November 2011 Longshore Update

November 2011

Notes From Your Updater - On October 1, 2011, the U.S. Supreme Court heard oral argument in the case of Pacific Operators Offshore, LLP v. Valladolid, Docket No. 10-507. A transcript of the argument can be found here. You can also listen to an audio version of the argument, courtesy of the Oyez Project at Chicago-Kent, available here (it’s much more interesting then reading a boring transcript, I might add). The question presented to the Court in this case is, “When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?” I believe Mr. Clement won the oral argument in the case; at least I hope he did .

The Supreme Court of Louisiana denied a rehearing in the case of Fulmer v. Dept. of Wildlife & Fisheries, 2011 La. LEXIS 1896 [see August 2011 Longshore Update], on September 2, 2011. This was a case in which the court determined that the state employee’s Jones Act claim was not barred by the Louisiana Workers' Compensation Act.

On October 11, 2011, the OWCP issued Longshore Notice No. 136, dealing with Newly Revised Longshore forms. Mandatory Longshore Form LS-206, Payment of Compensation Without Award, has been revised August. 2011. Effective November 01, 2011, the revised version of the form should be used. All prior versions of the form are obsolete. The LS-202 also has some minor revisions to it. The revised forms are now available for download and printing from the DLHWC website. http://www.dol.gov/owcp/dlhwc/lsforms.htm

11TH CIRCUIT - WHO NEEDS THE SUPREME COURT? WE’LL DECIDE THE ISSUE.
BOROSKI, ET AL V. DYNCORP INTERNATIONAL, ET AL.

Circuit Court Opinion
BRB Decision
ALJ Decision

Bernard Boroski worked for DynCorp International, in Tusla, Bosnia, as a sheet metal mechanic from and was allegedly was exposed to various chemicals which supposedly caused Boroski to become legally blind in both eyes. Boroski was found to be permanently and totally disabled since April 20, 2002. DynCorp contested that it was the cause of Boroski's blindness and submitted an application for §8(f) relief. Boroski’s wages at the time of the injury were high enough to entitle him to the applicable statutory maximum level of compensation. Boroski timely applied for workers compensation benefits under the LHWCA, which applied to him by operation of the Defense Base Act. Because DynCorp contested liability, Boroski's claim was adjudicated before an ALJ, who on February 15, 2008, held that Boroski was entitled to compensation for permanent and total disability beginning April 20, 2002. The ALJ did not specify the maximum compensation rate that was applicable or calculate the amount owed to Boroski. The ALJ also awarded Boroski interest on all accrued compensation and penalties, computed from the date each payment was originally due. After the compensation order was filed, and relying on §906, DynCorp based its payment of disability benefits for April 20, 2002, through September 30, 2002, on the maximum compensation rate that was in effect for that period, $966.08 per week and, pursuant to §910(f), increased the benefits it paid to Boroski annually beginning October 1, 2002. Boroski applied to the district director for a supplemental order declaring DynCorp in default. Boroski alleged that DynCorp used an inappropriate maximum compensation rate. The district director agreed with the maximum compensation rate DynCorp had paid, determined by reference to the date when benefits became payable (April 20, 2002), and not by reference to the date on which benefits were awarded to him (February 15, 2008). Boroski appealed the decision of the district director to the BRB and DynCorp cross-appealed the order of the ALJ that found that Boroski was entitled to benefits. The BRB affirmed the decision of the district director, rejecting Boroski's argument that he was entitled to compensation for the years 2002-2008 at the 2008 maximum compensation rate. Boroski appealed to the United States District Court for the Middle District of Florida. Applying principles of statutory construction, the district court affirmed the decision of the Benefits Review Board. The district court was persuaded by the 9th Circuit’s in Roberts [see December 2010 Longshore Update]. Boroski timely filed a notice of appeal, arguing, as he did before the district court and the BRB, that the plain language of §906(c) unambiguously provides that the applicable maximum compensation for him is 200 percent of the national average weekly wage in effect at the time of the award. The 11th Circuit Court of Appeals agreed with Boroski’s argument that the plain language of the statute established that Boroski is entitled to compensation at the maximum rate in effect at the time of the administrative award. After a lengthy historical analysis of the LHWCA, the appellate court concluded that Boroski was "newly awarded compensation" at the time of the ALJ's award and was not receiving voluntary compensation. Thus, under a plain reading of the statute, the court agreed that the maximum compensation rate applicable to Boroski must be determined by reference to the national average weekly rate applicable to "such period" on which he received his award, that is, February 15, 2008. The panel was critical of the 9th Circuit’s Roberts opinion, suggesting it had simply applied Chevron deference to the Director's litigating positions and in attempting to avoid potential inequitable results, substituting what it thought Congress should have said for the plain language that Congress used. The court also criticized Roberts for construing the term "award" to mean "entitled to compensation," which the 9th Circuit panel admitted was not the ordinary and common meaning ascribed to that term, yet allowed the same term to have its ordinary and common meaning in other sections of the LHWCA. Applying long-standing principles of statutory construction, the appellate court found that the maximum weekly rate of compensation is governed by the rate in effect at the time of the award. The court further pointed out that following the statute as written would provide a claimant with a higher benefit, at a concomitant cost to the employer, if entry of an award is substantially delayed. Adopting the Roberts construction would result in a lower benefit, at a concomitant gain to the employer, if entry of an award is substantially delayed. The fact that Congress had chosen to encourage employers to pay promptly by imposing penalties for non-payment of claims that result in awards unless a claim is timely controverted does not make the disabled employee whole, since controversion is totally within the control and discretion of the employer. Therefore, the court reversed the decision of the district court and remanded for calculation of the sum to be paid. (11th Cir, October 27, 2011) 2011 U.S. App. LEXIS 21776
Updater Note: What surprised me most about this opinion was not the outcome but, rather, that the Circuit Court acknowledged that the U.S. Supreme Court had granted certiorari on this very issue, yet went ahead and issued a panel opinion anyway, rather than deferring and extending deference to the Supreme Court. Others have speculated that the Eleventh Circuit intentionally wrote this opinion now to try and persuade the Supreme Court to reverse Roberts. There are obviously compelling arguments on both sides of this issue. Hopefully, when the Supreme Court issues its opinion in Roberts, we will all know which arguments are most compelling.

CAUSATION REQUIREMENT SATISFIED UNDER THE AGGRAVATION RULE
P&O PORTS TEXAS, INC. V. DIRECTOR, OWCP, ET AL. [SALAZAR]

Circuit Court Opinion
BRB Decision
ALJ Decision

Hipolito Salazar is a mechanic, formerly employed by P&O Ports Texas, Inc., who was working under a forklift when a wrench came loose and allegedly struck him on his right leg between his thigh and knee. Salazar failed to report the injury to his employer on Friday, when it allegedly happened and, instead, waited until the following Monday to report it. At that time, Salazar's knee was bruised and swollen. Salazar was diagnosed with internal derangement of his right knee, and eventually underwent surgery to repair a right medial meniscal tear. Salazar made a claim for benefits against P&O under the LHWCA. The dispute was submitted to an ALJ, who rendered a decision and order in favor of Salazar, requiring P&O to pay Salazar compensation benefits and medical expenses. P&O appealed the decision to the BRB, which upheld the ALJ's ruling. P&O appealed the BRB’s affirmation, asserting that, because the record evidence was inconclusive with respect to whether the alleged injury, in fact, caused Salazar's meniscal tear, Salazar was not entitled to benefits under the LHWCA. The appellate court began its analysis by noting that the ALJ determined that, although P&O presented sufficient evidence to overcome Salazar's presumption of an entitlement to benefits, upon review of the entire record, the alleged injury contributed to or aggravated Salazar's right meniscal problem. For purposes of its limited appellate review, the court found the causation requirement satisfied under the aggravation rule as long as there is substantial evidence that Salazar's injury worsened his condition, even if he cannot conclusively demonstrate that the injury was the direct or sole cause of his meniscus tear. The court held that there was clearly substantial evidence in the record to support the ALJ’s conclusion. The ALJ emphasized that the absence of symptoms prior to the injury indicated that the injury worsened an existing knee problem. Considered together, a reasonable mind might accept this evidence as adequate to support the conclusion that Salazar's employment injury worsened a preexisting impairment. The court denied P&O’s petition for review. (5th Cir, October 25, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21712

WHAT WE HAVE HERE IS A COMPLETE LACK OF CREDIBILITY
GOLD V. DIRECTOR, OWCP [DOLPHIN SERVICES, L.L.C.]

Circuit Court Opinion
BRB Decision
ALJ Decision

Michael Gold worked for Dolphin Services, L.L.C. as an offshore rigger. He alleged sustaining a back injury while performing his duties, after awakening with back pain one morning After filling out an accident report, Gold declined medical attention and returned to his regular duties, which required repetitive bending, stooping, and lifting. Gold’s employment was terminated several months later, because he reported to work with alcohol in his system. Gold eventually filed a formal claim for compensation for his alleged back injury, which Dolphin controverted. The ALJ who heard the case found that Gold’s credibility was suspect and was not therefore sufficient to establish that an injury occurred. The ALJ also found that no medical evidence supported a finding that Gold suffered an injury under the LHWCA. In the alternative, the ALJ found that even if the employee could show he sustained an injury, there was insufficient evidence to establish that any work-related accident, exposure, event, or episode occurred that could have caused the injury. The ALJ based this finding on the many internal inconsistencies in Gold’s statements, as well as the testimony from others that contradicted Gold’s testimony. The BRB affirmed the ALJ’s denial of compensation benefits. Gold sought further appellate review of the BRB decision affirming the ALJ’s denial. On appeal, the court ruled that the ALJ's determination that Gold’s testimony on both prongs of the prima facie case was not credible, and that the credible evidence did not support his allegations, was supported by the evidence in the record. Gold’s contention that the ALJ made incorrect credibility determinations was found to be unavailing. The appellate court held that the ALJ, as the sole fact finder, was entitled to consider all credibility inferences and his selection among inferences was conclusive. The court affirmed the decision. (5th Cir, April 29, 2011, UNPUBLISHED) 424 Fed. Appx. 274; 2011 U.S. App. LEXIS 9018

REVERSAL OF §8(F) GRANT AFFIRMED DUE TO LACK OF MANIFESTATION
POMTOC, ET AL. V. DIRECTOR, OWCP, ET AL. [TAPANES]

Circuit Court Opinion
BRB Decision
ALJ Decision

POMTOC's employee, Reyland Tapanes, alleged that as a result of tripping and striking his right elbow against a barricade while inspecting a chassis, he injured his right rotator cuff while at work. A hearing was held before an ALJ, who found that Tapanes had sustained a permanent partial disability and awarded Tapanes compensation for that disability. The ALJ also entertained POMTOC's petition for relief under Section 8(f) of the Act, on the ground that Tapanes had sustained a heart attack six months earlier, and that his compensable rotator cuff disability was greater due to his disabling heart attack. Acting on a stipulated record, the ALJ granted POMTOC Section 8(f) relief. The Director appealed the ALJ's Section 8(f) decision to the Benefits Review Board, and the Board, addressing only the manifestation element, reversed. The Board concluded that because the only evidence before the ALJ of Tapanes's April 2005 heart attack was contained in medical records generated after the October 31, 2005 rotator cuff incident, there was no evidence in the record from which the ALJ could have ascertained that POMTOC had actual knowledge of Tapanes's heart attack prior to the work accident. The Board denied POMTOC's motion to reconsider and POMTOC appealed, arguing that the Board overlooked the ALJ's reliance on Tapanes's deposition testimony, which established that Tapanes was absent from work for a month following his heart attack and that his cardiac disability was manifest to POMTOC. The appellate court initially observed that Tapanes's deposition was not part of the record. Acknowledging this fact, POMTOC argued alternatively that the case should be remanded to the ALJ for reopening of the evidence; or for modification under Section 22 of the Act. The appellate court rejected this invitation and agreed with the Director that POMTOC submitted no proof that it had knowledge, actual or constructive, of Tapanes's cardiac condition before Tapanes sustained his rotator cuff injury. The Board's decision and its order denying POMTOC's motion for reconsideration were affirmed. (11th Cir, October 11, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 20712

CIRCUMSTANTIAL AND NEGATIVE EVIDENCE FAILS TO REBUT PRESUMPTION
JONES STEVEDORING COMPANY V. PAGLIA

Circuit Court Opinion
BRB Decision 1; BRB Decision 2
ALJ Decision 1; ALJ Decision 2

August Paglia filed a claim under the LHWCA for occupational hearing loss related to his employment as a stevedore at Jones Stevedoring Company. The ALJ ruled that Paglia established a prima facie claim for occupational hearing loss and was thus entitled to a presumption in favor of compensability pursuant to §920(a). The ALJ further concluded that Jones produced sufficient evidence to overcome the presumption. The BRB, however, reversed on that point, holding that Jones did not rebut the §20(a) presumption, and remanded for resolution of remaining issues. Jones appealed the BRB’s reversal, contending that the Board exceeded its authority by reviewing the evidence de novo. Jones alternatively contended that the Board erred in holding that Jones did not produce substantial evidence to rebut the §20(a) presumption. The appellate court found that Jones had failed to produce substantial evidence that was specific and comprehensive enough to sever the connection between Paglia’s hearing loss and the conditions of his employment. The court concluded that the BRB correctly determined that the circumstantial and negative evidence produced by Jones, and relied upon by the ALJ, did not satisfy the rebuttal standard. Because Jones failed to produce specific and comprehensive evidence severing the connection between Paglia's covered employment and his hearing loss, the Board properly held that Jones did not rebut the §20(a) presumption. (9th Cir, October 20, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21483

HE DID NOT KNOW ENOUGH TO LOOK WHERE HE WAS GOING (CONT.)
BAHAM V. NABORS OFFSHORE CORPORATION

Circuit Court Opinion

Lejo Baham was employed by Seatrax Services, Inc. as a crane mechanic. Baham was sent to a jackup drilling rig owned by Nabors Offshore Corporation and located on the Outer Continental Shelf, to inspect and possibly repair the port-side crane on the rig. Baham was injured when he fell through an opening in a walkway that had not been secured by a Nabors’ employee. Baham sued Nabors under §905(b) of the LHWCA, contending that Nabors violated the second Scindia duty. The court initially found that Baham had authority to ascend the ladder to the crane and to begin his inspection and no JSA was performed as was Nabors’ policy. Because Nabors retained operational control over the ladder and walkway in question, the court held that Nabors was liable to Baham for the hazardous condition. The court also found that the evidence demonstrated that, at the time of Baham's accident, the configuration of the ladder and walkway through which Baham fell constituted an unreasonable risk of harm to Baham. The court awarded Baham damages in the amount of $949,993.39 along with pre and post-judgment interest. The court also ordered that Seatrax’s workers’ compensation carrier was is entitled to recover its LHWCA lien of out of this amount. Because the court found Baham 50% contributorily negligent or at fault, Nabors was ordered to bear 50% of the entire cost of the judgment [see August 2010 Longshore Update]. The parties appealed and cross-appeal the district court’s judgment. On appeal, Baham asserted that his comparative fault should not have been considered in an LHWCA case, and that the district court erred in the allocation of fault between Baham and Nabors. Baham also challenged the district court’s finding that Seatrax’s wage payments were advance payments of compensation benefits under the LHWCA, and he argued that the workers’ compensation insurer’s compensation lien against Baham’s recovery should be reduced by the fraction of comparative fault attributed to Baham. Nabors cross-appealed, challenging the district court’s findings that Nabors was negligent under §905(b), that Nabors violated 33 C.F.R. § 142.87, and that the violation constituted negligence per se. Nabors joined Baham’s challenge to the district court’s finding that Baham’s post-accident wages were advance payments of workers’ compensation benefits. The appellate court rejected Baham’s challenge to the assignment of comparative negligence as foreclosed by Neal v. Saga Shipping Co., which held that plaintiffs who are not Jones Act seamen do not enjoy the benefit of the rule barring application of contributory negligence. Baham’s argument regarding the effect of comparative negligence on an employer’s entitlement to recoup advance workers’ compensation payments was also foreclosed by binding precedent. The district court’s negligence findings and its allocation of fault between Baham and Nabors are factual determinations, which the appellate court concluded it may not set aside absent clear error. Neither Baham nor Nabors pointed to any problem with the district court’s fact finding that would merit reversal under that standard.. The appellate court rejected Nabors argument that 33 C.F.R. §142.87 does not apply, because Nabors was not Baham’s employer, as being raised for the first time on appeal, and therefore not considered. In any event, the appellate court noted that the district court’s conclusion that Nabors failed to exercise ordinary care supported its fault determination independently of the §142.87 violation. Finally, the appellate court noted that the intentions of the employer are dispositive of whether post-injury payments to a LHWCA-covered employee constitute true wages or advance payments of workers’ compensation. The appellate court held that the district court’s conclusions regarding Seatrax’s intentions were supported by enough evidence to preclude finding clear error. The district court’s judgment was affirmed in all respects. (5th Cir, October 18, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21172

I DON’T WANT TO PAY THIS LONGSHORE SHYSTER
HAYWOOD V. NORTHROP GRUMMAN SHIPBUILDING INC., ET AL.

Circuit Court Opinion
BRB Decision; BRB Reconsideration

Charles Haywood allegedly injured his left knee during the course of his employment with Northrop Grumman Shipbuilding Inc. Haywood initially retained an attorney to represent him. After Haywood’s attorney requested an informal conference Northrop commenced the voluntary payment of compensation, so the conference was cancelled. Haywood’s attorney later submitted a fee petition to the district director requesting an attorney’s fee of $7,225, payable by his client. Haywood challenged the fee petition on the basis that Northrop was liable for a fee, and asserting that he was unable to pay the fee. Following an informal conference the district director found that Northrop was not liable for the fee under §28(a), because it voluntarily paid claimant compensation within 30 days after receiving Haywood’s request for an informal conference, and held that Haywood was responsible for the fee. The district director also found that the attorney’s offer to reduce his fee to $4,500 to resolve the matter was reasonable and that Haywood submitted no evidence regarding his ability to pay the fee. The district director issued an order awarding an attorney fee of $4,500, payable by Haywood. On appeal, Haywood, proceeding pro se, challenged the district director’s fee award. The BRB found that the district director erred is using the date of the informal conference request to calculate the 30-day period. The proper calculation date, the date the claim was filed, was not a matter of record. Consequently, the Board could not determine whether the district director’s finding that Haywood was not entitled to an employer-paid attorney’s fee pursuant to §28(a) was in accordance with law. Accordingly, the district director’s finding that Northrop was not liable for a fee under §28(a) was vacated, and the case was remanded to re-assess Northrop’s liability for the attorney fee. The district director’s order was otherwise affirmed in all respects, making Haywood liable for the fee, if Northrop was found not liable therefore. The BRB denied Haywood’s motion for reconsideration of its earlier holding. Haywood appealed the Board’s denial of his request for reconsideration; however, the appellate court rejected the appeal, observing that it lacked jurisdiction to review the order denying reconsideration, noting that it could only exercise jurisdiction over final orders of the Board. Because the Board remanded the case for further proceedings, the Board's order was not a final order. Accordingly, the court dismissed the petition for review for lack of jurisdiction. (4th Cir, October 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21067

ALJ GETS IT RIGHT AND BRB SCREWS IT UP - SO WHAT ELSE IS NEW? (CONT.)
CARTER V. CALEB BRETT, L.L.C, ET AL.

BRB Decision
ALJ Decision

Rick Carter allegedly injured his back and neck at work in 1991, and he has been permanently totally disabled since October 1, 1993. In 1996, the parties entered stipulations, and the ALJ awarded Carter disability and medical benefits based on those stipulations. Carter chose a chiropractor as his treating physician. The employer, Caleb Brett, LLC, paid all benefits, including medical benefits, until February 2006, when it stopped paying for myofascial release technique and ultrasound treatments being billed by the chiropractor and massage therapy being rendered by a therapist at the chiropractor’s request. Carter filed a claim for these medical benefits. On employer’s motion for summary decision, the ALJ found that the unpaid disputed treatment provided by the chiropractor was not reimbursable because it exceeded the Act’s regulatory provision limiting chiropractic treatment to manual manipulations to treat subluxations. On appeal, the BRB distinguished Carter’s case from the Board’s holding in Bang v. Ingalls Shipbuilding, Inc., relied on by the ALJ. Then, essentially ignoring the restrictive language regarding reimbursement to chiropractors found at §702.404, the Board turned to the broad definition of covered “medical care” under §702.401(a) to justify its holding that the ALJ erred in denying payment for Carter’s massage therapy [see August 2009 Longshore Update]. Caleb Brett's subsequent appeal of this decision is still pending before the Fifth Circuit. After the Board's ruling, Caleb Brett took the position that it need not pay the chiropractor’s bills because the Board's decision did not expressly order it to do so. Carter ultimately obtained a Supplemental Order Declaring Default in the amount $3,220.20 from the District Director. Carter sought entry of a judgment in the amount of $3,220.20, to enforce the district director’s supplementary order declaring default. Caleb Brett moved to dismiss the petition, or in alternative, to enter a judgment declaring that Carter was entitled to no further chiropractic treatment. Caleb Brett argued that the supplementary order in dispute was not in accordance with law because: (1) Carter's petition for a supplementary order was not timely, and; (2) the underlying decision of the Board does not represent a "final order," as it was currently on appeal before the Fifth Circuit Court of Appeals and it did not specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts. The district court found that the parties were engaged in informal proceedings before the OWCP well within the statutory period and held that Caleb Brett failed to show that, notwithstanding these proceedings, Carter was also required to file a formal petition for a supplementary order within a year of the claimed default. Additionally, the court found, contrary to Caleb Brett's contention, the mere fact an appeal of the underlying order is pending before the Fifth Circuit did not render it non-final for the purposes of §918. Accordingly, the court held that the appeal did not relieve Caleb Brett of its payment obligations under the Board's ruling, and the supplementary order of default could not be characterized as an improper effort to enforce a non-final decision. In conclusion, the court held that Caleb Brett had failed to show that the order was not made in conformance with law. Its motion to dismiss was denied and Carter's petition was granted. (USDC NDCA, October 20, 2011) 2011 U.S. Dist. LEXIS 121442
Updater Note: The appeal of the BRB’s ruling, to the Fifth Circuit Court of Appeals, was originally scheduled for oral argument on November 8, 2011. However, on October 18, 2011, the assigned panel decided that oral argument was not required. It’s just speculation on my part, but I suspect the decision to forego oral argument does not bode well for the petitioner. Caleb Brett now goes by the name of Intertek USA, Inc.

WHERE IS THE VESSEL TO GO ALONG WITH YOUR §905(B) CLAIM?
CARAVELLO V. THE CITY OF NEW YORK, ET AL.

Matthew Caravello was employed by Spearin, Preston and Burrows as a dock builder on a project to expand a section of pier along the Hudson River, which was to become part of a public park. Caravello was allegedly injured as he was walking along an H-beam, which he claimed twisted downwards causing his right leg to fall onto a concrete precast slab. In addition to claiming compensation under the LHWCA, Caravello filed suit against the construction manager, Skanska USA, Inc., and the property lessee, Hudson River Park Trust (HRPT), pursuant to §§905(b) and 933 of the LHWCA and New York Labor Law §§200, 240 and 241. Skanska and the owner moved for summary judgment, arguing that the LHWCA preempted New York's Labor Law against all defendants, and they are not liable under LHWCA. Caravello opposed the motion claiming that the LHWCA applied and does not preempt New York Labor Law, which he contended also applied. The court initially noted that Federal maritime law and admiralty jurisdiction do not necessarily supersede and preempt New York State Labor Law, if there is no showing that the State rule conflicts with Federal Law, or otherwise hinders uniformity. The court found that the defendants had not made a prima facie showing entitling them to summary judgment based on preemption under LWHCA. Although Caravello was injured on a gangway located on navigable waters, he was not involved in an activity that would affect maritime commerce. The court concluded that Caravello’s labor law claims, which reflected the state's interests in protecting health and safety of workers, did not conflict with or threaten the uniformity of maritime law. However, the court also found that defendants had established a prima facie case for summary judgment concerning Caravello’s LHWCA §933 and §905(b) claims, since neither Skanska nor the HRPT were Caravello’s employers or the owners of vessels involved, holding that Caravello had not sufficiently met his burden of proof to sustain his LHWCA causes of action. The court also found that Skanska had made a prima facie showing of entitlement to summary judgment concerning the Labor Law § 200 cause of action, since it was the construction manager and did not supervise Caravello's work. However, the court found that Caravello had raised sufficient issues of fact concerning whether Labor Law §200 applied to HRPT. The court granted the motion for summary judgment in part, severing and dismissing Caravello’s LHWCA causes of action and the cause of action against Skanska pursuant to Labor Law §200. Caravello’s remaining Labor Law claimed were allowed to remain in effect. (NY Sup. Ct, October 4, 2011) 2011 NY Slip Op 32610U; 2011 N.Y. Misc. LEXIS 4734

JOE GRACE FAILS TO SAVE THE DAY WITH LAST MINUTE NEW OPINIONS
SOBRINO-BARRERA V. ANDERSON SHIPPING CO., LTD., ET AL.

Junior A. Sobrino-Barrera was employed by stevedoring company Gulf Stream Marine and was serving as the gang supervisor unloading bundled steel pipes from a vessel. Sobrino-Barrera was injured when a rolling bundle pinned his left leg against the wall of the hold, crushing it. His left leg ultimately had to be amputated below the knee. Sobrino-Barrera brought a longshoreman's personal injury claim under §905(b) of the LHWCA against multiple defendants, including Anderson Shipping Co., Ltd. the owner of the vessel, SoCoGEM Sam the vessel's technical manager or operator and Oldendorff Carriers GmbH & Co. K.G. the vessel sub-charterer. The defendants all moved to strike the affidavit of Sobrino-Barrera liability expert, Captain Joe Grace, and asked that summary judgment be rendered in their favor. The defendants asserted the Grace affidavit was either is an untimely supplemental report or irrelevant. The enlarged cut-off date for plaintiff to submit expert reports was February 25, 2011, and the cut-off date for all discovery was April 22, 2011. Sobrino-Barrera responded that the June 10th affidavit was not a supplemental report but rather is submitted to authenticate its expert's timely-filed original report, dated February 15, 2011. The court rejected the later argument, noting that a comparison of Grace's affidavit to his February 15, 2011 report disclosed that he departed from and expanded upon his original report in numerous material respects. As the assertions and opinions were new, and Sobrino-Barrera had given no explanation for his failure to comply with FRCP 26(a) or shown that their addition would be justified and harmless, the affidavit was stricken by the court and was not considered in the court’s §905(b) analysis. In analyzing the turnover duty, the court noted that, up until the time of the accident there was no evidence that the longshoremen had made any complaint about the stowage of the cargo. The court also found that Sobrino-Barrera failed to produce evidence that the conditions that caused the harm were any less obvious to the vessel than to the longshoremen, or that the conditions were otherwise hidden or latent. Accordingly, the court held the vessel had no turnover duty to warn against a defect or to correct an unsafe condition. The court next pointed to that lack of summary judgment evidence that the Master took operational control of the loading of the vessel. Rather, the summary judgment evidence was uncontroverted that the Master did not do so in offloading. Unlike Scindia, the court found that there was no evidence in the case that any of the vessel's crew knew that the stowage of the pipes created such an unreasonable risk to the plaintiff and his gang that the stevedores' commencement of offloading operations was obviously improvident in the face of danger. The court granted the defendants' Motions for Summary Judgment and Sobrino-Barrera’s claims were dismissed on the merits. (USDC SDTX, October 20, 2011) 2011 U.S. Dist. LEXIS 121626

LONGSHOREMEN HAD ACTIVE CONTROL OVER OPERATION; NOT DEFENDANTS
CAJEIRA V. SKRUNDA NAVIGATION, C/O LSC, ET AL.

Carlos Cajeira was a longshoreman employed by Kinder Morgan Inc., who was assisting with the release of defendants’ tank ship, when he allegedly sustained injuries which are the subject of this suit. Kinder Morgan was using its own 10" hoses to discharge petroleum from defendants’ tank vessel. After the petroleum was fully discharged from the vessel, the hoses were disconnected and the ship’s crane was used to lower the hoses onto the dock so that Cajeira and his coworkers could stow them away. During the lowering of the fourth hose, Cajeira was four to five feet away from the edge of the pier and suddenly fell off the dock and into the water. Although Cajeira claimed that an unexpected movement by the hose caused his accident, he does not know what caused the hose to move and allegedly knock him into the water, and there was no evidence that the crane malfunctioned. Cajeira sought to recover damages under §905(b) of the LHWCA. Defendants moved for summary judgment, claiming they did not breach any duty of care under §905(b) of the LHWCA. Following a bench trial and a review of the evidence, the court found that defendants did not violate any duties owed to Cajeira. Although Cajeira argued that defendants violated the active operations duty by negligently operating the vessel's crane, causing the hose/line to jerk, defendants countered that Cajeira’s could not establish that the active operations duty was even triggered. Cajeira and the hose crew, by directing the crane, were in operational control of the crane. The court noted that Cajeira’s only proffered evidence that defendants exercised active control is that the ship’s crane operator was solely responsible for operating the crane on the night of the accident. However, the court found that Cajeira had failed to present any evidence that the crane operator acted negligently in carrying out his duties or executed any orders contrary to those given to him from Kinder Morgan’s crew. In construing the facts in a light most favorable to Cajeira, the court concluded the facts presented indicate that defendants did not retain substantial control over the crane as Cajeira and his coworkers were commanding the crane's movements. Defendants’ Motion for Summary Judgment was granted. (USDC NJ, October 26, 2011) 2011 U.S. Dist. LEXIS 123696

DEFENSE & INDEMNITY OBLIGATION VOIDED BY §905(B) OF THE LHWCA
HOLDEN V. U.S. UNITED OCEAN SERVICES, LLC., ET AL.

Paul Holden, a ship repairer and an employee of Buck Kriehs, claimed he was injured while repairing U.S. United Ocean Services, L.L.C. (UOS) vessels at Buck Kreihs' dock. Holden was on a gangway when a crew member of the vessel allegedly unhooked the gangway, without providing any warning to Holden, thereby causing the gangway to fall and hit the dock, allegedly severely injuring Holden. As a result of the alleged incident, Holden and his wife, filed his §905(b) lawsuit under the LHWCA, alleging personal injuries and loss of society claims, respectively, against UOS. Shortly thereafter, UOS filed a Third-Party Complaint against St. Paul Fire & Marine Insurance Company, seeking defense, indemnity and coverage under a marine general liability insurance policy that St. Paul issued to Buck Kreihs. UOS asserted that it was owed contractual defense and indemnity against the Holdens' claims under a General Services Agreement between UOS and Buck Kreihs, and that those purported contractual defense and indemnity obligations are insured under Buck Kreihs' St. Paul insurance policy. St. Paul moved for partial summary judgment, arguing that §905(b) of the LHWCA precluded UOS’s third-party action, because Buck Kreihs was Holden’s employer and the employer could not be held liable to the vessel for damages, directly or indirectly, and any agreements or warranties to the contrary were void. The court agreed, finding that, because the act that resulted in Holden's injury arose from UOS's alleged negligent actions, per Section 905(b), it could not require Buck Kreihs, the employer, to indemnify it. Accordingly, St. Paul, as Buck Kreihs' insurer, could not be required to contractually defend or indemnify UOS for this act. St. Paul's Motion for Partial Summary Judgment was granted. (USDC EDLA, October 19, 2011) 2011 U.S. Dist. LEXIS 120993

THE STATUTE OF LIMITATIONS HAS RUN
GREEN V. CLYDE M. ROBERTS, III, ET AL.

On January 26, 2006, an explosion rocked the vessel that Joel W. Green was working on, as it underwent repairs in a shipyard. Green, who was employed aboard the vessel as a welder, allegedly sustained injuries in the explosion. On September 3, 2010 (more than four and a half years later), Green commenced this action naming Clyde M. Roberts, III, and Independent Marine Consultants, Inc. as defendants and alleging maritime tort claims against Roberts for negligent supervision of the work being performed and against Independent Marine (Roberts' company) for negligence, seeking to hold that defendant liable for Roberts' conduct. To defend the timing of filing this action, Green specifically alleged in his Complaint that (i) he was prohibited by law from bringing suit against Roberts or Independent Marine until a March 2010 judicial determination in another lawsuit that defendants were not agents of the United States; and (ii) he did not discover or have knowledge of defendants' involvement until obtaining such information from the United States in discovery in that other action on November 15, 2007. As expected, defendants filed a Motion to Dismiss, wherein they maintained that Green's claims against them are facially barred by the applicable three-year statute of limitations. Green responded, asserting that he brought his claims within three years after they accrued, and that the Complaint should be deemed timely under doctrines of equitable tolling or equitable estoppel, in any event. Defendants' Motion to Dismiss was granted because all of Green’s claims asserted were time-barred on their face, and because the narrow doctrines of equitable tolling and equitable estoppel had no application. (USDC SDAL, October 14, 2011) 2011 U.S. Dist. LEXIS 119793

OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS

Digest #236

The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #236. 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. 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."

And on the Admiralty front . . .

2ND CIRCUIT EASES RESTRICTIONS ON INTERLOCUTORY ADMIRALTY APPEALS
CHEM ONE, LTD. V. M/V RICKMERS GENOA, ET AL.

Circuit Court Opinion

The US Court of Appeals for the Second Circuit ruled that it will allow an interlocutory appeal in an admiralty case when a district court has determined all of the liabilities of a party and the district court’s decision is unaffected by any remaining claims. The case involved a 2005 maritime disaster, during which the M/V Rickmers Genoa vessel collided with another vessel, the M/V Sun Cross, in the Yellow Sea. The Rickmers Genoa sustained flooding in one of her cargo holds, and a few hours later, an explosion and a fire occurred in the No. 1 cargo hold of the Rickmers Genoa, resulting in the loss of cargo and a life. Numerous parties had filed a variety of claims against each other. The district court granted summary judgment with respect to one of the numerous claims. The party against which summary judgment was granted sought an interlocutory appeal, which was opposed by another party. The crux of the appellate court’s decision was that the panel overruled what was assumed to be the rule in the Second Circuit limiting the right to an interlocutory appeal by finding that an earlier contrary statement in Thypin Steel Co. v. Asoma Corp., 215 F.3d 273, was mere dicta, and not binding. The appellate court further found Thypin Steel’s dictum at odds with the plain language of 28 U.S.C. §1292(a)(3). (2nd Cir, October 20, 2011) 2011 U.S. App. LEXIS 21222

11TH CIRCUIT THROWS OUT PUBLIC POLICY DEFENSE, AFFIRMING LINDO
MAXWELL V. NCL (BAHAMAS), LTD

Circuit Court Opinion

Ricardo Maxwell, a Costa Rican seaman, sued his employer, NCL (Bahamas), Ltd., under the Jones Act in Florida state court. NCL removed the case to federal court, where it sought to enforce an arbitration agreement in Maxwell's employment contract. Maxwell asked the district court to remand the case to state court. The district court found that the arbitration agreement was invalid because it, along with the contract's choice of law clause, deprived Maxwell of his U.S. causes of action and thus violated public policy. Because the district court found the arbitration agreement unenforceable, it remanded the case to state court. NCL appealed from the remand order and argued that Thomas conflicts with the appellate court’s earlier decision in Bautista. The appellate court noted that in Lindo v. NCL (Bahamas) Ltd. it had recently recognized that Bautista limited the defenses available to enforcement of an arbitration agreement in an international commercial agreement, like Maxwell's employment contract, to fraud, mistake, and waiver, because the court concluded that they could be applied neutrally throughout the world. Although Thomas recognized public policy as another defense to enforcement of an arbitration agreement, the court had concluded in Lindo that Thomas's expansion of the defenses to enforcement of an arbitration agreement violated the court’s prior panel precedent rule. As such, public policy is not a valid defense to enforcement of an arbitration agreement. The appellate court reversed the district court's remand order, and remanded to the district court to enter an order compelling arbitration. (11th Cir, October 18, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21237

YOU NEED TO PROVE NEGLIGENCE - THEY DON’T NEED TO PROVE A NEGATIVE
CHIZMAR V. MALPASO PRODUCTIONS CORPORATION ET AL.

Appellate Court Opinion

James Chizmar, Jr. was allegedly injured working on a movie set as he attempted to transfer, in open water, from one boat into another. Chizmar filed suit against Warner Brothers Entertainment, Inc. and Malpaso Productions Corp., claiming Jones Act negligence, general maritime negligence and unseaworthiness. The trial court subsequently granted Malpaso's unopposed motion for non-suit. At trial Chizmar testified that he was transferring from one boat to another and a large wave knocked the boats together causing him to lose his balance and fall forward. He landed on his left knee which was bruised and swollen. During closing argument, Chizmar's attorney focused heavily on the amount of damages. With respect to liability, he argued that Warner could have loaded the vessel on the beach eliminating the need for a boat-to-boat transfer and the need for Chizmar to perch on the ledge of the of the other vessel. Counsel also argued that the vessel was not seaworthy because it did not have steps. Following a full trial on the merits, a jury rejected his theories that Warner was negligent under the Jones Act and provided an unseaworthy vessel. Because it found Warner was not negligent, the jury was not required to consider causation or contributory negligence. The trial court entered judgment in accordance with the jury verdict, and Chizmar appealed from the judgment, challenging the sufficiency of the evidence supporting the finding that Warner was not negligent and the court's rejection of several proposed instructions. The appellate court found that the record contained sufficient evidence to support the jury's finding that Warner was not negligent. Although there was conflicting evidence regarding whether the transfer should have been avoided, a reasonable jury could have credited testimony that a boat-to-boat transfer was preferable. This inference is further supported by Chizmar's acknowledgment that boat-to-boat transfers occurred routinely and fell within his responsibilities. Additionally, Warner provided safety guidelines describing boat-to-boat transfers and provided safety training prior to commencing production. The court also noted that the record contained conflicting evidence regarding the need for steps on the boat to facilitate transfer. A reasonable jury could have simply credited one opinion and discredited the other. The appellate court rejected Chizmar's emphasis of his own witness's testimony, as ignoring the appropriate standard of review. Although Chizmar correctly pointed out that the lack of safe ingress and egress may, in proper circumstances, support an unseaworthiness claim, the jury rejected that claim. The court also held that Chizmar failed to show any prejudicial error in the jury instructions. The final judgment was affirmed in all respects. (Ca. 2nd App., October 19, 2011, UNPUBLISHED) 2011 Cal. App. Unpub. LEXIS 7955

LACK OF PRIVITY DEFEATS COLLATERAL ESTOPPEL DEFENSE
SAQUI V. PRIDE INTERNATIONAL, INC., ET AL.

Appellate Court Opinion

During storm preparation, on a mobile offshore drilling rig, Miguel Angel Barragan and another worker, Christian Spinoso, were working on tying down a heavy "burner boom." It became disconnected from the rig and fell into the water, pulling them and one other crew member overboard. Barragan and Spinoso were both killed in the incident. The trial court granted summary judgment in favor of Pride International, Inc., and other defendants, in connection with an action filed by representatives of the workers’ estates, related to death. The representatives appealed. This was after a federal lawsuit, filed by the representatives and other plaintiffs, was previously dismissed. On appeal, the court affirmed in part and reversed and remanded in part. Because the representatives did not challenge the grant of summary judgment in favor of Pride International and others, the representatives waived any potential error, and the court affirmed in this regard. The resolution of the appeal as to another defendant, Pride Central America, L.L.C. (PCA), turned on whether the representatives were in privity with the other plaintiffs in the federal district court litigation. The appellate court found the fact that the two cases arose out of the same maritime accident did not establish privity. PCA did not cite authority holding that the mere fact that two persons killed in an accident were cousins, as in this case, established privity. Because privity was not shown, which was an essential element of PCA’s collateral estoppel affirmative defense, the appellate court concluded that the trial court erred in granting PCA summary judgment. The appellate court affirmed the grant of summary judgment to the other defendants, but reversed as to PCA and remanded for further proceedings. (Tex. 14th App, October 25, 2011) 2011 Tex. App. LEXIS 8458

EMPLOYERS ENTITLED TO RESTITUTION OF FRAUDULENT MAINTENANCE & CURE
BOUDREAUX V. TRANSOCEAN DEEPWATER, INC.

Wallace Boudreaux filed a seaman’s complaint against Transocean Deepwater, Inc., seeking damages of $1 million to compensate his reduced earning capacity as a result of an alleged injury sustained while in Transocean’s employ as well as $250,000 in compensatory damages for back maintenance and cure allegedly owed by Transocean, continuing maintenance and cure costs and attorney's fees. Boudreaux claimed he injured his back while performing anchor maintenance aboard one of Transocean’s vessels. Through discovery, it was established that Boudreaux intentionally concealed significant back injuries at the time of his post-hire medical interview with Transocean. Transocean filed a Motion for Partial Summary Judgment on Boudreaux’s maintenance and cure claims, asserting Boudreaux had raised no issue of material fact in light of McCorpen. Boudreaux formally requested to be allowed to withdraw his maintenance and cure claims and the court granted his request. Transocean moved to file a counterclaim, which the court granted, and filed a counterclaim against Boudreaux seeking restitution of the maintenance and cure payments made to him. Boudreaux contended there is no cognizable general maritime law claim under Fifth Circuit precedent allowing restitution. Transocean conceded restitution for a Jones Act employer of maintenance and cure payments made to an employee subsequently found to have concealed a material, pre-existing medical condition under McCorpen is a res nova issue in the Fifth Circuit, but argued that Boudreaux had been unjustly enriched as a result of his fraud. After reviewing the law of other circuits, and various compensation schemes, the court agreed with Transocean that the logical and natural consequences for knowingly violating the duty to disclose such a condition, when clearly sought by the Jones Act employer, and the resulting receipt of benefits that would not have been due, weighed in favor of restitution. The court found Boudreaux concealment was more than unreasonable; they were intentionally done and void of good faith. Under the circumstances of the case, the employer's recovery of undue maintenance and cure payments or, alternatively, a credit in favor of the employer against monetary relief it might pay in resolution of ultimate liability issues would not run afoul of or interfere with traditional maritime policies. Instead, such a result would promote respect and compliance with same. The court granted Transocean’s motion for restitution, finding that Boudreaux engaged in willful misconduct. Even wards of the court must be forthright and truthful. The court found that Boudreaux had deprived himself of a seaman’s protection through his own willful and deliberate misconduct and consequences should be considered. An opposite result would lead to a travesty of justice, encouraging mockery of the judicial process and denigration of the founding principles of admiralty. (USDC EDLA, October 20, 2011) 2011 U.S. Dist. LEXIS 122275
Updater Note: Ballsy decision from Judge Ivan Lemelle. This now gives employers in the 5th Circuit something to hang their hats on, when seeking restitution from seamen who have obtained their employment and seamen’s benefits through fraud and deceit. Bravo Zulu to Judge Lemelle.

COURT HOLDS SEAMAN CAN HAVE TWO JONES ACT EMPLOYERS (CONT.)
DENNIS V. CALM C'S, INC., ET AL.

Victor Dennis was working for Calm C's Inc. as a captain assigned to a crew boat owned by Calm C's and contracted for by Weeks Marine, Inc. to assist in the performance of maintenance dredging. Dennis allegedly sustained injuries when Weeks’ dredge hit a pipeline owned by Contango Oil & Gas Company, causing an explosion. Dennis eventually sued Calm C’s, Weeks, the ACOE, and Contango, claiming negligence on the part of all parties. Contango was previous granted summary judgment, dismissing them from the lawsuit [see September 2011 Longshore Update]. Weeks moved for summary judgment on Dennis’s unseaworthiness, Jones Act, and maintenance and cure claims, contending it neither employed Dennis nor was Dennis a crew member of its dredge. However, after weighing the Ruiz factors, in light of Dennis’s “borrowed employee” allegation, the court concluded that the factors that supported a finding that Dennis was a borrowed servant outweighed those to the contrary. As a result, the court found that Weeks was an employer of Dennis, thus attaching potential Jones Act liability and responsibility for maintenance and cure [see October 2011 Longshore Update]. Following the court’s ruling on Weeks’ summary judgment motion, Calm Sea’s moved for summary judgment, asking the court to dismiss Dennis’s claims of Jones Act negligence and unseaworthiness under general maritime law. Calm C's primarily contended that because Dennis testified in his deposition that Calm C's was not negligent and that the vessel was not unseaworthy these claims must be dismissed. Dennis retorted that Calm C’s argument ignored the unseaworthiness of the vessel on account of a lack of adequate charting depicting the pipeline. Dennis also argued that Weeks was an agent of Calm C’s, and thus, the negligence of Weeks constitutes Jones Act negligence on the part of Calm C’s. The court agreed with Calm C’s that Dennis’s deposition testimony showed that, on the day of the explosion, nothing about the condition of the vessel caused Dennis any concern. In response to later questions in the same deposition asking whether Calm C's or its owner and president could have done anything different to prevent the explosion, Dennis added nothing to his testimony. The court went on to note that it had previously found that whether the chart on the vessel was timely updated was immaterial to the unseaworthiness claim, as it was an undisputed fact that the pipeline was marked on the NOAA chart prior to the explosion. Calm C’s motion for summary judgment was granted and Dennis’s negligence and unseaworthiness claims against Calm C’s were dismissed with prejudice. (USDC EDLA, September 30, 2011) 2011 U.S. Dist. LEXIS 113787

MCORPEN DEFEATS ANOTHER LYING SEAMAN (CONT.)
MOBLEY V. DANIELLE MARINE TOWING, II, LLC

Jimmy Mobley was employed as a relief captain aboard a vessel owned and operated by Danielle Marine Towing, II, LLC. Mobley claimed that he slipped and fell on the vessel's main deck after descending a flight of stairs, allegedly sustaining injuries. Mobley filed suit against Danielle Marine alleging that his injuries were caused by Danielle Marine's negligence and that the vessel’s unseaworthiness, because of the condition of non-skid material on the main deck. Mobley also made a claim against Danielle Marine for maintenance and cure but, in an earlier decision, upon a motion for summary judgment filed by Danielle Marine, the court found that Mobley was not entitled to maintenance and cure because he willfully concealed a prior back injury in his job application, the concealment was material to Danielle Marine's decision to hire him, and his current injury is related to the prior concealed injury [see February 2011 Longshore Update]. At a bench trial on Mobley’s remaining causes of action, an expert in marine safety for Danielle Marine opined that the amount of non-skid material on the main deck of the vessel was adequate. Additionally, a deckhand on the vessel testified that regular applications of non-skid material on the main deck were accomplished. The court concluded the testimony established that there was a sufficient amount of non-skid material on the vessel's main deck at the time of the accident, Danielle Marine was not negligent in its application of the non-skid material on the vessel's main deck, and the vessel was not unseaworthy. Mobley's remaining causes of action were dismissed with prejudice. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 113059

A "PERIL OF THE SEA" AGAINST WHICH ORDINARY CARE CANNOT GUARD
FULTON V. REBECCA IRENE VESSEL, L.L.C.

Eugene Fulton brought his seaman's injury action alleging that he injured his right knee while working aboard a vessel owned by Rebecca Irene Vessel, L.L.C., (RIV) while the vessel was on a fishing voyage. Fulton claimed he injured the knee while jumping to deck out of the way of a swinging crab pot, yet he failed to report the incident at the time it allegedly occurred. Fulton eventually underwent an arthroscopic partial menisectomy. RIV denied liability for Fulton’s injuries. Following a three-day bench trial, the court found that Fulton had not met his burden of proving, by a preponderance of the evidence, that RIV was negligent. The procedures used aboard the vessel for handling the crab pot were consistent with practice throughout the trawling industry and were safe under usual conditions, including heavy seas or winds of forty miles per hour. The wave that lifted the crab pot up and carried it over the rail, causing it to swing toward Fulton, was a highly unusual and unforeseen event over which RIV had no control. As such, it was a "peril of the sea" against which ordinary care and prudence cannot guard. The court further found that Fulton failed to meet his burden of demonstrating, by a preponderance of the evidence, that there was an unseaworthy condition on the vessel. The court concluded, as a matter of law, that the crab pot which came back over the rail did not represent an unseaworthy condition on the vessel. The court Found in favor of RIV on all Fulton’s claims and awarded court costs to RIV. (USDC WDWA, October 25, 2011) 2011 U.S. Dist. LEXIS 123354

DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN [KINCHEN](CONT.)
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.

Jacob Kinchen was an ironworker employed by Boh Bros. to work on a bridge under construction, who was allegedly injured when a crew boat in which he was 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. Kinchen filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewit Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for the boating accident and the resulting injuries. The trial was bifurcated on liability and damages and, in an earlier decision [see July 2011 Longshore Update] the court found the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires on the crew boat 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. This part of the trial was to determine Kinchen's damages. The court initially noted that, on the date of the accident, Kinchen’s torso hit the crew boat's steering column and his face went through the front windshield, causing him to sustain severe facial lacerations that exposed facial tissue and the bony skeleton. Kinchen also had intraoral lacerations and avulsed teeth. At the hospital Kinchen was diagnosed with: (1) multiple complex and severe lacerations to his face, lips and oral cavity; (2) fractured nose and septum; (3) multiple avulsed and broken teeth; and, (4) multiple lacerations and contusions to his shoulders, knees, arms, wrists, and chest. Kinchen's facial lacerations required approximately 700 to 800 stitches, resulting in permanent scars. Kinchen also had to undergo emergency surgery to place a stent in his ureter between his kidney and bladder to relieve renal swelling. Kinchen testified at trial that he was unable to talk after the allision because his face was literally torn off and that his physician has told him that the numbness in his face is permanent. Kinchen testified that he suffered emotional pain as a result of the accident and that his wife could not look at him when she arrived at the hospital after the accident, and that her emotional reaction adversely affected him. After hearing all the evidence on damages, the court awarded total damages of $1,167,817, subject to a reduction for Kinchen’s 50% fault. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 112464

DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN [ABSHIRE](CONT.)
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.

Lary Scott Abshire was an ironworker employed by Boh Bros. to work on a bridge under construction, who was allegedly injured when a crew boat in which he was 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. Abshire filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewit Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for the boating accident and the resulting injuries. The trial was bifurcated on liability and damages and, in an earlier decision [see July 2011 Longshore Update] the court found the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires on the crew boat 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. No fault was attributed to Abshire. This part of the trial was to determine Abshire’s damages. Following the accident, Abshire was diagnosed with left sacral fractures, left pelvis fractures, thoracic lumbar spine injuries, a partially collapsed lung, crushed testicles, and bruises and abrasions. Abshire later underwent surgery to repair his fractured sacrum and pelvis. Abshire’s treating orthopedist testified that Abshire will likely have chronic back pain requiring treatment for the remainder of his life. His restrictions included avoiding lifting over 30 or 40 pounds, twisting or bending, climbing stairs or ladders, or working at heights. Abshire had also been treated by a clinical and medical psychologist for mental and emotional issues related to the accident. After hearing all the evidence on damages, the court awarded total damages of $4800,438. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 113429

ORDER DENYING ARBITRATION NOT BE SUSTAINABLE ON ANY GROUND (CONT)
JIMENEZ V. WEEKS MARINE, INC.

Jose Jimenez was allegedly injured in a fall from a compressor on a deck barge in a shipyard during the course and scope of his employment with Weeks Marine. Several days after the injury, Jimenez executed a Claim Arbitration Agreement in which he agreed to arbitrate any claims arising from his injury in exchange for Weeks Marine agreeing to advance certain sums to Jimenez. Two months after the incident giving rise to his injury, Jimenez brought suit against Weeks under the Jones Act and general maritime law and refused Weeks’ demand to submit the claims to arbitration, although he continued to accept payment of advances under the Agreement. Weeks Marine filed a motion to compel arbitration in the trial court, which denied the motion after briefing and a hearing. Weeks then sought mandamus relief from the appellate court, which rejected Jimenez’s arguments [see January 2008 Longshore Update]. With respect to Jimenez’s defense of procedural unconscionability, the appellate court concluded that the trial court was required to hold an evidentiary hearing. The trial court conducted an evidentiary hearing and denied Weeks’ first amended motion to compel arbitration, concluding that the Agreement was invalid because it is procedurally unconscionable and Weeks procured it by use of duress. On mandamus appeal, the appellate court held that the trial court abused its discretion in denying Weeks’ motion to compel arbitration. The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate its order and compel arbitration of Jimenez’s claims [see November 2009 Longshore Update]. The arbitral panel determined that Weeks was liable for Jimenez’s injuries, but reduced the award by half for Jimenez’s contributory negligence. The panel did not, however, award Jimenez prejudgment interest. Jimenez appealed the arbitral panel's exclusion of prejudgment interest without success. Jimenez next moved to enforce the arbitration award in state court, again asserting that the arbitration award should have included an award of prejudgment interest. The court denied Jimenez’s motion. Jimenez then filed the instant action in Federal court, entitled Motion to Enforce the Arbitration Award in Full and Ancillary Complaint, again asking this court to amend the arbitration award to include prejudgment interest, post-judgment interest, costs, and attorney fees. After reviewing the relevant case law, the parties' arguments, and their supporting evidence, the court concluded that the question of prejudgment interest, attorney fees, interest, and costs was properly submitted to the arbitrators. The arbitration agreement in question contained a broad arbitration clause, providing that any dispute arising from the contract would be submitted to arbitration. The court held that the arbitration panel was deemed to have considered the issue of prejudgment interest, attorney fees, interest, and costs and its declination to include an award of same was a determination on the merits, which the court could not disturb. The court went on to point out that, even if it had the ability to grant the relief sought, Jimenez would still be prohibited from receiving an award of pre-judgment interest. The court found that, since the recovery of prejudgment interest is not permitted under FELA, then it cannot be permitted under the Jones Act either. Accordingly, the court held that Jimenez was not entitled to an award of prejudgment interest. Jimenez’s Motion to Enforce Arbitration Award in Full and Ancillary Complaint was denied with respect to the issues of prejudgment interest, costs, and attorney fees. (USDC SDTX, October 14, 2011)
Updater Note: This is one case that does not stand for the proposition that arbitration is cheaper than litigation. Thanks to our team at Brown Sims of Houston, TX for putting up a great defense to the bitter end.

IF YOU WANT MAINTENANCE & CURE, PROVIDE AN HONEST MEDICAL HISTORY
WILKERSON V. LOUPE CONSTRUCTION AND CONSULTING COMPANY, INC.

Daniel Clay Wilkerson brought suit under the Jones Act and general maritime law against Loupe Construction for injuries he allegedly sustained while employed by the company as a vessel Captain. Specifically, Wilkerson alleged that while he was serving as captain, his vessel capsized, causing alleged injuries to his back, neck, spine, and mind. Wilkerson filed a motion requesting an expedited trial seeking judgment against Loupe for maintenance and cure, including attorneys' fees and compensatory and punitive damages arising out of the denial of maintenance and cure. In response, Loupe filed a motion for summary judgment on the maintenance and cure issue, asserting a defense under McCorpen based on Wilkerson's asserted withholding of material information about his medical condition when he completed two personal history questionnaires as part of his application for employment with Loupe. Discovery in the case revealed Wilkerson had suffered ruptured discs in his neck and back in a 1999 motor vehicle collision; had chronic neck and back pain; and had been on prescription medication for the conditions when he began his employment with Loupe. On the Personal Health History questionnaire, that Wilkerson completed when he was hired by Loupe, he denied any prior treatment for these conditions, denied being on medication, and signed a statement attesting to the truth of his declarations. The court found that Loupe had conclusively shown that Wilkerson intentionally misrepresented and concealed medical facts when he applied for employment, satisfying the first prong of the McCorpen defense. Since Loupe offered testimony that Wilkerson would not have been hired had he disclosed truthfully his medical conditions and prescription drug regimen, the court found Loupe had also satisfied the materiality criterion in the analysis. Finally, the court found that Wilkerson's alleged work injuries were to his back and neck — the same body parts in which he suffered ruptured discs in a 1999 accident and chronic pain since, satisfying the causal connection criterion. Instead of responding to the substance of Loupe's arguments, Wilkerson argued that Loupe did not plead the McCorpen defense affirmatively, thereby waiving its right to assert the defense. The court rejected this argument as meritless. The court also rejected Wilkerson’s objection to the authenticity and use of the alleged employment records from Loupe. The court granted Loupe’s motion for summary judgment. (USDC EDLA, October 18, 2011) 2011 U.S. Dist. LEXIS 120495

SUMMARY JUDGMENT DENIED ON URINATION-RELATED INJURY (CONT.)
WALDSACHS V. INLAND MARINE SERVICE, INC., ET AL.

William Waldsachs was an employee of Inland Marine Service Inc. After a thirty-day term of service on one of Inland Marine's barges, Waldsachs disembarked several hundred miles upriver from his home. From there, Waldsachs boarded a van, owned by C/C Transport, Inc., and which was to drive him home. On the trip home, Waldsachs requested the driver to pull over so that he could urinate. Waldsachs exited the van and proceeded to walk into an open field that abutted the roadway to do his business. While crossing the field, Waldsachs alleges the he stepped into a hole that had been obstructed by debris and fractured his left tibia and fibula. Unable to stand, Waldsachs crawled back to the van and was driven for treatment at a nearby hospital. The injury later required surgery. Waldsachs filed an action under the Jones Act against Inland Marine and common law negligence against C/C, alleging that Inland Marine and its agent, C/C, were negligent in transporting him. In an earlier ruling, the court denied C/C’s motion for summary judgment, finding it had a duty as a common carrier to stop at a safe location for Waldsachs to urinate and the issue of causation was one best resolved by a jury [see October 2011 Longshore Update]. Inland Marine now moves for summary judgment, arguing that C/C is not its agent or employee and therefore it cannot be held liable for their driver’s actions. Inland Marine further maintained Waldsachs could not establish a breach of duty under the Jones Act because there was no duty to keep him safe during the trip between the job site and home. The court found that Inland Marine's arguments ignored the majority of legal decisions that have interpreted the breadth of "operational activities," and finding that transporting seaman or railroad employees to and from a job site constitutes an operational activity. The court also found that Inland Marine had an express contractual agreement with C/C to transport its crew. Waldsachs did not select the transportation company or pay them for the trip; instead, Inland Marine offered the service to its employees. The court concluded that the transportation of crew between ports was an operational activity as envisioned under FELA. Consequently, the Court found that Inland Marine could be held vicariously liable for C/C's negligence under the principles of agency, since C/C and its driver were acting as agents for Inland Marine during the transport of Waldsachs. Since there was sufficient evidence for a reasonable jury to determine C/C and its driver did not provide a safe workplace or consider the obvious dangers of stopping on the side of major interstate for passengers to urinate, that court concluded that Inland Marine's statements about "notice" are unavailing since its agent knew or should have known of these dangers. This clear departure from the duties of a common carrier, coupled with the low evidentiary threshold required by Jones Act claims to reach the jury, compelled the court to deny summary judgment for Inland Marine. (USDC WDKY, October 7, 2011) 2011 U.S. Dist. LEXIS 116192

PAYMENT OF CURE DOES NOT EQUATE TO AN IME
Y&S MARINE, INC. V. MAZA

Y&S Marine, Inc. employed Travis Maza as a deckhand on one of its vessels. Maza was allegedly injured when lifting either a trash can lid or a garbage bag and claimed to have experienced low back pain. Maza was originally diagnosed with a back strain and released to duty, as tolerated. Instead, Maza returned home and doctor shopped until he found a doctor that recommended surgery. Maza then retained counsel and filed his Jones Act suit. Given the differing opinion of the doctors that Maza had already seen, Y&S asked Maza to attend an IME, but counsel for Maza refused Y&S's request on three separate occasions – even after Y&S sought a declaratory judgment – on the ground that Maza's examination with one of the initial physicians that Maza saw constituted Y&S's IME. Y&S moved to compel Maza’s attendance at an IME, arguing that Maza's physical condition was in controversy because Maza's own two experts expressed contradictory opinions, and Y&S asserted its right to reconcile the opinions through an IME by its own expert. Y&S also maintained that it is entitled to an IME because Maza failed to report a pre-existing back condition on his employment form and it was entitled to investigate a potential McCorpen defense. The court concluded that there was no question that Maza's physical state was in controversy and found that Y&S had shown good cause for the requested IME. The court found no evidence that Y&S had previously had an IME under FRCP 35 and held that the prior treatment that Maza had, before litigation began, was part of Y&S's cure obligation, not an IME. The court granted Y&S’s Motion to Compel Maza to attend an Independent Medical Examination. (USDC EDLA, October 11, 2011) 2011 U.S. Dist. LEXIS 117119

UNSEAWORTHINESS CLAIM CAN’T PROCEED AGAINST NON-OWNER OF VESSEL
ALVARADO V. DIAMOND OFFSHORE MANAGEMENT CO.

Monolito Alvarado allegedly sustained injuries while employed by Diamond Offshore Management Co. as a seaman onboard a Diamond Offshore vessel. Alvarado filed suit seeking to recover damages for alleged Jones Act negligence, unseaworthiness, and maintenance and cure, asserting in his Complaint to have experienced a lifting accident which resulted in serious painful injuries to his shoulder and other parts of his body. In its Answer, Diamond Offshore denied liability and subsequently moved for summary judgment. Diamond Offshore contended that both Alvarado’s Jones Act and unseaworthiness claims fail as a matter of law because the amount that Alvarado was required to lift — 50 to 60 pounds — was not unreasonable. Secondly, Diamond Offshore maintained that it is not the owner of the rig to which Alvarado was assigned. Therefore, Alvarado’s unseaworthiness claim should be dismissed. In response, Alvarado simply argued that material fact issues remained, with respect to his negligence claim, that are properly decided by a jury. With respect to Diamond Offshore’s arguments regarding the unseaworthiness claim, Alvarado did not provide a response. The court found that Alvarado had raised factual issues to rebut Diamond Offshore’s argument that he unable to show the negligent conduct required to maintain a Jones Act claim. Alvarado asserted that he would present evidence at trial, including the testimony of a health and safety expert, to prove that Diamond Offshore did not meet the standard of care required of a Jones Act employer, arguing that a safer method could have been used for material handling equipment and Diamond Offshore failed to properly train him in proper lifting techniques. Therefore, the court concluded that the issues of fact and law were too intertwined to grant summary judgment on the negligence claim. However, the court granted summary judgment on the unseaworthiness claim, holding that Alvarado had failed to offer any evidence that Diamond Offshore owned the vessel in question. Therefore, despite drawing all inferences in favor of the non-moving party, the court had to conclude that Diamond Offshore is not the owner of the vessel at issue, and that an unseaworthiness claim may not be maintained against it. Diamond Offshore's Motion for Summary Judgment was denied in part and granted in part. (USDC EDLA, October 17, 2011) 2011 U.S. Dist. LEXIS 119629

ARBITRATION SEEMS TO BE GETTING EASIER TO ENFORCE
HODGSON V. ROYAL CARIBBEAN CRUISES, LTD.

Adan Hodgson was employed by Royal Caribbean Cruises, Ltd. As a seaman on one of Royal’s cruise liners. While working for Royal, Hodgson was allegedly injured and claimed that he sought treatment for his alleged injuries ,that Royal did not provide. Hodgson filed his Jones Act suit in state court. Royal removed the case to federal and sought to compel arbitration. Hodgson moved to remand the case back to state court. Because the arbitration agreements incorporated into Hodgson's employment agreements were found to be enforceable by the court, Royal’s Motion to Compel Arbitration was granted and Hodgson's Motion to Remand was denied. (USDC SDFL, October 19, 2011) 2011 U.S. Dist. LEXIS 121034

SIGNIFICANT RULINGS IN HORIZON DEEPWATER LITIGATION
IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON" IN THE GULF OF MEXICO

Judge Barbier issued this order in connection with the B3 Master Complaint, one of several Master Complaints in this multi-district litigation, involving the Deepwater Horizon spill and ensuing litigation. Among Judge Barbier’s rulings were the following: 1. State-law claims were held to be preempted by maritime law and dismissed. 2. Derivative immunity and preemption were not established on the face of the Complaint, but were held to be preserved. 3. The claims of Plaintiffs who had not alleged an "injury" as recognized in Hagerty v. L & L Marine Services, Inc., 788 F.2d 315, 319 (5th Cir. 1986), were dismissed. 4. Medical monitoring costs were held to be available as a form of damages under maritime law. 5. Negligence per se claims were dismissed; but Plaintiffs were advised they could amend the B3 Master Complaint if they wished to assert a more definite statement of the claim for negligence per se. 6. Plaintiffs who are seamen were held not entitled to punitive damages. 7. Claims for battery and nuisance asserted under maritime law were dismissed. (USDC EDLA, September 30, 2011) 2011 U.S. Dist. LEXIS 113424
Updater Note: Although Judge Barbier expressed some doubt on his denial of punitive damages to seamen, given the Supreme Court's recent decision in Atlantic Sounding Co. v. Townsend, he nevertheless noted that he could not assume the Fifth Circuit has changed its position on claims falling outside the scope of Townsend.

NO OPPOSITION, NO PROBLEM
VOISINE V. ODEBRECHT CONSTRUCTION, INC.

Sean Voisine was working as a Jones Act seaman employed by Odebrecht and was assigned to work as a heavy equipment operator aboard its spud barge. While he was performing maintenance on a crane, Voisine was allegedly struck by a counter weight, knocking him to the deck and causing alleged injuries to his head, jaw, neck and shoulder. Voisine filed suit alleging both Jones Act and general maritime claims. In an amended complaint, Voisine specifically invoked the court's admiralty jurisdiction under FRCP 9(h). In its answer, Odebrecht demanded a trial by jury on all issues. Voisine moved to strike Odebrecht’s jury demand, noting that the Federal Rules of Civil Procedure do not permit for a trial by jury in an admiralty case. Odebrecht did not oppose the motion, which was granted by the court. (USDC EDLA, October 26, 2011) 2011 U.S. Dist. LEXIS 123980

Quotes of the Month . . . “The man who trims himself to suit everybody will soon whittle himself away.”--Charles Schwab

“If you tell the truth, you have infinite power supporting you; but if not, you have infinite power against you.”--Charles Gordon

“Chains of habit are too light to be felt until they are too heavy to be broken.”--Warren Buffett


Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

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