chain hoist and chains used to move the equipment into place. The court heard testimony from a fellow Senner employee of Aguilar’s, who took full responsibility for choosing the method of work and positioning the I-beam. Neither Blessey nor Bollinger gave him instructions to do anything with regard to the beam. The court concluded that the testimony of other lay witnesses added to the inevitable finding that Senner alone was responsible for the safety of the lift. The court observed that the gist of the plaintiffs' claims against both Blessey and Bollinger was that the vessel owner and shipyard should have supervised the Senner operations to ensure that Senner employees did not act in a manner in which they could harm themselves. However, the jurisprudence does not extend the duty of the vessel owner or the shipyard this far, and the court held that the recognition of such a duty runs contrary to the underpinnings of Scindia and would virtually require the provision of a supervisor for every independent contractor in the yard. Instead, the court found that both defendants acted reasonably at all times and breached no duty owed to Aguilar. Accordingly, judgment was entered against the plaintiffs and in favor of the defendants, dismissing the plaintiffs' claims with prejudice. (USDC EDLA, June 16, 2011) 2011 U.S. Dist. LEXIS 63602
SUMMARY JUDGMENT GRANTED BASED UPON LHWCA IMMUNITY
IN RE: ASBESTOS PRODUCTS LIABILITY LITIGATION
Walter McDonald filed suit in state court, against numerous defendants, alleging occupational exposure to asbestos during his employment in the Port of New Orleans and the development of asbestos-related lung cancer. McDonald’s state court suit was removed to federal court, on the basis that defendant Industrial Development Corporation of South Africa, Ltd. was a political subdivision, agency, or instrumentality of a foreign state pursuant to 28 U.S.C. §1603. McDonald later died, and his wife and children were substituted as plaintiffs. SSA Gulf Terminals, Inc. filed a motion for summary judgment, arguing that the LHWCA provides the exclusive remedy for the decedent's alleged injuries, and that separate remedies may not be provided by state law. In rebuttal, plaintiffs contended that the case was not governed by the LHWCA because they seek relief only under Louisiana state tort law. Plaintiffs also assert that an issue of genuine fact exists as to where McDonald was exposed to asbestos. SSA asserted that after discovery it had become clear the only exposure McDonald had to asbestos occurred in vessels on the navigable waters of the United States. Plaintiffs argued that a genuine issue of material fact existed as to where McDonald was exposed to asbestos because, according to McDonald's testimony, asbestos dust would settle on his person, clothing, and hair, and he would, therefore, be exposed to that remaining asbestos on land after leaving the vessel. The court concluded that SSA had satisfied its burden of showing that no genuine issue of material fact existed, by demonstrating that McDonald’s own deposition clearly showed his exposure occurred only while on ships located upon the navigable waters of the United States. There was no other evidence on record to contradict McDonald's deposition testimony. The court found that plaintiffs' argument did not create a "genuine" issue because the evidence was not such that a reasonable jury could return a verdict for them. The court held that a reasonable jury could not return a verdict for plaintiffs based on the speculation that after McDonald was exposed to asbestos on the ship, he carried asbestos dust with him off the ship and supposedly further exposed himself to asbestos on the land. Under the circumstances, the court found that McDonald’s exposure occurred solely upon the navigable waters. SSA’s motion for summary judgment based on LHWCA immunity was granted. (USDC EDPA, April 4, 2011) 2011 U.S. Dist. LEXIS 58289
VESSEL UNDER CONSTRUCTION IS STILL NOT A “VESSEL” UNDER THE LHWCA
MILES V. VT HALTER MARINE, INC.
Andre Magee, Jr., who was employed as a rigger by Corrosion Control Specialists, fell while working on a Maritrans Operating Company, LP barge under construction and died as a result of the injuries he sustained. At the time of the incident, Magee, the barge was under construction in a shipyard owned and operated by VT Halter Marine, Inc., where the barge was moored in navigable waters. Following Magee’s death, his survivors, alleged illegitimate minor children and Magee's father, filed suit asserting admiralty and maritime jurisdiction exists as the case was brought pursuant to §905(b) of the LHWCA. The defendants moved to dismiss the complaint, arguing that the barge on which Magee was working was not a vessel for purposes of admiralty jurisdiction; therefore, jurisdiction under admiralty law, general maritime law, or 905(b) could not be established. Additionally, the defendants maintained that plaintiffs' action did not lie in maritime tort because Magee was engaged in "ship construction" work at the time the incident, which is not a traditional maritime activity sufficient to give rise to a maritime tort. Plaintiffs argued that the requirement that an object must be placed in navigation for its intended purpose to be considered a vessel is applicable under the Jones Act only, contending that the key inquiry was whether the injury occurred on navigable waters, which undisputedly happened to Magee. here. The court agreed with the position of the defendants that, because the barge on which Magee was working at the time of the incident was not yet completed, the structure was not a vessel for purposes of admiralty jurisdiction. The court found that the Stewart decision did not effectively overrule longstanding precedent holding that a watercraft under construction is not a "vessel in navigation" for purposes of the Jones Act. Additionally, prior Fifth Circuit jurisprudence had similarly found that an unfinished watercraft is not a vessel for purposes of admiralty jurisdiction and therefore cannot be a vessel for purposes of a §905(b) claim under the LHWCA. The court also rejected plaintiffs’ contention that the ship was "built" at the time of the incident, holding the evidence indicated otherwise. Since the structure was not a vessel for purposes of admiralty jurisdiction, the court held that plaintiffs' claims that arise under admiralty law, general maritime law, and §905(b) of the LHWCA must be dismissed. Defendants also sought dismissal of Magee’s father’s claims of mental anguish allegedly suffered as a result of witnessing the loss of his son, urging that the general maritime law does not allow for bystander damages or independent mental anguish claims in wrongful death actions. The court found that, although Magee’s father may have been "near" the scene of the accident, it was undisputed that he did not contemporaneously witness his son's fall. The court held that, because Magee’s father did not actually witness the accident causing his son's injuries, he was not a bystander pursuant to the criteria provided by Mississippi jurisprudence and therefore defendants' motion was granted. (USDC EDLA, May 31, 2011) 2011 U.S. Dist. LEXIS 57815
COURT HOLDS THAT STEWART DID NOT CHANGE FIELDS WORK PLATFORM RULE
RICHARDSON V. KERR MCGEE OIL & GAS CORPORATION, ET AL.
Riley Richardson allegedly fell while working on a buoyant petroleum extraction platform located in the Gulf of Mexico, which was owned and operated by Kerr McGee Oil & Gas Corporation. The platform is moored to the sea floor through a series of cables and pilings that extend 230 feet into the sea floor. The platform has only been moved twice in the past 10 years, by tightening and slacking its connecting cables and is not expected to be moved from its present location for 17 years. At the time, Richardson was working at the time for Charles Holston, an independent contractor hired by Kerr McGee to perform maintenance services. After Richardson filed a Jones Act suit, Kerr McGee and Charles Holston both moved for summary judgment, arguing that the platform is not a "vessel" for purposes of the Jones Act and therefore Richardson’s Jones Act claims must be dismissed. Furthermore, Kerr McGee argued that it was not liable for Richardson’s injuries under Texas law, rather, the Outer Continental Shelf Lands Act (OCSLA) applied to Richardson’s case. The court noted that it was convinced that the platform at issue was not a “vessel” but a work platform, notwithstanding Stewart. The platform, like the spar in Fields, had been, in effect, permanently moored to the ocean floor, and therefore under Stewart it is not capable of maritime transport in any meaningful way. Consequently, since the platform was permanently moored to the ocean floor, its incidental movement on its cables was insufficient to make it a vessel and therefore Richardson’s Jones Act claims must be dismissed. Additionally, the court concluded that Richardson met the OCSLA test and was therefore covered under that extension of the LHWCA. Since Richardson had not asserted a LHWCA claim against his employer, Charles Holston, the court held that Charles Holston was entitled to summary judgment. The court also found that Charles Holston was an independent contractor and that Kerr McGee did not actually exercise control over Charles Holston and was therefore not liable for Richardson’s claims under Texas law. Accordingly, the court granted summary judgment in favor of both defendants. (USDC EDLA, June 28, 2011) 2011 U.S. Dist. LEXIS 68641
WELL-PLEADED COMPLAINT RULE DOES NOT DEFEAT FEDERAL JURISDICTION
STEVENS V. ENERGY XXI GOM, LLC, ET AL
Preston Stevens filed suit in state court against Energy XXI GOM, LLC and Energy XXI (Bermuda) Limited, alleging that he was employed by RBG USA Inc. and working on an offshore facility operated by the defendants. Stevens further that during the performance of his job duties he was required to travel by crew boat from the defendants' main facility to a satellite location, and transfer from the boat in a personnel basket that was lifted and moved horizontally by a crane set on the satellite facility. At the time of his transfer off the crew boat, Stevens claimed the sea and weather were rough, which caused the boat to pitch and roll in relation to the facility with the crane. As a result, while Stevens was on the ring of the personnel basket waiting to be lifted off the boat, the basket dragged across the deck into the railing causing Stevens to be injured. Defendants removed the case to federal court alleging diversity of citizenship and a federal question under the Outer Continental Shelf Lands Act (OCSLA). Stevens moved to remand his suit to state court, asserting there was no diversity and that his suit was brought under general maritime law, not under OCSLA. Finally, Stevens argued that the petition did not allege that the accident occurred on or adjacent to any fixed platform located on the outer continental shelf and the defendants' notice of removal and affidavit fail to show that the location of the accident was on the outer continental shelf. The court found that the evidence that both the primary and satellite facilities, to which Stevens was assigned, were located on the OCS. The only reasonable inference that the court could draw from these uncontested facts was that the case brought by Stevens was related to an operation conducted on the OCS which involves the exploration for and development of minerals, and that there would have been no alleged accident causing the plaintiff's injury "but for" the defendants' conducting an operation on the OCS. Based on the undisputed facts, the court held that the defendants had satisfied their burden of establishing original subject matter jurisdiction under federal law and that neither the well-pleaded complaint rule nor Stevens’ allegations of a claim under maritime law, bar or limit the defendants' right to remove the case to federal court. Stevens motion to remand was denied. (USDC MDLA, May 18, 2011) 2011 U.S. Dist. LEXIS 66894
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest #231 & Digest #232
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #231 & #232. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005 (time for a new one, Yelena!). However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
TRAVEL REIMBURSEMENT RATE INCREASED
IRS INCREASES MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/11
On June 23, 2011, the Internal Revenue Service released the optional standard mileage rates to use for the second half of 2011 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning July1, 2011, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:
• 55.5 cents per mile for business miles driven;
• 23.5 cents per mile driven for medical or moving purposes; and
• 14 cents per mile driven in service to a charitable organization.
The charitable standard mileage rate is set by law. The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile.
Updater Note: You can check out the revised IRS mileage rates here. The Office of Government-wide Policy, GSA also sets mileage reimbursement rate for use of a privately owned automobile (POA) on official travel. GSA published their 2011 rates on December 21, 2010 and you may review the bulletin here. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS). Which rate should you be using to reimburse travel under the Longshore Act? That is a question you may want to consult with your attorney on.
And on the Admiralty front . . .
A NEW MAXIM: “CAELUM TERMINUS EST – THE SKY’S THE LIMIT.”
CSX TRANSPORTATION, INC. V. MCBRIDE
Supreme Court Opinion
Robert McBride worked as a locomotive engineer for CSX Transportation, Inc. McBride allegedly injured his hand using an independent brake to switch rail cars. The district court rejected CSX’s requested instruction that would have required McBride to show that CSX’s negligence was a proximate cause of the alleged injury. Instead, the district court employed the Seventh Circuit's pattern instruction for FELA cases, which read: "Defendant 'caused or contributed to' Plaintiff's injury if Defendant's negligence played a part--no matter how small--in bringing about the injury. The mere fact that an injury occurred does not necessarily mean that the injury was caused by negligence." The jury returned a verdict for McBride. On appeal, CSX renewed its objection to the failure to instruct on proximate cause, now defining the phrase to require a "direct relation between the injury asserted and the injurious conduct alleged." The Seventh Circuit, however, approved the District Court's instruction and affirmed its judgment for McBride. CSX sought review of the appellate court decision and this FELA case was heard on writ of certiorari to the United States Court of Appeals for the Seventh Circuit. The Supreme Court held that, pursuant to 45 U.S.C. §51, FELA rendered railroads liable for employees' injuries or deaths resulting in whole or in part from carrier negligence. FELA did not incorporate proximate cause standards developed in non-statutory common-law tort actions. Under FELA, injury was proximately caused by the railroad's negligence if that negligence played any part in causing the injury. Although the court observed that reasonable forseeability of harm is an essential ingredient of FELA negligence, it held that if negligence is proved and is shown to have played any part, even the slightest, in producing the injury, then the carrier is answerable in damages even if the extent of the injury or the manner in which it occurred was not probable or foreseeable. In the 5 to 4 decision, affirming the Seventh Circuit’s decision, the Supreme Court held that, in accord with FELA's text and purpose, Rogers, and the uniform view of the federal appellate courts, that FELA does not incorporate stock "proximate cause" standards developed in non-statutory common-law tort actions. The majority decision followed years of jurisprudence that holds that if negligence of the employer played a part – no matter how small – in bringing about the injury, this is sufficient for liability in FELA [and Jones Act] claims. The majority opinion of Justice Ginsburg, was joined by Justices Breyer, Sotomayor and Kagan, with Justice Thomas joining in part. Chief Justice Roberts filed a strongly worded dissenting opinion, joined by Justices Scalia, Kennedy and Alito, that was highly critical of what the Chief Justice described as a “but for” test of liability that results in what Chief Justice Roberts termed is a new maxim: “Caelum terminus est – the sky’s the limit.” (U.S. Sup. Ct., June 23, 2011) 2011 U.S. LEXIS 4795
Updater Note: While this is not a maritime case, it has great relevance to the US maritime industry, because the Jones Act incorporates the FELA for purposes of recovery for death or personal injury of seamen. Justice Thomas, once again, played the villain, siding with the majority, rather than his conservative colleagues.
REASONABLE JURY COULD FIND PRODUCT TO BE UNREASONABLY DANGEROUS
BROCHTRUP V. MERCURY MARINE, ET AL.
Circuit Court Opinion
Jacob Brochtrup was allegedly injured after his leg made contact with the spinning propeller of a boat engine. He sued the manufacturers of the engine, Mercury Marine and the boat builder, Sea Ray, alleging that the engine's propeller was defectively designed. Mercury Marine and SeaRay moved for judgment as a matter of law. The district court denied their motions and Brochtrup ultimately obtained a favorable jury verdict. Mercury appealed the decision denying its motion for judgment as a matter of law and the jury instruction on a Texas design defect claim, arguing that Brochtrup did not present sufficient evidence that the engine was defectively designed in a way that was unreasonably dangerous, which was the first element of a design defect claim. The appellate court disagreed finding that, based upon the record evidence, a reasonable jury could find the engine to be unreasonably dangerous. The appellate court found Mercury’s arguments to the contrary erroneous in two respects. First, it repeatedly asks the appellate court to weigh the evidence presented, even though the proper inquiry was whether sufficient evidence existed to support the passenger's claim when the evidence was viewed in the light most favorable to him. Second, it sought to require Brochtrup to have presented what the manufacturer believed to be the best evidence of all five risk-utility factors. Mercury argued unsuccessfully that Brochtrup put forth insufficient evidence on a safer alternative design, which was the second element of a design defect claim. The instruction given was not incapable of properly guiding the jury. Even assuming that the instruction was erroneous, the appellate court found that the challenged instruction could not have affected the outcome of the case. The judgment of the district court was affirmed in all respects. (5th Cir, May 27, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 10900
SLEEPING, EATING & MEETING ON A VESSEL DOESN’T MAKE YOU A SEAMAN
TEAVER V. SEATRAX OF LOUISIANA, INC.
Circuit Court Opinion
Seatrax of Louisiana, Inc. Is in the business of providing cranes for offshore drilling platforms. Seatrax hired Robert Teaver as a crane operator/installer, and Teaver and several other Seatrax employees were charged with disassembling a portable crane on an offshore platform owned by Mariner Energy, Inc., which was located approximately 90 miles off the coast of Louisiana. About thirty minutes into the project, less than twenty-four hours into his employment with Seatrax, Teaver fell approximately nineteen feet from his position on a gang box. The injuries he sustained in the fall left him permanently paralyzed. Teaver filed a petition in state court, alleging a Jones Act claim against Seatrax and a claim of negligence under Louisiana state law against Mariner. Mariner removed the suit to federal court, claiming federal jurisdiction under the Outer Continental Shelf Lands Act, and arguing that the Jones Act claim did not prevent removal because Teaver did not qualify as a seaman under the Jones Act. Teaver filed a motion to remand, which the district court denied after concluding that Teaver could not possibly establish his status as a seaman. The district court then granted Seatrax’s motion for summary judgment on the same ground, dismissing Seatrax from the suit. The district court granted Teaver’s request for a Rule 54(b) judgment and stayed the litigation so Teaver could appeal the district court’s rulings regarding Seatrax. Teaver perfected his appeal, arguing that the district court erred in refusing to remand his action to state court and in granting summary judgment to Seatrax. The appellate court noted that the pertinent issue on appeal was whether Teaver could possibly establish that he was a Jones Act seaman. The district court found that Teaver would be unable to establish either element of the Chandris test for seaman status under the Jones Act. The appellate court agreed, holding that the outcome was governed by its decision in Hufnagel v. Omega Service Industries, Inc., 182 F.3d 340 (5th Cir. 1999). Despite this court’s pronouncement in Hufnagel that workers aboard vessels that transport them to their work stations on offshore drilling platforms are not seaman, even when the transportation vessel also serves as a “floating hotel” during the work assignment, Teaver argued that he was a seaman because he was working in service of the crew boat that transported him to the platform. throughout his employment. The appellate court rejected this argument, holding that the undisputed facts revealed that crew boat performed the same function as any supply vessel—it provided transportation and lodging services for the Seatrax employees and their equipment, and the Seatrax employees were merely passengers on the vessel. Therefore, Teaver, like Hufnagel, could not demonstrate that he was a Jones Act seaman. Although he stored equipment, attended meetings, slept, and ate aboard the vessel, his contemplated work assignment was almost entirely on the platform. The judgment of the district court was affirmed. (5th Cir, June 23, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 13020
ONLY IN THE 9TH CIRCUS
TOBAR, ET AL. V. UNITED STATES OF AMERICA
Circuit Court Opinion
Plaintiffs in this case are Ecuadorian crew members of a fishing boat. The U.S. Coast Guard had stopped and boarded their boat on suspicion of smuggling drugs. Tests performed on the vessel yielded suspicious but inconclusive results and, with the consent of the Ecuadorian government, the Coast Guard towed the boat to Ecuador. Further tests conducted by the Ecuadorian government uncovered no contraband, and no charges were filed against Plaintiffs. The plaintiffs sued the United States for unlawful imprisonment and other claims arising from the search and seizure. The United States filed a motion to dismiss under FRCP 12(b)(1) for lack of subject matter jurisdiction on the ground that the United States has not waived sovereign immunity. The district court agreed and dismissed this action. The crew members appealed. The appellate court held that the Military Claims Act, 10 U.S.C. §§2731-2739, the Alien Tort Statute, 28 U.S.C. §1350, and certain treaties did not waive sovereign immunity. The crew members could not rely on the waivers of sovereign immunity under the Suits in Admiralty Act, 46 U.S.C. §§30901-30918, or the Federal Tort Claims Act; their claims fell within the scope of the Public Vessels Act (PVA), 46 U.S.C. §§31101-31113, and therefore had to satisfy the PVA's reciprocity requirement. The court concluded the PVA applied because the claims came within federal admiralty jurisdiction and the alleged damages were caused by a public vessel. The district court correctly found that the evidence was insufficient to establish that the Ecuadorian government would waive sovereign immunity in similar circumstances, but the district court apparently failed to recognize that it had discretion to inquire further into Ecuadorian law. The district court's judgment was vacated with respect to the determination that reciprocity did not exist; the judgment was otherwise affirmed. The matter was remanded. (9th Cir, April 21, 2011) 639 F.3d 1191; 2011 U.S. App. LEXIS 8173
DEFECTIVE DESIGN CLAIM IN MARITIME PRODUCT LIABILITY CASE
OSWALT, ET AL. V. RESOLUTE INDUSTRIES, INC.
Circuit Court Opinion
Resolute Industries’ technician, while attempting to fix the heater on Curtis Oswalt’s boat, flipped a circuit breaker that Oswalt told him controlled power to the heater, removed the burner unit, and placed the unit on a shelf. The boat subsequently caught fire. Resolute brought a third-party action against the heater's manufacturer, Webasto, alleging the fire was caused by the heater's inadequate warnings and instructions and its defective design. After a two-day bench trial, the court held that Resolute had breached the implied warranty when its technician moved the burner unit to a position where it was certain to start a fire if it turned on without first ensuring the heater's power was disconnected. The court awarded more than $200,000 in damages to Oswalt, including $4110 for hotel expenses Oswalt incurred while the boat was being repaired and surveyor fees. The district court granted summary judgment in favor of Webasto. Resolute appealed the district court’s adverse summary judgment on its products liability claims, the adverse liability verdict on Oswalt's implied warranty claim and the damages awarded for hotel expenses and surveyor's fees. The court of appeals held that summary judgment was properly awarded to Webasto on Resolute’s failure-to-warn claim because the heater's repair manual included an instruction for removing the burner unit that provided a means for disconnection of the power. However, the appellate court held that summary judgment was inappropriate on Resolute’s design defect claim, which alleged that the heater should have been equipped with an automatic current shutoff; compliance with applicable safety standards did not insulate the manufacturer from the claim. There was sufficient causation evidence to support the finding that Resolute was liable for breach of the warranty of workmanlike performance. Oswalt was properly awarded damages for hotel charges he incurred while the boat was being repaired; the owner did not seek to recover for lost recreational use, but for deprivation of use of the boat for lodging while he was working. The grant of summary judgment to Webasto on Resolute’s design defect claim was vacated and remanded. The judgment was otherwise affirmed. (9th Cir, June 6, 2011) 2011 U.S. App. LEXIS 12114
Updater Note: An important recent development in this case is the holding that the Restatement (Third) of Torts §2 replaces the Restatement (Second) of Torts §402A in maritime law.
SANCTION IMPOSED FOR SPURIOUS MOTION
STEPSKI V. THE M/V NORASIA ALYA, ET AL.
Circuit Court Opinion
Michael Stepski, Geal Roderick, and Benjamin Schober sued for damages resulting from the maritime collision of their fishing vessel and a container ship alleged to be owned and managed by the named defendants. The trial court rendered a judgment in favor of defendants, following a jury finding in favor of the container ship. Plaintiffs appealed charging the trial court with error in (1) denying their motion for a new trial on the ground that the verdict was against the weight of the evidence, (2) instructing the jury and providing it with a verdict form, (3) granting partial summary judgment on plaintiffs' punitive damages claims, and (4) engaging in prejudicial conduct at trial. The appellate court held that it had no jurisdiction to review plaintiffs' challenge to the denial of their motion for a new trial on the ground that the jury verdict was against the weight of the evidence. The district court incorporated the Pennsylvania rule, as well as the allegedly violated International Regulations for Preventing Collisions at Sea (COLREGS), into its instructions on negligence. In light of these instructions, as well as counsel's closing arguments, a reasonable jury would have understood the verdict form inquiry as to proof of negligence in the manner claimed by plaintiffs to include all theories of liability. In sum, there was no error, let alone plain error, in the instructions or verdict form. The appellate court further held the plaintiffs' complaint that they were denied due process by the biased conduct of the trial judge was meritless. Although plaintiffs faulted the trial court for admonishing their counsel and witnesses, no new trial was warranted because the record did not indicate that the judge expressed his opinion on an ultimate issue of fact in front of the jury or argued for one of the parties. The judgment of the district court was affirmed. The appellate court also ruled that plaintiffs' multiplication of litigation expenses through a motion so totally lacking in support in law or evidence warranted a sanction in the amount of defendants' reasonable attorneys' fees and costs incurred in defense of plaintiffs’ motion to stay the appeal. (2nd Cir, June 23, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 12775
DRUNK TRIES TO CIRCUMVENT DRAM SHOP LIABILITY LAW BY GOING MARITIME
BREAUX V. ST. CHARLES GAMING COMPANY, INC.
Appellate Court Opinion
Jennifer Ann Breaux became intoxicated at a St. Charles Gaming Co. casino and she fell from a stairway onto the ground below, suffering injuries. Her blood alcohol content was measured at 0.33%. Breaux sued St. Charles Gaming and its insurer under general maritime law for damages resulting from the on its floating casino permanently moored to a dock. In an effort to circumvent Louisiana's anti-dram shop liability law, Breaux alleged that her cause of action was controlled by federal maritime law which contains no similar provision barring her claims The trial court granted summary judgment in Breaux's favor on the issue of maritime jurisdiction and denied St. Charles Gaming's cross motion for summary judgment on the same issue. St. Charles Gaming appealed the summary judgment and filed a writ application seeking review of the denial of summary judgment in its favor. The appellate court took judicial notice of the Fifth Circuit’s decision in De La Rosa v. St. Charles Gaming Co., which held that the same gambling boat was not a vessel for purposes of admiralty jurisdiction. Although Breaux disputed the correctness of the De La Rosa decision, surmising the court had incomplete information regarding the vessel and describing the case as a radical departure from U.S. Supreme Court jurisprudence, the appellate court found nothing in the De La Rosa opinion indicating the court had incomplete or inaccurate facts regarding vessel, and concluded the jurisprudence determinative of this case to be squarely in line with the position advocated by St. Charles Gaming. Notwithstanding a vigorous dissenting opinion by Judge Saunders, the appellate court concluded that the trial court erred in finding maritime jurisdiction in the case. Accordingly, the court reversed summary judgment granted in Breaux's favor and granted the writ application filed by St. Charles Gaming seeking reversal of the denial of summary judgment on the same issue. Summary judgment was granted in favor of St. Charles Gaming, and Breaux's claims asserted under the general maritime law were dismissed. (La. App. 3rd Cir, June 22, 2011) 2011 La. App. LEXIS 800
CONDITION DID NOT MANIFEST ITSELF IN THE SERVICE OF THE SHIP
NORFOLK DREDGING COMPANY V. PACHECO
Jeffery Pacheco, a deckhand employed by Norfolk Dredging Company, allegedly injured his left index finger when he put it in a pinch point aboard Norfolk’s dredge. Pacheco received treatment from four different physicians and complained only of his finger injury. Over two months later, Pacheco first reported left shoulder pain to his treating physician and was later diagnosed – via MRI - with a full thickness tear of his left rotator cuff. Norfolk filed suit requesting declaratory judgment that Pacheco’s left shoulder injury was not related to his work injury incident and that Norfolk had no obligation to pay maintenance and cure to Pacheco for his left shoulder injury. At the bench trial, Norfolk presented testimony from Pacheco’s treating physicians, including an orthopedist who performed extensive range of motion testing on Pacheco’s upper extremities, including his left shoulder, six weeks post-incident, and testified that Pacheco would have complained of pain upon examination if he had sustained a full thickness tear of his rotator cuff during the incident. Pacheco’s case relied mainly on his pre-employment physical which was negative for any shoulder problems and declared him fit-for-duty. Norfolk presented case law demonstrating that the seaman has the burden of proving that his illness or injury occurred and manifested itself while he was in the employ of the vessel owner and, accordingly, a seaman whose illness or injury manifests after conclusion of service to the vessel is generally not entitled to recover for maintenance and cure absent convincing proof of causal connection. The court concluded that the preponderance of the evidence demonstrated that Pacheco's left shoulder pain and full thickness tear of his left rotator cuff were not related to his reported work-related accident with Norfolk. Accordingly, the court held that Norfolk had no obligation to pay maintenance and cure to Pacheco for his left shoulder pain and full thickness tear of his left rotator cuff. Norfolk’s request for Declaratory Judgment absolving it of any liability to pay maintenance and cure to Pacheco for his left shoulder condition was granted. (Va. Cir Ct., May 24, 2011) At Law No.CLI0-780
Updater Note: Thanks to Shawn Voyles, of Crenshaw, Ware & Martin in Norfolk, VA, for sharing this delightful case with me; and congratulations on the outcome here. I especially appreciate readers sending in these state cases that I rarely get on Lexis. I’m sure many of my readers have had the experience of a minor injury to one anatomical area blossoming into other areas of the body, all discovered well after the fact - i.e. alleged excruciating pain masking other areas that were allegedly injured. It nice to see that some jurists don’t buy into this BS.
LET THE JURY DECIDE. I’M JUST A JUDGE.
GREEN V. FLORIDA MARINE TRANSPORTERS, INC.
Marc Green filed a Jones Act complaint against Florida Marine Transporters, Inc. (FMT), alleging that he sustained injuries to his left ring finger while working as a tankerman aboard FMT’s vessel as FMT’s employee. FMT moved for partial summary judgment as a matter of law on Green's claim for maintenance and cure, arguing that it did not employ Green, and that Green forfeited any claim that he might have had to maintenance and cure by leaving his position with FMT and by willfully refusing medical treatment. FMT also argued that damages attendant to the refusal to pay maintenance and cure after Green left his job are not warranted. The court began its “analysis” by observing that the medical evidence suggested that Green had not reached MMI when he left FMT. Therefore, the court concluded, at the very least, there was an issue of fact as to whether Green was or is at MMI. The court rejected FMT's contention that Green forfeited his right to maintenance and cure by quitting his job, holding that the forfeiture would only apply to Green’s maintenance, but not his cure. While the court acknowledged that Green was correct in that FMT owed maintenance until he reached MMI, the court also pointed out that Green would not be entitled to maintenance (and the potentially attendant damages for FMT's failure to pay it) if he simply decided he'd prefer to stay home instead of working the light duty position that FMT provided him. The court left it to the jury to decide whether Green's decision to leave the position at FMT was a failure to mitigate his damages that caused him to forfeit his maintenance payments. FMT also argued that Green forfeited his cure payments by willfully rejecting medical aid. Again, the court declined to address the issue, leaving it to the jury to determine whether Green's decision to forego additional medical treatment deprived him of further cure payments. Finally, FMT argues that it was not Green's employer, meaning it owed no maintenance and cure to Green, because he was really employed by PBC Management, Inc., not FMT. The court held that Green would be allowed to amend his complaint to formally join PBC as a party. FMT’s motion for partial summary judgment was denied. (USDC EDLA, June 8, 2011) 2011 U.S. Dist. LEXIS 60933
Updater Note: It does not appear as though the shipowner raised the desertion defense to maintenance and cure. Desertion is considered willful misconduct and is a bar to both maintenance and cure. See Maritime Overseas Corporation v. Ebner, 697 F.2d 701; 1987 AMC 910
COURT ALLOWS CASE TO PROCEED ON WEAK AND UNFOUNDED ALLEGATIONS
JORDAN V. JEWEL MARINE, INC.
Jack Jordan was employed by Jewel Marine, Inc. as a Captain and alleged his employment with was wrongfully terminated after he reported that the lead captain of the vessel he was assigned to was operating the vessel under the influence of alcohol and marijuana. The captain of the vessel was subsequently given a drug test and passed the test, without evidence of illegal substances. Plaintiff does not dispute that series of events. Jordan brought claims for wrongful discharge allegedly in violation of Louisiana Revised Statute 23:967 ("the Louisiana Whistleblower Act") and the Jones Act exception to the "employment-at-will doctrine. Jewel move for summary judgment, arguing that Jordan was an at-will employee and was terminated for ongoing conflicts with other fellow employees and for giving his crew coordinator an ultimatum to either fire the rest of the crew or fire him. Jordan opposed the motion, maintaining that he watched the captain smoking marijuana aboard the vessel and that the captain had invited Jordan to "smoke a joint with him." Jordan also cited the testimony of another employee who stated that the captain told him he was able to stay awake "from port to port because he had a plate of cocaine. Jordan further maintained that his termination violated public policy, namely, protecting the safety not only of seamen, but the public as well. The court initially noted that insuring the safety of both seamen and the general public, potentially by preventing captains under the influence of drugs and alcohol from manning vessel, is certainly a matter of public policy. The court further concluded that, notwithstanding the captain’s negative drug screens, Jordan had raised extremely weak issues of fact that precluded summary judgment. Additionally, there existed genuine issues of fact surrounding Jordan’s claims of an exception to the employment-at-will doctrine under the Jones Act, specifically with regard to the public policy implications albeit with a weak factual foundation. Jewel’s motion for summary judgment was denied. (USDC EDLA, May 26, 2011) 2011 U.S. Dist. LEXIS 59165
Updater Note: It is because of decisions like this that the judicial system in this country is going to hell in a hand basket. Notwithstanding a long history of negative substance screenings, the court allows an obviously disgruntled employee to impugn the reputation of a Coast Guard licensed captain and make the vessel owner incur additional legal expense, based on innuendo, hearsay and an admittedly weak foundation. Shame on you Ivan!
NEW TREND IN THE EDLA - LET’S RAISE THOSE MAINTENANCE RATES
OWENS V. ABDON CALLAIS OFFSHORE, LLC
Eric Vincent Owens alleged that he injured his lumbar spine and right shoulder while working aboard Abdon Callais Offshore LLC’s vessel. Notwithstanding his alleged injuries, Owens remained in Abdon Callais's employ on light duty for over seven months. During that time, Owens received a wage of $200.00 per day for every day that he remained at Abdon Callais's bunkhouse facility, where he received food and lodging. When he did not stay at the bunkhouse, he received only maintenance at a rate of $15.00 per day. Owens eventually left his job, to go home to have surgery, and Abdon Callais continued to pay Owens maintenance at the same rate of $15.00 per day. Owens eventually underwent a microdiscectomy and filed his Jones Act suit against Abdon Callais. Eventually, Abdon Callais filed a motion for partial summary judgment, arguing that Owens was not entitled to maintenance and cure, based on a McCorpen defense. In support of its motion, Abdon Callais submitted Owens’ historical medical records indicating that Owens went to the emergency room with complaints of low back pain and decreased sensation/numbness in the left thigh, prior to being hired, along with Owens’ employment questionnaire, which Owens answered in the negative with respect to a history of "Injured back/back pain." Owens's reciprocated by moving for partial summary judgment that he is entitled to $56.98 per day in maintenance, that the increased maintenance rate be applied retroactively, and that he is entitled to attorneys' fees from Abdon Callai. The employer cross moved for partial summary judgment that the current maintenance rate of $15.00 per day was adequate, that Owens had reached maximum medical cure, and that it does not owe Owens attorneys' fees. Abdon Callais also maintained that Owens' self-serving affidavit was an insufficient basis for summary judgment on the issue of monthly expenses, in the absence of supporting evidence. The court observed that Owens had alleged injury to both his shoulder and back, and found that Abdon Callais had failed to submit evidence to suggest that Owens suffered from any sort of shoulder infirmity before filling out his medical questionnaire. Therefore, the court noted that even if Abdon Callais could establish the McCorpen defense as it related to Owens's back injury, Owens may still be entitled to maintenance and cure for his shoulder injury. The court found that genuine issues of material fact existed as to whether Abdon Callais could assert the McCorpen defense, and denied Abdon Callais's motion for partial summary judgment in that regard. Based on Owens's affidavit, his lease agreement, receipts, and past-due electric notice, the court found that he had satisfied his feather light burden of demonstrating actual costs in the amount of $56.98 per day. Because Owens met his burden of establishing actual expenses in excess of the maintenance rate Abdon Callais was tendering, the court granted Owens' motion for partial summary judgment in part, finding that the appropriate, reasonable rate for maintenance was $40.00 per day applied retroactively. Considering recent maintenance awards in the Circuit, the court found that the requested rate of $56.98 exceeded reasonable expenses. Based on Owens' actual expenses, however, the court further found that the appropriate, reasonable maintenance rate should be $40.00 per day. The court denied Abdon Callais' cross-motion for summary judgment, finding that the current rate of $15.00 per day was inadequate and that genuine issues of material fact remain as to whether Owens is entitled to maintenance and cure, whether Owens had reached maximum medical cure, and whether he was entitled to attorneys' fees. (USDC EDLA, June 14, 2011) 2011 U.S. Dist. LEXIS 66058
Updater Note: Is anyone else noticing the new trend in the Eastern District of Louisiana? Each month it seems there are a couple of new cases criticizing antiquated maintenance rates and raising them significantly. And if the shipowner does not have a collective bargaining agreement that sets the maintenance rate it is paying, it has little to no protection against these court-imposed rates.
WHAT GOOD IS AN EXPEDITED TRIAL IF YOU DON’T HAVE THE PROPER PARTY?
WILKERSON V. LOUPE CONSTRUCTION AND CONSULTING CO., INC.
Daniel Wilkerson claims to have been employed by Loupe Construction & Consulting, Inc., in the capacity of captain, when the vessel he was assigned to capsized and caused him to be tossed around and to fall. As a result, Wilkerson alleges injuries to his back, neck, spine, and mind and sought judgment against Loupe that he is entitled to maintenance and cure, including attorneys' fees and compensatory and punitive damages arising out of the denial of maintenance and cure. Because Loupe had not commenced the payment of maintenance and cure, Wilkerson moved for an expedited trial on his maintenance and cure claim. Wilkerson represented to the court that his primary care physician had recommended an anterior cervical discectomy and fusion, and because he is destitute and is not currently being paid maintenance and cure, Wilkerson maintained that an expedited trial is an appropriate remedy. Loupe argued that the vessel involved was chartered by Loupe from a third party, who provided the vessel's crew. Accordingly, Loupe maintained that the vessel's owner, and not Loupe, should be the party responsible for any maintenance and cure payments. Loupe argued that the motion for expedited trial should be denied to allow for sufficient time before trial for the vessel owner to be added as a party and to make an appearance, and for discovery to be conducted to clarify the Wilkerson’s employment status at the time of the alleged incident. Further, Loupe asserted that an expedited trial was inappropriate because it has only been provided with limited medical records, and sufficient time must be allowed for medical discovery, including an independent medical examination. The court observed that the discovery issues identified by Loupe were not complex and Wilkerson's medical records reflected that he could suffer permanent and disabling injury to his spinal cord without surgery. Under these circumstances, the court found that expedited trial was warranted. Wilkerson's motion for an expedited trial was granted. (USDC EDLA, June 24, 2011) 2011 U.S. Dist. LEXIS 67805
GENERAL MARITIME NEGLIGENCE CLAIM AGAINST VESSEL OWNER ALLOWED
OLIVER V. WEEKS MARINE, INC.
Patrick Oliver, a nominal employee of Atlantic Sounding Company, Inc., was injured in an unwitnessed fall from his bunk bed ladder, while working on a dredge owned and operated by Weeks Marine. Although Weeks Marine owned and operated the vessel, Oliver was employed by Weeks Marine’s wholly owned subsidiary, Atlantic. After Oliver filed suit, asserting an unseaworthiness and general maritime negligence action, Weeks Marine filed a motion for partial summary judgment seeking dismissal of Oliver’s claim for negligence brought under the general maritime law, arguing that seaman do not have a claim for negligence under the general maritime law. The court rejected Weeks Marine’s argument, finding instead that Weeks Marine was not Oliver’s Jones Act employer, but a third-party vessel owner. Therefore, the court held that Oliver may bring a claim for negligence under the general maritime law against Weeks Marine, and Weeks Marine’s motion for partial summary judgment was denied. (USDC EDLA, June 13, 2011) 2011 U.S. Dist. LEXIS 62744
QUESTION OF ACQUIRED LIABILITY DEFEATS SUMMARY JUDGMENT MOTION
POWELL V. PRIDE OFFSHORE, INC., ET AL.
Gregory Powell allegedly sustained injuries to his neck and back when he slipped on grease while climbing on drill casings as part of his work aboard a Pride Offshore vessel. Powell sued Pride Offshore, Pride International, Ensco Offshore Corporation, Hercules Drilling Company, and Aspen Insurance Holdings, Limited, asserting that the defendants had become related to one another through a series of mergers and acquisitions. With respect to Hercules, Powell argued that Hercules is liable as the reported purchaser of the assets and some liabilities of the vessel he was injured on which was formerly Pride Offshore’s vessel. Hercules responded that it was not Powell’s Jones Act employer and that it did not assume vessel liabilities when it acquired the vessel, moving for summary judgment on Powell’s claims. Powell, nevertheless, argued that there are genuine issues of material fact in dispute and that further discovery is required. The court initially found that Powell never stated in his complaint that Hercules was his Jones Act employer. Additionally, Powell failed to offer any evidence or argument that Hercules was his Jones Act employer. Accordingly, the court granted Hercules’ motion for summary judgment on this issue. Although Hercules admitted to acquiring the vessel Powell was injured on, it nevertheless asserted that it did not assume any liabilities that attached prior to the vessel’s acquisition. However, since none of the documents that Hercules submitted in support of its argument were authenticated, the court ruled that there was no competent summary judgment evidence before it with respect to the issue of acquired liability. Accordingly, the court denied Hercules’ motion for summary judgment with respect to Powell’s unseaworthiness claim. (USDC EDLA, June 20, 2011) 2011 U.S. Dist. LEXIS 64980
COURT ANALYZES THE DOCTRINE OF ABSTENTION
ZERANGUE V. MAINTENANCE DREDGING, ET AL
John A. Zerangue filed suit in state court, against Maintenance Dredging, Inc.(MDI), for injuries he allegedly sustained when he tripped over a cable/wire on a maintenance barge adjacent to an MDI dredge. Zerangue filed his claims under the Jones Act and general maritime law. He also alleged Maintenance Dredging's liability under the doctrine of respondeat superior for the negligence of its employees. After MDI filed its answer and the parties exchanged written discover, Zerangue died. A motion was filed with the court to substitute Zerangue’s estate as proper party on May 24, 2010, which substituted his estate as the proper party plaintiff. Zerangue’s estate also filed a complaint against MDI and its insurer in federal court, and adding the dredge captain as a defendant. MDI filed a motion to dismiss the complaint or, alternatively, motion to stay proceedings, asserting that the federal court case should be dismissed or stayed pursuant to the doctrine of abstention, because Zerangue's nearly identical suit had been pending in state court for over two years. Zerangue opposed MDI’s motion. The court began its analysis by observing that the doctrine of abstention, under which a court may decline to exercise or postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a district court to adjudicate a controversy properly before it. The court reviewed the Colorado River factors laid out by the U.S. Supreme Court with respect to the doctrine of abstention and concluded that three of the six factors weighed heavily in favor of abstention, while two factors weigh against abstention and one of the factors was neutral. After balancing all of the Colorado River factors and weighing the competing interests, the court held that the federal court proceeding should be stayed and administratively closed Zerangue’s case, without prejudice to it being reopened, after resolution of the state court action, if all issues have not been resolved, or otherwise in the interest of justice. (USDC WDLA, May 2, 2011) 2011 U.S. Dist. LEXIS 64962
SLEEPING, EATING & MEETING ON A VESSEL DOESN’T MAKE YOU A SEAMAN
WILLIAMS V. DANOS AND CUROLE MARINE CONTRACTORS, LLC, ET AL.
Danos & Curole (D&C) hired Michael Williams to perform sandblasting and painting services on petroleum platforms owned by Energy Resource Technology GOM, Inc.(ERT), pursuant to a Master Services Contract (MSC), which specified that D&C was an independent contractor of ERT. To transport and house Williams, other members of D&C’s blasting/painting crew, and their equipment, ERT provided a supply vessel owned by a third-party contractor. The D&C workers slept, ate, and used the bathroom on the vessel, and would transfer to the platform each day to work 12-hour shifts. After about a week into his second hitch, Williams allegedly suffered an injury to his left shoulder as he and other members of the crew retrieved a D&C "pick board" from the platform. Williams brought suit action against D&C and ERT, asserting claims under the Jones Act and the general maritime law. D&C moved for summary judgment on Williams’ status as a seaman. The court found that D&C had established, as a matter of law that Williams lacked a substantial connection to the vessel in terms of duration. D&C submitted the affidavit of Williams' supervisor, who testified that at no time was Williams ever assigned to a vessel except on a temporary and transient basis that formed far less than 30% of his total work time on the ERT job. Williams offered nothing to refute this evidence. Indeed, Williams' attorney conceded at oral argument that there was no evidence in the record to suggest that Williams spent at least 30 percent of his work time aboard the supply vessel. And although Williams spent time on the vessel eating and sleeping, that time does not figure into the analysis, because it was not spent "in the service of a vessel in navigation. Consequently, the court found that Williams lacked a substantial connection to the vessel and that D&C was entitled to summary judgment on Williams' status as a seaman. Williams argued that a jury could find ERT's involvement in the decision to work on the day of his incident rendered ERT liable. However, the court found, as a matter of law, that ERT did not retain operational control over D&C’s activities, as D&C could accept or reject ERT's suggestions or recommendations as it saw fit. As such, Williams could not show that an exception to the general rule that a principal is not liable for the negligence of its independent contractor applied. Summary judgment was granted in favor of both D&C and ERT, and Williams’ claims against both defendants were dismissed with prejudice. (USDC EDLA, June 23, 2011) 2011 U.S. Dist. LEXIS 66860
CLAIMANT SUES SLEAZY ATTORNEY WHO WANTED HIM TO PERJURE HIMSELF
MITCHELL V. SCHOEN, ET AL.
John G. Mitchell retained Dennis T. Schoen to represent him in a personal injury case against his employer, Central Marine Logistics, to seek monetary damages for injuries he allegedly sustained in a work-related accident that occurred on August 31, 2003. On September 1, 2006, three years and one day after Mitchell's injury, Schoen filed a personal injury action on Mitchell's behalf in Illinois state court. Mitchell alleged common law tort claims and claims arising under the Jones Act. The statute of limitations in Illinois for common law torts and actions under the Jones Act are two and three years, respectively. Schoen allegedly attempted to coerce Mitchell into signing a perjured affidavit concerning the date of his alleged accident to preserve the underlying action. Mitchell refuse to signed the affidavit and Schoen withdrew as counsel for Mitchell. The underlying action was dismissed for want of prosecution. A later re-filed a complaint was dismissed with prejudice on timeliness grounds. Mitchell then filed a three-count complaint against Dennis T. Schoen, individually, and Schoen's law firm, Schoen Browne, P.C, alleging claims for negligent legal malpractice, breach of contract, and breach of fiduciary duty. Schoen moved to dismiss Mitchell’s causes of action, arguing that Mitchell's malpractice claim is barred because at the time Schoen withdrew as Mitchell's counsel, the underlying action was still viable. Schoen also moved to dismiss Mitchell's breach of contract and breach of fiduciary duty claims, arguing that they are duplicative of the legal malpractice claim. The court observed that it was obligated to take plaintiff's factual allegations as true. Since Mitchell claimed that his underlying action was not viable when Schoen withdrew as counsel, the court refused to dismiss the malpractice cause of action. The court noted that Mitchell alleged the same operative facts and injury in both his legal malpractice and his breach of contract claims. If a contract and tort claim stem from the same common nucleus of operative facts and result in the same injury, the contract claim should be dismissed as duplicative. Therefore, the court granted the motion to dismiss the breach of contract cause of action. However, the court found that a different set of operative facts, at least in part, gave rise to Mitchell's breach of fiduciary duty claim, including an allegation that Schoen attempted to have Mitchell sign a false affidavit. Since the false affidavit allegation was not included in the legal malpractice claim, the court denied the motion to dismiss as to the breach of fiduciary duty claim. (USDC NDIL, May 31, 2011) 2011 U.S. Dist. LEXIS 57874
NO SHOWING OF ALTER-EGO, BUT SUFFICIENT GROUNDS TO PROCEED
POWELL V. PRIDE OFFSHORE, INC., ET AL.
Gregory Powell allegedly sustained injuries to his neck and back when he slipped on grease while climbing on drill casings as part of his work aboard a Pride Offshore, Inc., where he worked as a seaman. Powell claimed that the grease was left by employees of Pride International before he started working, and that Pride International's negligence was the direct and proximate cause of his injuries because Pride International failed to provide a proper ladder in accordance with its safety manual. Powell filed suit to recover damages for medical expenses, pain and suffering, permanent residual disability, emotional stress and strain, loss of wages, and loss of enjoyment of life from Pride Offshore, Pride International, Ensco Offshore Corporation, Hercules Drilling Company, and Aspen Insurance Holdings, Limited. Powell asserts that all the defendants have become related to one another through a series of mergers and acquisitions. With respect to Pride International, Powell asserted that Pride International is liable as the alter ego of Pride Offshore and, alternatively, that Pride International is liable as the owner of the vessel aboard which he was injured. Pride International moved to dismiss Powell’s claim under FRCP 12(b)(6), arguing that Powell had failed to allege sufficient facts to set forth a plausible claim for relief against Pride International. The court initially noted that Powell failed to allege facts in his complaint relating to his theory of liability or address any of the nine factors set forth by the Fifth Circuit to determine whether a parent company is liable for its subsidiary. Due to the lack of factual allegations in the complaint regarding Pride International's liability as an alter-ego of Pride Offshore, the court concluded that Powell had not properly stated a claim in his complaint with respect to this theory of liability. Nevertheless, the court acknowledged that Powell asserted a negligence claim against Pride International, which was separate from and not dependant on a theory of alter-ego liability. The allegations that Pride International owned the vessel upon which Powell was working and that its employees left the grease which caused him to fall, taken as true, gave rise to a plausible claim for relief against Pride International. The motion to dismiss was denied. (USDC EDLA, June 8, 2011) 2011 U.S. Dist. LEXIS 61495
I NEED TO TAILOR MY LIES TO THE STATEMENT I PREVIOUSLY GAVE
HILL V. HORNBECK OFFSHORE SERVICES, LLC
This Jones Act case involved a discovery dispute over whether a statement the plaintiff had given had to be disclosed before or after his deposition. Daniel Dwayne Hill sought an order compelling Hornbeck Offshore Services, LLC, to produce the statement he had given at the time of his two alleged injuries sustained while employed by Hornbeck. Hornbeck opposed the motion, arguing that it would produce the statement, but will do so only after the Hill has submitted to a deposition. Hill contended that he is entitled to a copy of his statement pursuant to FRCP 26(b)(3)© which provides that a witness's own prior statement be provided upon request and without a special showing. Hornbeck attempted to distinguish this case from a prior ruling by the same magistrate by arguing that the accident was unwitnessed and that Hill went back to work as a barge captain for Hornbeck after the accident, and failed to notify Hornbeck or make any allegations as to negligence or unseasworthiness until over two years after the alleged incident. Hornbeck contended that this was good cause for delaying the production of the statement, because if it was forced to provide the statement prior to the deposition, it will be denied the opportunity to rebut Hill’s testimony with his statement. Although the court acknowledged that other courts have found that, in certain circumstances, delaying the production of a witness statement is proper, it was not persuaded that the arguments made by Hornbeck constituted good cause. The court found that Hornbeck had failed to articulate why this circumstance demonstrated that the Hill would not testify truthfully or would testify truthfully only because of the threat that his prior statements might contradict him. The court held that since Hornbeck had not provided suitable good cause basis for delaying the production of the statement, Hill’s motion to compel was granted. (USDC EDLA, June 27, 2011) 2011 U.S. Dist. LEXIS 68439
ADJUSTER’S INTERVIEW NOTES HELD TO BE PROTECTED WORK PRODUCT
HALPIN V. BARNEGAT BAY DREDGING CO., INC.
Vernon Halpin had been employed by Barnegat Bay Dredging Co. (BBDC) since 2005 as a deckhand aboard one of their dredges. Halpin alleged that he was injured while attempting to remove a poly ball from a 500 foot section of plastic discharge pipeline so that it could be attached to the metal discharge pipeline of the dredge. Halpin claimed that a sudden lurch of the pipeline, allegedly caused by a dredge tender boat, caused his right arm to be crushed. Following his discharge from the hospital, Halpin was visited a home by BBDC’s insurance adjuster and was interviewed about his accident and drew an accident diagram with his left hand. After Halpin filed his Jones Act suit against BBDC, he moved to compel BBDC to produce all statements obtained from interviews of employees of BBDC, others with knowledge of Halpin’s accident, and Halpin’s statement and drawing pursuant to FRCP 34, 37, and 45" together with an award of attorneys' fees and costs. BBDC opposed the motion, arguing that because of the severity of Halpin’s injury, BBDC and its insurer anticipated that Halpin would bring a lawsuit under the Jones Act and general maritime law. BBDC objected to Halpin’s discovery demands as calling for material gathered in anticipation of litigation or otherwise subject to privilege. Halpin argued that he would be unable to get equivalent discovery through deposition because memories may have faded and he would be unable to obtain the substantial equivalent of the contemporaneous statements given to BBDC’s adjuster without undergoing substantial hardship. Initially, the court noted That BBDC’s adjuster did not take recorded statements or prepare written statements for anyone to sign. The adjuster merely took some "rough notes" and recorded them on his laptop computer. With respect to the drawings the adjuster collected, he did make his own noted on the drawings and the redacted drawing had already been produced to Halpin, so Halpin motion with respect to the drawings was denied as moot. The court further found that the adjusters notes on the drawings and notes with respect to his interviews of Halpin were insufficient to meet the definition of a contemporaneous recording that recites substantially verbatim the person's oral statement. Therefore, the court's consideration of the adjuster’s notes fell under the rubric of FRCP 26(b)(3)(A). Because Halpin was a seaman and held a statutory right to bring a civil action against BBDC for injuries sustained in the course of employment, BBDC and its insurer reasonably anticipated that Halpin would bring a lawsuit under the Jones Act and general maritime law and were, therefore, work product protected from disclosure. The court further found that Halpin failed to demonstrate that he had substantial need for the materials to prepare his case and cannot, without undue hardship, obtain their substantial equivalent by other means. Halpin’s motion to compel production and request for an award of counsel fees and costs was denied. (USDC DNJ, June 27, 2011) 2011 U.S. Dist. LEXIS 68828
Updater Note: Congratulation to Lisa Reeves, of Reeves McEwing LLP of Philadelphia, PA, on this discovery victory. As we can see from the case above this one, employers do not always win this battle.
ACCIDENT THREE HOURS EARLIER JUST HAPPENED TO SLIP HIS MIND
MILLER V. DIAMOND OFFSHORE MANAGEMENT CO., ET AL.
Jason Miller allegedly sustained injuries to his shoulder and upper extremities in a fall while employed by Diamond Offshore Management Company while aboard its mobile offshore drilling unit. Miller contended that he fell into a hole due to slippery mud on the deck, inadequate lighting during his night shift, and the absence of guardrails that had been removed from the area around the opening. Coincidently, Miller allegedly fell into the exact same hole from which he had, three hours earlier, excavated his supervisor. Conveniently, at his deposition, Miller testified that it "slipped his mind" that the "hole was there." After filing suit against Diamond, Miller moved for partial summary judgment seeking a judgment finding Diamond liable and negligent per se, and prohibiting Diamond from introducing evidence regarding comparative fault. Diamond opposed the motion, arguing that a finding of negligence per se would be unsupported by the facts and thus, the issue of whether Diamond may raise the defense of comparative fault should not at this stage be reached as summary judgment is precluded. Diamond highlighted Miller’s knowledge of the open area where the handrails had been temporarily removed as his supervisor, had actually fallen into the bay area three hours prior. The court found that a genuine issue of fact existed as to the applicability of the Coast Guard regulation cited by Miller in support of his motion, namely 46 CFR §108.217; specifically, whether the hole into which Miller’s supervisor and later Miller fell constituted a "deck opening" within the purview of the regulation. Because this finding precluded summary judgment, the court declined to address further applicability of the negligence per se standard. Miller’s motion for partial summary judgment was denied. (USDC EDLA, June 27, 2011) 2011 U.S. Dist. LEXIS 68435
COURT STRIKES GOVERNING LAW PROVISION AND ORDERS ARBITRATION
SHAW V. CARNIVAL CRUISE LINES
After sustaining numerous alleged injuries while employed by Carnival Cruise Lines, Errol W. Shaw, a citizen of Jamaica, filed his suit against Carnival, alleging claims of Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide prompt and adequate medical care. Carnival moved to dismiss the Complaint and compel arbitration, consistent with the arbitration provision of Shaw’s employment agreement and pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. After reviewing the terms of the employment agreement, the court found that the four jurisdictional prerequisites set forth in Bautista were satisfied. The court’s Thomas analysis found that the choice of law and arbitration provisions in the agreement operated in tandem to bar Shaw's Jones Act claim, thereby prospectively voiding the arbitration provision as against public policy. Nonetheless, the court found that the public policy concerns present in Thomas were obviated by Carnival’s stipulation to apply United States law to Shaw’s Jones Act claim and by the severability provision of the agreement, excising the choice of law provision. Carnival's Motion to Dismiss and Compel Arbitration was granted in part and the parties were directed to arbitrate all Shaw’s claims. However, the court struck the "Governing Law" provision of the agreement, insofar as it applies to Shaw’s Jones Act claim and the arbitrator was ordered to apply U.S. statutory law to this claim only. (USDC SDFL, May 31, 2011) 2011 U.S. Dist. LEXIS 58704
YOU STRESSED ME OUT SO MUCH, I FORGOT I DON’T GO TO SEA ANYMORE
ZEGHIBE V. CONOCOPHILLIPS COMPANY
Kenneth F. Zeghibe asserted a workload stress claim against ConocoPhillips, alleging that because of the stresses of being away from home for extended periods, being denied the leave to which he was entitled and the resulting breakdown in his marriage, he had suffered from extreme emotional distress and seizure-like episodes that have made it impossible for him to work. Zeghibe was employed as a Captain in the marine division involved in tanker construction, which mostly took place at a shipyard, where Zeghibe had a trailer office. Zeghibe brought suit against ConocoPhillips, alleging personal injury claims under the Jones Act, and general maritime claims of unseaworthiness and maintenance and cure. ConocoPhillips moved for summary judgment, arguing that Zeghibe's claims should be dismissed because they were time-barred, the Jones Act does not apply; maritime tort jurisdiction was lacking; and Zeghibe's claims were not supported by medical causation. Zeghibe argued that he qualifies as a seaman because he served as a sea captain in ConocoPhillips' fleet of tankers, and remained a ship's master throughout his extended "special assignment" at the shipyard. However, ConocoPhillips pointed to Zeghibe’s admissions in his deposition that the majority of his work involved construction of the vessels, as opposed to time at sea. The court reviewed the evidence of Zeghibe’s employment and found that, under the "rule of thumb" approved by the Supreme Court in Chandris, because Zeghibe spent almost all of his time assigned to land-based construction tasks, he did not qualify as a Jones Act seaman. The court noted that even if it were to disregard the thirty percent rule of thumb, Zeghibe still would not qualify for seaman status under the Jones Act because he was at home and on leave from work at the time of his alleged breakdown, and by his own admission, was not exposed to the perils of the sea. The court also concluded that Zeghibe's general maritime claims also failed the "location" test since his claimed breakdown occurred while he was at home in Massachusetts, approximately 3,000 miles away from the vessel he claimed to be attached to. To the extent that Zeghibe asserted other torts, which allegedly occurred during vessel construction, the court held these claims also failed for want of jurisdiction. Any purported construction-related injuries did not fulfill the Graybeard location test because they were not caused by a vessel in navigation. The court declined to resolve the time bar or causation issues on summary judgment, as jurisdiction was clearly lacking under either the Jones Act or general maritime law. The court granted ConocoPhillips' Motion for Summary Judgment. Zeghibe’s claims were dismissed with prejudice.
DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN-LET THEM SWIM TO WORK
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.
Jacob Kinchen and Lary Scott Abshire (collectively "plaintiffs"), ironworkers, who were employed by Boh Bros. to work on a bridge under construction, were allegedly injured when the crew boat in which they were traveling from the work site to shore at the end of the day allided with one of the survey towers used in conjunction with the bridge construction. Plaintiffs filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewet Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for their boating accident and the injuries they allegedly sustained. Boh Bros. and the Joint Venture were contractors involved in building the new I-10 Twin Span bridge connecting New Orleans with Slidell, on behalf of the Louisiana Department of Transportation and Development. Boh Bros. built the approaches to the bridge. The Joint Venture built the high rise portion of the bridge. The trial was "bifurcated" on the issues of Abshire's seaman status, plaintiffs' Jones Act claims against Boh Bros., plaintiffs' unseaworthiness claims against Boh Bros., and plaintiffs' general maritime law claims against the Joint Venture. Initially, the court found that Kinchen and Abshire were Jones Act seaman. The fact that Kinchen did not sleep, eat supper, stand watch, or sail aboard the vessel did not preclude a finding that he was a Jones Act seaman. He had a connection to a vessel in navigation that was substantial in duration and nature because he was regularly exposed to the perils of the sea and spent more than 30% of his time working aboard the vessel. Abshire also satisfied the duration requirement of the Chandris test and the court held that he was also a Jones Act seaman. The plaintiffs testified that Boh Bros. was negligent because the crew boat, with the tires affixed to the push knees, obstructed their view, causing the allision with the survey tower. The court agreed, finding the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires created a visual obstruction, and did not remedy the situation which was created by its employee. Further, the court held that the evidence demonstrated that the placement of the tires on the push knees rendered the crew boat unseaworthy. However, Kinchen's recovery was reduced by his comparative negligence, which the court found to be 50% fault for the allision. The court found that Abshire's injuries were caused by the combination of the negligence of Kinchen, a Boh Bros. employee, and the unseaworthiness of the vessel caused by another Boh Bros. employee who installed the tires on the top of the push knees. Abshire was therefore held entitled to recover 100% of his damages against Boh Bros. The court dismiss the plaintiffs’ general maritime claim against the joint venture, finding the survey towers were visible from approximately a mile away on a clear day, well marked and the joint venture owed no further duty to the plaintiffs. (USDC EDLA, June 21, 2011) 2011 U.S. Dist. LEXIS 65546
AIR TOUR OF NAVIGABLE WATERWAY HELD NOT TO BE MARITIME JURISDICTION
IN RE HUDSON RIVER MID-AIR COLLISION ON AUGUST 8, 2009
On the morning of August 8, 2009, a Piper N71MC and a Eurocopter N401LH collided in midair, allegedly in part due to errors made by an air traffic controller. Both aircrafts plummeted into the Hudson River, killing the pilot and five passengers on board the Eurocopter, as well as the Piper's pilot and two passengers. Plaintiffs, the representatives of the five deceased Eurocopter passengers, assert admiralty and maritime claims against Liberty Helicopter Inc. and Meridian Consulting I Corporation, Inc. The defendants moved to dismiss the admiralty and maritime claims, contending that admiralty jurisdiction and the application of maritime common law is not appropriate, because all contacts with the Hudson River are merely fortuitous and the crash bore no relationship to traditional maritime activities. The court noted that the parties did not dispute that the location test was readily satisfied, as the airplane and helicopter crashed over the Hudson River and landed in navigable waters. Thus, the only remaining issue was whether the activity of taking a helicopter tour over the Hudson River has a substantial relationship to traditional maritime activity. The court observed that this case would ultimately be about whether there were errors made by the air traffic controller, and the Piper and Eurocopter pilots, not about issues within "admiralty's area of particular competence. Moreover, the case did not concern activity traditionally performed by waterborne vessels. Though the plaintiffs tried to make much of the fact that the decedents were taking a tour of the Hudson river, the court found this argument unpersuasive, noting that there are many more boat tours of the river than there are helicopter tours. The court found that there was an insufficient connection with traditional maritime activity to permit the admiralty and maritime claims to proceed against any of the Defendants. The defendants' motion to dismiss the admiralty and maritime claims was granted. (USDC DNJ, June 17, 2011, UNPUBLISHED) 2011 U.S. Dist. LEXIS 65491
COURT ORDERS WAGE DISPUTE TO BE ARBITRATED
CHIOTAKIS V. CELEBRITY CRUISES INC.
This case involved allegedly unpaid overtime wages owed to Celebrity Cruises Inc.’s housekeeping staff from 1992 to the present. Emmanouil Chiotakis, the named plaintiff in this putative class of employees, worked Celebrity’s housekeeping department in its Caribbean fleet from approximately 2002 through 2008. He alleged being owed unpaid overtime wages, penalties and statutory damages under 46 U.S.C. §10313, the Seaman's Wage Act. Chiotakis Originally brought suit against Celebrity in state court, but Celebrity removed the action to federal court and subsequently moved to dismiss, arguing that the Wage Act claim must be dismissed as it was governed by a mandatory arbitration provision. After reviewing the signed employment agreements, which incorporated by reference the collective bargaining agreements which governed all terms of Chiotakis’s employment, including Celebrity’s obligation to pay him overtime wages, the court granted Celebrity’s Motion to Dismiss and directed Chiotakis to proceed to arbitrate his overtime wage dispute as per his employment contract. (USDC SDFL, May 31, 2011) 2011 U.S. Dist. LEXIS 58396
Quotes of the Month . . . “Employment is nature's physician, and is essential to human happiness."--Claudius Galen
“Life is change. Growth is optional. Choose wisely."--Karen Kaiser Clark
“Where all think alike, no one thinks very much." --Walter Lippmann
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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