December 2011 Longshore Update

December 2011

Notes From Your Updater - The United States Supreme Court will hear oral argument in the case of Roberts v. Sea-Land Services , Docket 10-1399, on Wednesday, January 11, 2012. It will be the second case argued. The question is limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded. You may use these links to review the Petition for Certiorari, the Brief in Opposition, and the Reply Brief in the case.

Congratulations to Miranda Chiu. She has just been officially appointed the Director, Division of Longshore and Harbor Workers’ Compensation, Office of Workers’ Compensation Programs, in the U.S. Department of Labor. Miranda has been serving as Acting Director since the retirement of Mike Niss, and this announcement makes it official. I am informed that there was some pretty stiff competition for the position, which should make the appointment even more rewarding. Miranda previously served as the Chief, Branch of Policies and Procedures. She had actually put in for retirement before Mike Niss, but then agreed to stay on as temporary Director. Now that the appointment is official, we hope she stays on for some time.

I have also learned that Carl Abildso in the Longshore Division’s National Office has retired. Anyone who’s ever paid a Special Fund assessment bill or put a case into the Special Fund knows Carl. Have a great retirement Carl.

A petition for certiorari has been filed with the U.S. Supreme Court in the case of Green v. United States of America, Docket No. 11-403 [see April 2011 Longshore Update]. The question presented to the Court is : Whether under the Suits in Admiralty Act (“SAA”) and the Public Vessels Act (“PVA”), the United States is subject to the same liability in-rem for the negligence of those conducting its business as agents for the vessels it owns, as would attach to a private vessel owner, i.e., according to the principles of law and the rules of practice applicable in like cases between private parties, as provided by statute. No response to the petition has been filed.

On November 28, 2011, the U.S. Supreme Court denied the petition for certiorari filed in the case of Wheeler v. Newport News Shipbuilding and Dry Dock Company, et al, Docket No. 11-107. This was the case in which the 4th Circuit asked for additional briefing after oral argument on the issues of legislative history and judicial deference to the Director, and finally decided that, at least under section 22 of the LHWCA, “compensation” does not mean medical payments paid under section 7 of the Act.

On November 16, 2011, the 11th Circuit Court of Appeals republished its recent opinion in Boroski v. Dyncorp International, et al. If my readers will recall, this opinion was originally filed and published on October 27, 2011 [see November 2011 Longshore Update]. The only change I could find from the originally published opinion was a minor change to footnote 5 and a couple citation changes. I’m not sure if the court forgot it had already published the opinion or whether they are just trying to get the attention of the U.S. Supreme Court with this amicus opinion, before the Supremes hear the Roberts case.

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

Circuit Court Opinion
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 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]. While Caleb Brett's subsequent appeal of this decision was pending before the Fifth Circuit, Caleb Brett’s insurer attempted to appeal the Board’s decision, but mistakenly filed its Petition for Review with the Board, instead of with the court of appeals. The insurer consequently failed to file a proper timely appeal of the BRB order within the applicable sixty-day window. Meanwhile, the insurer also refused to reimburse the unpaid bills for the adjunct therapies. In response, Carter petitioned the OWCP district director for a supplemental order declaring default under the 1996 continuing compensation order. Perhaps convinced by the insurer’s argument, that the BRB’s decision was not an award of benefits, Carter submitted a filing to the Board entitled “Motion for Clarification,” seeking confirmation that the BRB’s initial order had in fact been a final award of compensation. In a subsequent order the Board responded to Carter’s motion by clarifying that a reversal of the ALJ’s denial of medical benefits constituted an award of medical benefits. Carter ultimately obtained a Supplemental Order Declaring Default in the amount $3,220.20 from the District Director, which he had enforced by the district court [see November 2011 Longshore Update]. Caleb Brett and its insurer filed a timely petition for review of the BRB’s second order of clarification. The appellate court held that it lacked jurisdiction to consider the appeal, because the petitioners were clearly seeking review only of the BRB’s original order reversing the ALJ’s decision. Yet, they failed to advance any argument as to how the appellate court could properly consider the merits of the original BRB order. Either that order was a final order within the meaning of Lazarus, in which case it became unreviewable sixty days after it was issued, or neither the First nor the Second Board Order was a final order. The appellate court concluded that there was no route by which it could reach the merits of the BRB’s original order. The petition was dismissed for lack of jurisdiction to consider the requested relief under §21(c) of the LHWCA. (5th Cir, November 15, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 22965
Updater Note: It is really a shame that this case was not heard on the merits, because of an appellate screw up by the attorney representing the employer and its insurer. I will say it again . . . the most atrocious fact about this case is that the claimant is still getting “massage therapy” two decades after his original injury. The whole idea of palliative care like this being “reasonable and necessary” medical treatment under the Act is outrageous and needs to be reexamined by the courts. And people wonder why we can’t afford universal health insurance in this country.

IS APPLICABLE SUBSTANTIVE LAW FEDERAL MARITIME LAW OR OCSLA?
HAMM V. ISLAND OPERATING COMPANY, INC., ET AL.

Circuit Court Opinion

Rodney Hamm allegedly suffered injuries to his back and hips while working on the deck of a vessel owned and operated by his employer, Rodan Marine Services II, LLC. At that time, the vessel was delivering equipment to and picking up equipment from a permanent oil platform off the coast of Louisiana, on the Outer Continental Shelf. A crane, operated by Island Operating Company, Inc. (IOC), was moving equipment to and from the platform and the vessel. Hamm and a co-employee were helping to guide the equipment and to connect it to or disconnect it from the crane. While he was performing this task, a cargo basket became caught on the hook of the crane and swung toward Hamm, pinning him between the cargo basket and the side of the vessel. Hamm sued IOC and Rodan. defendant crane operator and defendant employer. The trial court denied IOC’s motion to dismiss or alternatively for summary judgment, based on Louisiana's one-year limitations period, which the operator asserted was the applicable substantive law under the Outer Continental Shelf Lands Act (OCSLA). IOC and Rodan filed an interlocutory appeal of the trial court’s denial of its motion, arguing that Louisiana's substantive law applied to Hamm’s claims against it because OCSLA adopted the law of the adjacent state as the governing law for the Outer Continental Shelf. Hamm did not contest that Louisiana law applied if OCSLA was the governing substantive law. Hamm countered, however, that the district court correctly held federal maritime law to be the applicable substantive law, and that under federal maritime law, the seaman had three years within which to file suit. The appellate court concluded that the district court correctly held that federal maritime law was the applicable substantive law. The location element was satisfied because the injury was suffered on the deck of a vessel afloat on navigable water. The connection element was met because the incident was potentially disruptive of maritime commerce. IOC had no right to a jury trial because the seaman elected a non-jury trial under FRCP 9(h). The district court's order was affirmed. (5th Cir, November 16, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 22984

OCSLA DOES NOT EXTEND THE REACH OF UNITED STATES LAW TO OCS VESSELS
BROWN, ET AL V. OFFSHORE SPECIALTY FABRICATORS, INC., ET AL.

Circuit Court Opinion

The Fifth Circuit Court of Appeals has rendered an opinion in a closely watched case involving a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs contended that the defendants maintained a hiring scheme to employ foreign workers on the Outer Continental Shelf, employing workers who are neither citizens nor workers authorized to be in the United States, arguing that this conduct violates the Immigration and Nationality Act (INA), and therefore qualifies as racketeering activity. The plaintiffs further assert that this unlawful hiring scheme results in depressed wages and degraded working conditions to the detriment of U.S. citizens and legal residents who work on the Outer Continental Shelf. The plaintiffs alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Outer Continental Shelf Lands Act (OCSLA). Under the OCSLA, the plaintiffs pursued both a personal right of action for economic damages and an enforcement action under the OCSLA's citizen suit provision for injunctive relief. The district court eventually disposed of all of the plaintiffs' claims, dismissing some and granting summary judgment against others. The court then entered a final judgment dismissing all claims. The plaintiffs appealed contending that the district court erred in granting summary judgment because, regardless of the free-floating character of the defendants vessels, the INA still applies to their conduct, because it is triggered when foreign workers step foot on U.S. soil before being taken to the Outer Continental Shelf, and remains effective even if those workers perform their work on a free-floating vessel. The appellate court disagreed with plaintiffs’ argument, holding instead that OCSLA does not extend the reach of United States law to the defendants' vessels and, therefore, defendants do not violate RICO because the law that would make their conduct racketeering activity—the INA—does not apply in the place where that conduct occurred, namely vessels floating on the waters of the Outer Continental Shelf. The plaintiffs further contended that the exemptions the defendants possess to the OCSLA manning requirements do not shield them from RICO liability because those exemptions were fraudulently obtained. However, the appellate court concluded that the plaintiffs failed offer any evidence to contest the validity of the exemptions. The appellate court next turned to plaintiffs’ contention that the OCSLA creates a private right of action for damages. The appellate court rejected plaintiffs’ contention, holding, instead, that the plaintiffs cannot state a claim for a private right of action for damages under the OCSLA, and the district court's dismissal of this cause of action was proper. The appellate court also rejected plaintiffs’ contention that the district court erred in disposing of their OCSLA enforcement action based on their failure to give proper pre-suit notice to the defendants. Questions of prejudice and fairness notwithstanding, the appellate court found that no plaintiff gave the required notice before bringing this action. The appellate court held that deficient attempts at notice given by two former plaintiffs, neither attempt occurring before the original complaint was filed, could serve to anchor all of the plaintiffs' claims. Because no plaintiff gave the type of notice required by the OCSLA, we need not reach the plaintiffs' argument that notice by one plaintiff can serve as notice for all. Finally, the appellate court found that plaintiffs did not have standing to bring an OCSLA enforcement action, because the plaintiffs' complaint failed the redressability element. Enjoining the defendants' conduct, as the plaintiffs request, would not redress the wages they already lost or the working conditions they already endured. The plaintiffs thus lack constitutional standing, and the district court's dismissal was proper. The judgment of the district court was affirmed in all respects. (5th Cir, November 23, 2011) 2011 U.S. App. LEXIS 23653

WHO CLIMBS A JACOB’S LADDER WITH A CLIPBOARD? (CONT)
MCCULLER V. NAUTICAL VENTURES, LLC, ET AL.

Benjamin McCuller was employed by Halliburton Energy Services at its marine terminal, where and offshore supply vessel, owned and operated by Nautical Ventures was docked to take on dry cement. McCuller's job required him to board the vessel to attach hoses to the vessel's manifold to accomplish the cement loading. Vessel access was accomplished by means of the vessel's Jacob's ladder which was secured and put in place by the vessel's crew. McCuller used the Jacob's ladder several times without incident but on his last descent, while he was carrying a clipboard in one of his hands, one of the rungs allegedly broke and he fell some five feet to the dock and allegedly sustained injuries to his back and knees. McCuller and his wife (jointly referred to as McCuller) filed suit against the vessel owner under general maritime law and vessel negligence under §905(b) of the LHWCA. Following a bench trial, the court declined to find it more likely than not that the damaged condition of the ladder would have been open and obvious to McCuller, who was climbing the ladder. It was not his employer's ladder. He had no duty to conduct a detailed inspection of the ladder and would not have known what to look for if he had inspected it. However, the court did find that McCuller violated Halliburton safety procedure and defied common sense by climbing the Jacob's ladder with a clipboard in his hand. The court apportioned fault for the accident by attributing 70% to Nautical Ventures and 30% to McCuller. The court awarded McCuller and his wife $1.8 million dollars in damages (plus prejudgment interest on all past damages) reduced by McCuller’s 30% contributory negligence [see November 2009 Longshore Update]. McCuller appealed the district court’s finding of comparative fault and three aspects of the district court’s damages award, and Nautical cross appealed the district court’s finding of liability. The appellate court affirmed the district court’s findings of liability and comparative fault, and the district court’s decision not to award damages for the loss of household services and the cost of in vitro fertilization. However, the court vacated and remanded, in part, the district court’s damages award in respect to expenses for the McCullers’ future medical needs [see August 2011 Longshore Update]. On remand from the 5th Circuit, McCuller moved for a new trial on the issue of future medical expenses, or alternatively, to increase future medical compensation. The court initially acknowledged the 5th Circuit’s remand instructions, that it found the award of $100,000 for future medical expenses "insufficiently particular." McCuller argued that there was neither statutory nor jurisprudential prohibition against considering the events which have occurred since his original trial and contended that the court can, and should, address the known changes to his medical costs by considering new and available evidence, and that equity weighs in favor of considering new evidence now available. Nautical Ventures opposed this motion, arguing that re-opening testimony was not warranted because the already existing record was sufficient to determine future medical expenses. It also maintained there is no jurisprudence supporting the taking of testimony on alleged post-trial changes in circumstances, and argued the court should only review the original trial record in calculating McCuller’s award for future medical expenses. The court initially noted that the appellate court’s partial remand instructed that "the district court, may, of course, make such further findings and conclusions as it may see fit, and may, inits discretion, take further evidence as to damages, or base its findings and conclusions upon the record already made." In McCuller’s memorandum in support of his motion, he asserted that he had to undergo two unanticipated surgeries for injuries stemming from the accident, that his long-term pharmaceutical needs have been more clearly established. The court concluded that consideration of the recent developments would assist in determining a fair and equitable award for future medical expenses. The court also noted that Nautical Ventures would be given the opportunity to rebut any new evidence. While acknowledging that the judicial system values the finality, the court found that in McCuller’s case the interests of justice weigh more heavily in favor of reopening the case for further testimony in order to determine a more accurate and fair award. The court granted the motion for a new trial on the issue of future medical expenses. (USDC EDLA, November 23, 2011) 2011 U.S. Dist. LEXIS 135309

DON’T TRAMPLE ON MY RIGHTS UNDER THE LHWCA
BICKHAM V. ATP OIL & GAS CORP.

Wilbur H. Bickham was employed as an operator by Baker/MO Services, Inc., who in turn was contracted to work for ATP Oil and Gas Corp. on an offshore platform. Bickham allegedly sustained injuries when he, suddenly and without warning, slipped-and-fell while descending stairs, causing him to sustain injuries to his knee, lower back, and opposite leg. Bickham claimed that his accident was the result of fatigue from working an excessive number of hours and lack of adequate lighting. Bickham filed suit against ATP pursuant to the Outer Continental Shelf Lands Act (OCSLA). ATP filed an Answer, denying liability and raising a number of affirmative defenses. ATP also filed a jury trial demand. Baker’s workers’ compensation insurer filed a Complaint of Intervention, alleging it has paid Bickham benefits and medical expenses under the LHWCA, which are continuing, and seeking to enforce a compensation lien on any recovery by Bickham. Both ATP and Bickham filed motions for summary judgment seeking dismissal of the insurer’s intervention claims, arguing that Louisiana law governs the present dispute, by virtue of the OCSLA and, because the insurer waived its right of subrogation against ATP in the Master Services Agreement (MSA) between it and Baker, the insurer had no legal right to recover any benefits it has paid to Bickham. The insurer argued the subrogation waiver was null and void under the Louisiana Oilfield Anti-Indemnity Act. Additionally, the insurer argued that, irrespective of the application of LOAIA, the LHWCA provide it with rights which would be diminished if the intervention was dismissed. ATP responded, claiming claims enforcement of the waiver was appropriate because despite sending a demand letter to Baker, it had not relied upon the indemnification clause in the MSA and had defended the suit on its own. As a threshold matter, the court initially found OCSLA applied and the applicable state law was that of Louisiana. For essentially the same reasons OCSLA was applicable, the LHWCA applied, governing workers' compensation subrogation rights and obligations under §933 of the Act. Citing the Fifth Circuit’s opinion in Hudson the court held that the LOAIA did not operate to void the waiver of subrogation, because ATP had defended the suit on its own after Baker had failed to provide a defense. Nevertheless, the court agrees with the insurer that, despite its enforceable waiver of subrogation, the insurer maintained certain rights under the LHWCA, which it was entitled to pursue through intervention. The motions for summary judgment were granted in part insofar as the insurer’s claims for subrogation rights and denied in part insofar as the insurer’s independent rights under the LHWCA. (USDC EDLA, November 23, 2011) 2011 U.S. Dist. LEXIS 135311

LHWCA CO-EMPLOYEE IMMUNITY PREVAILS
ATES V. B&D CONTRACTING, INC.

B&D Contracting, Inc., a labor personnel contractor, entered into a "Contract Labor Agreement" with VT Halter Marine, Inc., agreeing to provide personnel to satisfy certain labor needs of Halter. Masse Contracting, Inc., another labor personnel contractor, had entered into a similar "Contract Labor Agreement" with Halter, wherein Masse also agreed to provide laborers to Halter. Bram Ates, an employee of Masse, was assigned to work for Halter as a painter. An employee of B&D introduced combustible and explosive industrial solvent into an engine room aboard a tug under construction, which resulted in a flash fire in the tanks located under the engine room. The explosion caused two deaths and injured five individuals. Ates, one of the five injured, sustained severe burns which have required multiple skin-graft procedures. After the explosion, Ates received compensation and medical benefits, through Masse, under the LHWCA. Ates and his wife sued B&D, asserting claims for negligence; gross negligence; negligent hiring, retention, and training; grossly negligent hiring, retention, and training; and loss of consortium. B&D moved for dismissal of all claims on immunity grounds, arguing that Ates failed to produce sufficient evidence to establish tort liability because at the time of the accident in question, B&D’s nominal employee, responsible for the fire, was the borrowed employee of Halter and B&D was under no obligation to provide the employee, hired as an unskilled laborer, with specialized training to work at Halter. The court initially noted that the Fifth Circuit Court of Appeals has determined that §933 of the LHWCA is the exclusive remedy for on-the-job injuries and affords immunity from tort actions. B&D contended that there could be no dispute that Ates was Halter's borrowed servant under §905(a), and was currently receiving benefits under the LHWCA through his nominal employer Masse, which was his exclusive remedy. B&D also argued that because Ates and B&D’s nominal employee were co-employees of Halter, Ates was precluded from recovering from B&D under a common law tort cause of action. The court, after applying the nine Ruiz factors to the case, determined as a matter of law Ates and B&D’s employee were both considered the borrowed employees of Halter. Therefore, the court held B&D was immune under §905(a) and entitled to summary judgment on Ates’ claims. Ates argued that immunity under the LHWCA does not, and should not, bar his claims against B&D for negligent hiring and negligent failure to train, since the co-employee immunity under the LHWCA does not compel that a different claim against B&D for its own independent tort is barred. The court held that B&D was entitled to the same immunity afforded co-employees under the LHWCA, because the undisputed record evidence supported the conclusion that both were borrowed employees of Halter at the time of the accident. The court further found that Ates was unable to establish the existence of any duty or contractual obligation on the part of B&D to provide "skilled" or "trained" laborers to Halter. Therefore, Ates’ claims for failure to train and negligent hiring could not succeed as a matter of law. B&D’s motion for summary judgment was granted. (USDC SDMS, November 9, 2011) 2011 U.S. Dist. LEXIS 129679

SOME OWE A DUTY - SOME DO NOT
SMETANA, ET AL. V. APACHE CORPORATION, ET AL

Billy Smetana, an employee of Wise Well Intervention Services Inc., brought suit against several entities for injuries arising out of an accident aboard a well in the Gulf of Mexico, for negligence based on general maritime laws of the United States, §905(b) of the LHWCA, and Texas law as adopted by virtue of the Outer Continental Shelf Lands Act (OCSLA). Smetana sustained an injury to his lower left extremity when he fell while egressing the vessel onto a fixed platform via a gangway laid across the deck of the vessel to the platform. The overall objective of the project was to plug and abandon Apache's Well on the platform. The defendants named in Smetana’s suit included Apache Corporation, the time charterer, dock owner and platform owner; Montco Offshore, Inc., the vessel owner; Stokes & Spiehler Offshore, Inc. (S&S), the company to provide "company man services"; Tim McGilvray, the "company man" hired by S&S; and LIS Energy Services, Inc., the company to provide an offshore crew. At the time of Smetana's alleged injury, Montco was providing crane services and room and board to Apache's independent contractors. Montco moved for summary judgment, alleging no liability since it did not cause or contribute to Smetana's injury, and thus, did not violate any duty it may have owed to him. Smetana opposed the motion, contending that Montco is liable because it breached its duty to provide safe means of ingress and egress. The court initially found that Smetana was a passenger aboard the vessel he was on, not a member of the crew or longshoreman. Because Smetana was merely a passenger, the court concluded that the Kermarec standard of care was applicable. Applying the Kermarec standard, the issue presented was whether Montco breached its duty of reasonable care to provide Smetana with a safe means of ingress and egress of the vessel. Based on the undisputed facts, the court found Montco played a role in the placement of the gangway. Viewing the evidence in the light most favorable to Smetana, the court held that the record revealed that there remained genuine issues of material fact, especially given the evidence that Montco was involved in the placement of the gangway that ultimately led to Smetana's alleged injury. Montco’s motion for summary judgment was denied. (USDC WDLA, November 21, 2011) 2011 U.S. Dist. LEXIS 134369

SMETANA, ET AL. V. APACHE CORPORATION, ET AL

In a separate ruling in the same case reviewed above, the court granted Apache’s motion for summary judgment. Apache moved for summary judgment, arguing that Smetana could not prove that Apache exercised any control over the positioning of the vessel or gangway. Apache also argued that Texas’s Chapter 95 applies to Smetana’s case, which mandates that a property owner is not liable for the injuries to an independent contractor unless the property owner exercised or retained some control over the work and the property owner had actual knowledge of the danger and failed to adequately warn. Thus, even though Smetana was not injured while working on the well, but rather egressing the vessel, Chapter 95 applied. Apache emphasized the fact that it had no contract with McGilvray, who had input in the positioning of the vessel, and who Smetana argued was Apache’s "eyes, ears and hands" on the job site. Following a thorough review of the predominant case law and legislative history, the court held that the provisions of Chapter 95 were clearly applicable to the facts of Smetana’s case. The court rejected Smetana’s argument that Apache exercised and retained control over the job site through McGilvray, holding that was simply not the case. Apache contracted with S&S, who, in turn, sent McGilvray to do the work. While it is true that McGilvray was involved in the docking of the moor and placement of the gangway, the court found there was too much disconnect between Apache and McGilvray to hold Apache liable for his acts. Accordingly, Apache could not be found liable under Chapter 95 since Apache did not exercise or retain control over the work performed. Because Apache did not exercise or retain control through McGilvray, Smetana’s remaining theories of liability similarly failed. Viewing the evidence in the light most favorable to Smetana, the court concluded that the record failed to reveal any remaining genuine issues of material fact, especially given the evidence that Apache retained no control over the activities that led to Smetana's injury. Apache’s motion for summary judgment was granted. (USDC WDLA, November 21, 2011) 2011 U.S. Dist. LEXIS 134357

And on the Admiralty front . . .

HAPPY ENDING - SEAMAN SUES EMPLOYER - SEAMAN WINDS UP PAYING (CONT.)
DISE V. EXPRESS MARINE, INC, ET AL.

Circuit Court Opinion

Charles Dise worked for Express Marine, Inc. as an assistant engineer on a tug. While operating a skiff, to take draft readings, Dise crashed the skiff into a bulkhead of a railroad bridge, allegedly sustaining injuries as a result of the allision. Dise filed suit against Express Marine under the Jones Act and Express Marine filed counterclaims to recoup its accident-related costs. The court had previously granted summary judgment in favor of Express Marine on Dise’s negligence, unseaworthiness and maintenance and cure claims [see October 2009 Longshore Update]. The only remaining claim after the court granted summary judgment on Dise’s causes of action was Express Marine’s counterclaim for damages to the skiff in the amount of $3,254.96. Express Marine moved for summary judgment, arguing that its counterclaim is permitted under the Jones Act. Dise, however, asserted that the Jones Act bars employer-shipowners from bringing counterclaims against employee-seamen. The court pointed out that, while the Fourth Circuit has not yet ruled on whether the Jones Act precludes a shipowner from filing a counterclaim against an employee for property damage, it had ruled that FELA does not preclude such a counterclaim by a railroad employer. Rejecting the remainder of Dise’s arguments, the court held that Express Marine’s counterclaim was permitted and granted summary judgment in favor of Express Marine on its counterclaim for damages to the skiff, measured as the cost of repairs in the amount of $3,254.96 [see July 2010 Longshore Update]. Dise appealed the district court's grant of summary judgment in favor of Express Marine on his claims for negligence under the Jones Act, unseaworthiness under the general maritime law, and vicarious liability under the Jones Act for negligent provision of medical care, as well as Express Marine’s counterclaim for damage to the skiff, arguing that the evidence established genuine disputes of material fact with respect to several theories of negligence. However the appellate court observed that the district court had addressed each of Dise's theories of negligence in turn and, finding no genuine disputes of material fact, concluded that Express Marine was entitled to judgment as a matter of law. Having had the benefit of oral argument and having carefully reviewed the briefs, record, and controlling legal authorities, the appellate court reached the same conclusion. The appellate court also rejected Dise’s theories of unseaworthiness, finding that he failed to demonstrate that any of the alleged conditions was the proximate or direct and substantial cause of his injury. Dise also argued that Express Marine is vicariously liable for the allegedly negligent provision of medical care following the accident. The appellate court affirmed the district court’s conclusion that in order to be vicariously liable for the medical malpractice of a treating physician, the shipowner must take some affirmative act in selecting or engaging the physician and that Dise had failed to present evidence of an affirmative act on the part of Express Marine sufficient to give rise to an agency relationship with the medical providers as a matter of law. Finally, while leaving for another day the question of whether property damage counterclaims by shipowner-employers against negligent seaman-employees are actionable in every Jones Act case, the appellate court had no hesitation in concluding that Express Marine’s counterclaim did not serve as a liability-exempting device under the particular facts of the case, and applied the rule supported by the weight of authority favoring allowance of Express Marine’s counterclaim. The district court’s rulings were affirmed in all respects. (4th Cir, November 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 23076
Updater Note: Congratulations again to JoAnne Zawitoski, of Semmes Bowen and Semmes, Baltimore, MD, on a grand slam victory in this case.

MATHEMATICALLY-CHALLENGED ARBITRATOR MADE A CLERICAL ERROR
MARTEL V. ENSCO OFFSHORE COMPANY, ET AL.

Circuit Court Opinion

Roy Dana Martel allegedly sustained injuries while a member of a casing crew on an Ensco Offshore Company vessel. Martel eventually filed suit, naming Ensco and Torch Operating Company as defendants. Ensco and Torch thereafter named Ingersoll Rand Company as a third-party defendant in the suit. Martel eventually settled his claims against Ensco and Torch, while they maintained their third-party action against Ingersoll. The district court ordered the third-party action to arbitration, and a judgment in arbitration determined the allocation of fault among the five parties involved, including 25% to Ensco, 15% to Ingersoll, and 50% to Martel for contributing to his own injuries. The judgment in arbitration contained a clerical error, however, computing damages based on a $300,000 total ad damnum, rather than the $3,000,000 total ad damnum to which the parties had agreed. The arbitrator held that his previous judgment had contained only a mathematical error, rather than a substantive one, such that he had jurisdiction to correct it. He reinstated his judgment, except that the monetary computations were amended to be based on a $3,000,000 total award, rather than $300,000. Ensco and Torch moved to have the arbitration award confirmed by the district court. Ingersoll, however, opposed confirmation of the amended award, and moved to vacate the amended judgment, stay all pending arbitration proceedings, and confirm the original judgment in arbitration. Following a hearing, the district court issued a judgment granting Ensco and Torch’s motion to confirm the arbitration award and denying Ingersoll’s motion to declare the arbitration proceedings closed, motion to vacate, motion to stay, and motion to confirm the original judgment in arbitration. Ingersoll filed a timely appeal of the district court’s judgment, arguing that once the arbitrator issued his original award, his jurisdiction over the matter terminated pursuant to the functus officio doctrine. Ingersoll further argued that because none of the prescribed procedures for vacating, amending, or revising a judgment in arbitration were followed here, the district court erred in confirming the amended judgment in arbitration. Conversely, Ensco and Torch maintained that the arbitrator retained the authority to issue an amended judgment, and that the district court properly confirmed that amended award. The appellate court initially noted that the arbitrator’s original award was not confirmed by the district court prior to the arbitrator vacating the award due to his mistake regarding the total award amount. Additionally, a recognized exception to the functus officio doctrine allows an arbitrator to correct a mistake which is apparent on the face of his award. The appellate court found that the arbitrator’s judgment conflicted with the evidentiary documents on which he based his calculations. In addition, at the hearing before the district judge in which Ingersoll requested that the original judgment in arbitration be confirmed, counsel for Ingersoll admitted that the arbitrator’s use of the $300,000 award amount was an error. The court held that the arbitrator’s use of $300,000 as the total award, rather than the agreed-upon $3,000,000, was a clerical error and the judgment of the district court was affirmed. (5th Cir, November 2, 2011, UNPUBLISHED)

BUZBEE DOESN’T CONVINCE 5TH CIRCUIT THAT THE THING SPEAKS FOR ITSELF
PEARSON ET AL V. BP PRODUCTS NORTH AMERICA, INC., ET AL.

Circuit Court Opinion

In 2005, as a precaution due to Hurricane Rita, BP Products North America decided to shut down all of its Texas City Refinery. Following Hurricane Rita, BP decided to audit, evaluate, and “turn around” each of the units at the Refinery on an individual basis before resuming production. To complete the turnaround, BP used independent contractors for most of the work. One such contractor was Fluor Corporation, who accepted the responsibility to control the maintenance work at Pipestill 3B, one of the refinery’s units. In 2007, when the events that gave rise to this lawsuit occurred, Gilbert Cantu, Gregorio Fuentes, and Willie Mays Jr. were among the 450 contractors working for Fluor on the turnaround of Pipestill 3B. The workers allegedly began smelling an odor unlike those one usually smells in a refinery, described as smelling like acetone. None of the hundreds of monitors and detectors designed to detect the release of any harmful gases was triggered. Fluor’s foremen stopped work on Pipestill 3B and allowed any worker to be examined at a local hospital; about one hundred workers went. Upon medical examination, no workers were found to have any exposure injuries that required hospital admission or required them to miss work. Tony Buzbee and Jason Itkin signed up one hundred plaintiffs and filed suit, claiming that their clients sustained injuries from the incident and other previous incidents at the Refinery, which were caused by BP’s negligence. The district court conducted a joint trial of ten plaintiffs. Plaintiffs’ theory was that the gas was carbon disulfide and it came from BP’s Sulfur Recovery Unit. None of the experts engaged by the plaintiffs could identify the odor’s source or its cause. BP moved for judgment as a matter of law, which the district court denied, and the claims were submitted to the jury. As part of the jury’s charge, the district court instructed the jury that it could infer BP’s negligence through the doctrine of res ipsa loquitur. The jury returned a verdict for the plaintiffs and awarded approximately $325,000 in compensatory damage and $100 million in punitive damages. The district court entered final judgment but vacated the jury’s award of punitive damages because plaintiffs failed to prove gross negligence, as required under Texas law. BP appealed, arguing that it was improper for the district court to have instructed the jury on res ipsa loquitur and that absent that instruction, plaintiffs could not show that it was negligent. The appellate court began its analysis by noting that the res ipsa loquitur rule of evidence is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. The evidence in the case showed there was simply a report of a noxious gas that the plaintiffs claimed caused their injuries. No monitors or detectors registered any harmful gas release. None of the experts could identify where the odor came from or whether it was even from BP’s property. The appellate court concluded that the plaintiffs had failed to show that the character of the accident was one that would not usually occur absent negligence nor that the injury-causing instrumentality was in BP’s control. In such circumstances, the district court should not have instructed the jury on res ipsa loquitur. The appellate court vacated the jury’s verdict and reversed the district court’s denial of BP’s motion for judgment as a matter of law. (5th Cir, November 10, 2011, UNPUBLISHED)
Updater Note: Only three of the original ten plaintiffs’ claims were the subject of this appeal as the other seven plaintiffs settled with BP. Perhaps BP was a bit too quick to settle, in light of the finding of the appellate court. Of course Tony Buzbee has been a thorn in BP’s side for some time now, so they probably tried to make the cases go away for a reasonable amount to avoid litigation costs. They need to recognize that Buzbee has a tough time winning cases outside the Rio Grande Valley.

COAST GUARD’S OPA DETERMINATIONS ENTITLED TO DEFERENCE
BUFFALO MARINE SERVICES INC., ET AL. V. UNITED STATES OF AMERICA

Circuit Court Opinion

This appeal arose out of an oil spill involving a barge and a tug owned by Buffalo Marine Services, Inc. and a large tanker ship. The Buffalo Marine vessels attempted to dock alongside the tanker ship, in order to deliver fuel that had been ordered. The fuel delivery never took place. Buffalo Marine’s barge collided with the tanker, rupturing the vessel’s skin and adjacent fuel-oil tank. As a result of the rupture, approximately 27,000 gallons of heavy fuel oil spilled into the Neches River. Buffalo Marine, the Torm, and their insurers coordinated the clean-up effort, assessed at a cost of $10.1 million. the owners and insurers of the three vessels involved in the spill jointly submitted a request for reimbursement of their cleanup expenses to the Coast Guard’s National Pollution Funds Center (“NPFC”), which is the agency charged with administering the Oil Spill Liability Trust Fund. The request sought to declare Buffalo Marine the sole “third-party” cause of the spill, exonerate the Torm, substitute Buffalo as the formal “responsible party” for cleanup costs, and limit Buffalo Marine’s liability to $2 million – the approximate value of the barge – pursuant to the OPA. The NPFC denied the claim, concluding that the claimants had not established by a preponderance of evidence that Buffalo Marine’s acts were not in connection with any contractual relationship with the responsible party. Buffalo Marine and its insurers then sought review of the NPFC’s decision in the district court. After the parties filed cross-motions for summary judgment, the district court granted the government’s motion for summary judgment. On further appeal, the Fifth Circuit ruled that the Coast Guard’s determinations under the OPA are entitled to deference. The court ruled that the Coast Guard determination was not arbitrary or capricious. (5th Cir., November 22, 2011)

COURT SAYS MARITIME OPERATIONS SHOULD BE SUSPENDED IN CHOPPY SEAS
NAYLOR V. ATLANTIC SOUNDING CO., INC., ET AL.

Antonio Naylor, a seaman employed by Atlantic Sounding Co., Inc., allegedly injured his back while working as a deckhand aboard a dredge owned and operated by Weeks Marine, Inc. The operation required a floating discharge line, referred to as the “pontoon line,” to carry the dredged material from the vessel to the banks. The pontoon line consisted of a pipeline that floated on top of evenly spaced pontoon tanks that were approximately ten feet long, four feet wide, and three feet high above the water line. The pontoon line had to be disconnected periodically to allow ship traffic to pass, and then reconnected to continue the dredging. Naylor was allegedly injured when an outside tug, operated by Caillou Island Towing Company, Inc. Rammed the pontoon line, causing Naylor to fall and injure himself. Naylor filed against Atlantic Sounding, Weeks, and Caillou Island, alleging claims under the Jones Act, unseaworthiness, general maritime tort law, and maintenance and cure. Defendants settled with Naylor and a bench trial was held solely on the issue of the apportionment of fault between Atlantic Sounding and Caillou Island. At trial Naylor testified that it was a clear, windy night and the seas were choppy, which caused the pontoon tank to rock with the waves. He had been involved in the reconnection process on several occasions before the accident and testified that he did not think it was unsafe to do the reconnection due to the weather. Naylor further testified that he had “stop work” authority if he thought that the activity was too dangerous. Naylor testified that his accident occurred when the tug rammed the discharge line and then rammed in between the discharge line and the pontoon tank while it was trying to maneuver to the other side of the pontoon tank to get downwind to make the reconnection. The captain of the offending tug described the seas being rough with two-and-a-half to three foot ground swell and admitted that the tug rammed the pontoon line because a swell came up under the vessel. Notwithstanding Naylor’s testimony that he did not believe the reconnection process itself was unsafe, the court found that Atlantic Sounding failed to use ordinary prudence under the circumstances when it attempted the reconnection process in adverse weather conditions, noting that all of the witnesses to the accident described the seas as choppy and the reconnection process had taken longer than usual. The court also found that Caillou Island owed Naylor a duty to navigate its tug safely when performing the reconnection. Unsafe navigation of the vessel foreseeably could cause an injury to the deckhand on the pontoon tank. The court found that Caillou Island breached that duty by ramming into the pontoon line twice, which caused Naylor’s injury. The court held that Caillou Island was 60% at fault in causing Naylor’s injuries, and Atlantic Sounding was 40% at fault in causing Naylor’s injuries. (USDC EDLA, November 4, 2011) 2011 U.S. Dist. LEXIS 128130

FALLON ALLOWS COOK TO GO DOCTOR SHOPPING (CONT.)
ALARIO V. OFFSHORE SERVICE VESSELS, LLC, ET AL.

Michelle Alario was hired by Offshore Service Vessels, LLC as a vessel cook. Alario alleged that as she woke up one morning, on the vessel to which she was assigned, the rocking of the vessel caused her to lose her balance, stumble across the room, and strike her right shoulder and arm on the opposite wall. Alario complained of right arm, neck, and shoulder pain resulting from this incident. Alario eventually underwent a right transverse carpel ligament release and a right lateral epicondyle release. Offshore paid maintenance and cure as well as advance wages during Alario’s treatment. Nevertheless, Alario filed a Jones Act and general maritime suit, alleging that her injuries were proximately caused by the negligence of Offshore and the unseaworthiness of the vessel. Offshore moved for summary judgment on both liability and maintenance and cure. In an earlier decision, the court dismissed Alario’s Jones Act and unseaworthiness claims, but permitting Alario to pursue her maintenance and cure claims [see February 2011 Longshore Update]. The court concluded that Alario had demonstrated, based upon the tests conducted after she was determined to be at maximum medical cure, the possibility, perhaps remote, that she has not reached maximum medical improvement. Offshore filed the present Motion for Summary Judgment, seeking dismissal of Alario’s remaining maintenance and cure claims on the basis that she had reached MMI, relieving Offshore of any further obligations. To support its argument, Offshore argued that at least two physicians had concluded Alario had reached MMI and no other physician disagrees. Offshore further maintained that it had fully funded the extensive medical treatment received by Alario and provided all maintenance benefits to which she is due. Alario filed a Response in opposition to Offshore's Motion, arguing the testimony of her treating neurologist demonstrated she had not yet reached MMI. Offshore responded that any additional treatment would only be palliative in nature. After reviewing the testimony of Alario’s treating neurologist, and construing any ambiguity in favor of Alario, the court found that the Alario had reached MMI and any further treatment would be merely palliative in nature. The court agreed with Offshore’s argument that a recommendation for relief or management of pain alone does not prevent a finding of MMI. Offshore’s Motion for Summary Judgment was granted. (USDC EDLA, November 8, 2011) 2011 U.S. Dist. LEXIS 129179
Updater Note: All I will say about this case is that Judge Fallon should have shut this over treatment down the first time he had the opportunity, rather than making the employer pay another nine months of unnecessary medical bills.

I DENIED SUMMARY JUDGMENT ON ONE THEORY, WHY BOTHER WITH THE OTHER
THAGGARD V. NOBLE DRILLING (U.S.), LLC

Andrew Thaggard was allegedly injured while working as a roustabout for Noble Drilling (U.S.), LLC aboard a semi-submersible drilling rig. The incident occurred when Thaggard was attaching a MUX cable to the riser to provide fiber optic communications between the drilling rig and the blowout preventer. During the course of the job, Thaggard’s hand was caught in the "pinch point" between the MUX cable and the riser. According to Thaggard, the bracket attached to the riser twisted out of position, pinning his fingers between the cable and the riser and causing his injury. Thaggard filed suit alleging negligence under the Jones Act and unseaworthiness under the general maritime law and seeking damages as well as maintenance and cure. Noble moved for partial summary judgment on the issues of negligence and unseaworthiness, contending Thaggard had been specifically trained to do the job and to safely palm the MUX cable, arguing that Thaggard’s own negligence was the sole cause of the incident. Thaggard opposed Noble’s motion, arguing that the MUX cable could have been repositioned to obviate the need to put his hand near any pinch points, and also that the riser brackets had a history of rotating unexpectedly and this posed an unreasonable risk of injury. Despite Thaggard’s sworn deposition testimony that no one on the rig was at fault for his injury, the court still found that the cause of and responsibility for the bracket twist were pregnant with factual issues that could not be resolved on summary judgment. Notwithstanding the fact that the court specifically found that Thaggard had not articulated a viable theory of unseaworthiness, because partial summary judgment was denied as to Jones Act negligence based on factual disputes regarding the condition of the riser bracket, the court determined that it was not appropriate to grant summary judgment on the issue of seaworthiness. (USDC EDLA, November 15, 2011) 2011 U.S. Dist. LEXIS 131682

YOU CALL THAT A CHANDRIS ANALYSIS JUDGE?
SMITH V. KANAWHA RIVER TERMINALS LLC, ET AL.

Shawn Smith worked on and off in various positions for Kanawha River Terminals (KRT) beginning in July 2004. KRT is in the business of transloading coal at four different facilities. On December 1, 2007, Smith allegedly fell from a platform, landed on the deck of a transloader barge, and rolled into the river. About three weeks prior to his alleged accident, Smith was reassigned to transloading at KRT's Ceredo facility. None of the positions held by Smith prior to this reassignment required him to work on a barge, boat, or other floating equipment. Smith later filed suit against KRT under the Jones Act and general maritime law for damages arising from his injuries. KRT moved for summary judgment, asking the court to decide whether, as a matter of law, Smith was a "seaman" for purposes of the Jones Act and general maritime law. Smith opposed the motion, contending he could potentially qualify as a seaman under the Jones Act with regard to either the customer barges that KRT services or the transloader barge on which he worked. The court found that the coal barges, owned by KRT's customers and under KRT's limited control for purposes of loading and unloading, did not constitute an identifiable fleet, nor does the relevant case law support a finding that his connection with the customer barges is sufficient to qualify Smith as a seaman. However, the court found that the transloader barge, is a vessel within the meaning of the Jones Act and general maritime law. The transloader barge had no living quarters, no means of self propulsion, and was accessed by a steel framed walkway. Its operations were powered by electricity supplied via an onshore power cable, and it had been moored for eleven months at the time of the incident. However, the court noted that eleven months is a relatively brief period, and the barge could be removed without great difficulty were it necessary for maintenance of the watercraft, the hopper, the excavator, or for some other business purpose. Focusing its inquiry on the capability of the transloader for transportation, the court concluded that, at the time of the accident, future use of the transloader barge in transportation was a practical, and not merely theoretical, possibility. The court also found that when Smith was assigned to transloading, his reassignment was permanent. His primary responsibility was the unloading of coal barges, either as dockhand or excavator operator. Additionally, by being exposed to the elements, adjusting the lines on customer barges, operating a Bobcat on customer barges, and generally tending to the operations of the transloader barge, he was regularly exposed to the perils of the sea. Therefore, the court also concluded that Smith’s relationship to the transloader was sufficient to state a claim under the Jones Act. KRT’s motion for summary judgment was denied. (USDC SDWV, November 4, 2011) 2011 U.S. Dist. LEXIS 127881

LET’S DO A LITTLE DISCOVERY BEFORE FILING SUMMARY JUDGMENT MOTIONS
BRILEY V. U.S. UNITED BARGE LINE, LLC, ET AL.

Michael Briley worked as a member of the crew aboard a tugboat owned and operated by U.S. United Barge Line, LLC (UBL). Part of Briley's day-to-day duties as the first mate included inspecting the rigging for defects and seeing to its replacement if necessary. Briley and another crew member were depositing three barges ay a fleeting facility and were removing the rigging between the three barges in preparation for their arrival. One particular wire was too tight to detach it from the ratchet's pelican hook. As Briley and the other crew member attempted to slacken the wire with a cheater pipe, the wire made a loud "pop," which caused both men to retreat from the area out of fear the wire would break. They returned to the wire after a few moments and began working on it anew. Moments later, the ratchet on the barge broke and either it, or the wire recoiling from the release of tension, struck Briley in his leg and fractured it. Briley filed suit against UBL, alleging negligence under the Jones Act and claims of unseaworthiness, maintenance, cure, and wages under general maritime law. UBL filed a third-party complaint against the manufacturer of the pelican hook, Dixie Industries, requesting indemnity and contribution. Briley moved for partial summary judgment on his claim of unseaworthiness, alleging there are no material facts surrounding the fact that the ratchet and pelican hook were being used for their ordinary and approved purposes, the pelican hook and proximately caused his injury. The question before the court was whether the vessel, by virtue of the broken ratchet, was unseaworthy as a matter of law. The parties did not dispute the pelican hook broke under the strain of the barge or that Briley was using the ratchet, along with the hook, for its ordinary purpose. Nor did they contest that the hook's snapping was a direct cause of Briley's injuries. What was uncertain was why the pelican hook gave way that night, and this question drove UBL's and Dixie's opposition to Briley’s motion, arguing that summary judgment was improper at this time. UBL and Dixie argued that Briley may have proximately caused his injury by returning to the ratchet after the first popping noise; it was unclear whether the pelican hook was defectively manufactured or designed, which could be the ultimate cause of the accident; and by ordering the realignment, Briley may have inadvertently and negligently overloaded the pelican hook. The court found that, while neither UBL nor Dixie had come forward with sufficient facts to rebut Briley's claim, this was excusable since discovery was only in its infancy. To grant Briley's motion at this juncture would be to ignore the general rule that summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery. The court denied Briley's motion for summary judgment, but granted him leave to refile his motion at a later date once the parties had an adequate opportunity to conduct discovery. (USDC WDKY, November 10, 2011) 2011 U.S. Dist. LEXIS 130753

LIMITATION OF LIABILITY FAILS DUE TO SHOWING OF PRIVITY AND KNOWLEDGE
IN RE: LEO, LLC

Matthew Flora worked for Leo, LLC as a seaman on one of its fish tender vessels. Flora was working on the deck of the vessel, when he was hit in the head by a scale, allegedly knocking him unconscious. Flora claims to have suffered a permanent brain injury as a result of being struck on the head with the fish scale. After Flora filed his seaman’s suit, Leo filed a petition for limitation of liability, admitting that the privity or knowledge of Coastal Seafoods shall be imputed to all other petitioners. Flora was able to prove that the crane hooks on the vessel’s cranes were originally designed to have safety latches, that a safety latch would have kept the scale in the vessel’s port side crane hook, and that he would not have been injured if the crane hook had a safety latch. Testimony was clear that Coastal’s personnel did not follow up, after they realized that the hook was defective, to make sure that the crane hook was repaired, and these employees were sufficiently senior in the Coastal Seafoods hierarchy to make actual knowledge of the unseaworthy condition and the negligent failure to remedy the situation that of Coastal Seafoods. The court concluded the vessel’s crane hook was not reasonably fit for its intended purposes. The court found that Flora had sustained his burden of proving negligence of Coastal Seafood and Leo, and the unseaworthiness of the vessel and that petitioners' negligence was a cause of his injuries and that the unseaworthiness was a substantial cause of his injuries. Accordingly, the court held that petitioners were not exonerated from liability. With regards to the next step, whether petitioners could limit their liability, the court held that petitioners failed to meet their burden of proof to show lack of privity or knowledge of the several independent causes of Flora’s injury. It was undisputed that senior Coastal personnel had actual knowledge of the unseaworthy condition. The failure to "red tag" or prohibit use of the crane until it was repaired constituted negligence within the privity or knowledge of petitioners. The court concluded that Flora had established, by a preponderance of evidence, that petitioners were negligent and the vessel was unseaworthy, and held that petitioners could not limit their liability, as they failed to sustain their burden to prove that they had no privity or knowledge of the causes of Flora’s injury. The Petition For Limitation of Liability was dismissed with prejudice. (USDC WDWA, November 7, 2011) 2011 U.S. Dist. LEXIS 128726

BARBIER GIVES THE ADMIRALTY WORLD HIS SPIN ON THE FLOTILLA DOCTRINE
IN RE: WAR ADMIRAL, L.L.C., ET AL.

This lawsuit arose from a collision between two vessels and their respective tows. Troy Hamrick, a deckhand aboard one of the involved barges, allegedly suffered injuries as a result of the collision. The owner and operator of the M/V WAR ADMIRAL, one of the vessels involved in the collision, filed a petition seeking to eliminate or limit its liability. The WAR ADMIRAL is owned by War Admiral, L.L.C. and was operated by Turn Services, L.L.C. Hamrick filed a claim in the limitation case and then moved to increase the security of the limitation fund or, in the alternative dismiss the limitation action. The collision occurred at a fleeting facility-a staging area where barges are stored or secured. At the time of the collision, the WAR ADMIRAL was in the fleeting area building a 17-barge tow for a customer vessel. A towboat, owned and operated by Accumarine Transportation LP, was traveling upriver pushing two barges with sweet crude oil. The WAR ADMIRAL's captain spotted the Accumarine tug and tow approaching and radioed her, but got no response. The two tugboats collided, leaving a large gash in the WAR ADMIRAL's stern, and allegedly causing Hamrick to fall from his position at the head of an adjacent barge a distance of 14 feet into an empty hopper barge below. After filing its limitation action, Turn Services posted a letter of undertaking as security in the amount of $750,000, the value of the WAR ADMIRAL. Hamrick alleges that his damages total more than $4 million, and argued that the posted security was woefully insufficient because it is only based upon a valuation of the WAR ADMIRAL. Hamrick asserted that at the time of the collision, the WAR ADMIRAL, the M/V BLACKBEARD, the M/V OMAHA, and the M/V SECRETARIAT were all Turn Services vessels working together to build a tow for a customer and that all of these vessels were part of a common fleeting enterprise and, therefore, that the value of other vessels should be included in the limitation fund. Hamrick also argued that, under the “flotilla doctrine” the value of the fund must be increased by the pending freight, which is the value of any contract under which the flotilla was working at the time of the collision. Turn Services opposed Hamrick's motion on substantive and procedural grounds, arguing the motion to increase security was untimely, as it was filed over two-and-a-half years after the limitation action was filed and the security was posted. Turn Services also argued that the motion should be denied because two of the three elements of the flotilla doctrine are absent. First, there was no common venture or enterprise. Two of the vessels were merely available to help build the tow; they were not necessary to performance of the contract. The deposition testimony clearly showed that only the WAR ADMIRAL was actually involved in building the tow. Second, the vessels were not under a single command. The mere fact that vessels owned by one entity operate in the same area does not mean that they operate under a single command. Lastly, Petitioners argued that pending freight cannot be computed, because there was no evidence in the record by which computation could be made. The court dismissed Turn Services’ “availability” argument, noting that the mere fact that vessels do not actively perform work on a contract does not necessarily mean that they are not contractually engaged in a common enterprise. The court found that there was sufficient evidence that the WAR ADMIRAL, the BLACKBEARD, and the OMAHA-but not the SECRETARIAT-were engaged in a common enterprise. The court also bought into Hamrick's argument that, where Turn Services was using three or four of its vessels on the date of the accident in question to build a tow for a customer vessel, there necessarily must have been common control, or command, over the vessels working jointly to carry out this task. The court held there was sufficient evidence that the vessels constituted a flotilla, and ordered security increased to include the value of all three vessels. The court rejects the procedural argument that the motion was untimely, finding it was Turn Services’ failure to respond to discovery until the Magistrate ordered a response that was to blame for the initial lack of proof of a flotilla. Finally, the court found that the value of the contract, under which the flotilla was working at the time of the collision, should be included in the limitation fund as pending freight. Hamrick's motion was granted. (USDC EDLA, November 18, 2011) 2011 U.S. Dist. LEXIS 133654
Updater Note: The dispatcher did it? This is a ridiculous interpretation of the “flotilla doctrine,” in my humble opinion. If we buy into Barbier’s interpretation of this doctrine, every vessel in a shipowners fleet should be included in every limitation action.

COURT CONCLUDES DEFENDANT’S REMOVAL BURDEN WAS NOT MET
CREPS V. TRUCO MARINE, LLC

Ethan Creps, a seaman, alleged that he sustained injuries during the course of his employment on a Truco Marine, LLC vessel, when a cable on the ship's crane snapped, causing a 300 pound crane block to fall approximately 60 feet and strike him in the back. Creps filed this action against Truco, whom he believed to be his employer at the time of the accident, and other unnamed defendants in state court based on negligence, unseaworthiness, and maintenance and cure. Truco removed the case to federal court, arguing that Patriot Contract Services LLC (PCS) - and not Truco - was Creps's employer and (2) that pursuant to the "Exclusive Remedy Provision," of the Suits in Admiralty Act (SIAA), the United States, as PCS's principal, is the only proper defendant as the owner of and controlling authority on the vessel at the time of the accident. Creps moved to remand the case to state court. Truco opposed Creps's motion and moved the court to dismiss the case for lack of subject matter jurisdiction and for failing to state a claim upon which relief can be granted. In the alternative, Truco asked the court to grant it summary judgment on the basis that it was the wrong defendant. The court began its analysis by observing that it must remand a case to state court if there is any doubt about the propriety of removal. The court then found that Truco had failed to meet its burden in this regard and it remained possible that Truco may be liable to Creps under the Jones Act. Although Truco presented ample evidence showing that an agency relationship likely existed between PCS and the United States, they provided nothing showing that Truco had a similar relationship with the United States. The court therefore declined to conclude that Truco receives immunity as an agent of the United States under the SIAA and PVA. Similarly, although Truco had proffered materials that highly suggest that it was not Crep’s employer, they failed to eliminate all possibility of an employment relationship between them. Facts and ambiguities raised in the evidence submitted by both parties created enough doubt that the court could not definitively hold that there is no possibility that Truco employed Creps. Because Truco had not satisfied its burden to sustain removal jurisdiction, the court granted Creps Motion to Remand and denied Truco’s Motion to Dismiss as moot. (USDC NDCA, November 8, 2011) 2011 U.S. Dist. LEXIS 129293

EMPLOYER ENTITLED TO IME INDEPENDENT OF ITS OBLIGATION TO PROVIDE CURE
Y & S MARINE, INC. V. MAZA

Travis Maza was employed by Y & S Marine as a deckhand when he was allegedly injured while lifting either a trash can lid or a garbage bag. Maza claimed he felt a twist and heard a pop, ultimately experiencing low back pain. As part of its duty to provide maintenance and cure, Y&S immediately began paying for and arranging treatment for Maza's alleged injuries. When Y&S attempted to arrange for an independent medical examination (IME), Maza objected contending that the examination reports provided by his treating physician qualified as Y&S’s one and only Rule 35(a) IME. Y&S moved to compel the examination and the magistrate found that Maza's physical state was in controversy, and further agreed that Y&S had shown good cause why Maza should be compelled to undergo an IME. Maza filed an Objection to Magistrate's Ruling to Compel a Second Medical Examination and Y&S responded urging the court to affirm. The court affirmed the magistrate’s decision that Y&S, as a Jones Act employer, is entitled to an IME that is separate from its obligation to provide a treating physician for the seaman's cure. Maza’s motion was denied. (USDC EDLA, November 17, 2011) 2011 U.S. Dist. LEXIS 132807D

Quotes of the Month . . . “Some men have thousands of reasons why they cannot do what they want to, when all they need is one reason why they can.”--Willis R. Whitney

“Procrastination is opportunity's assassin.”--Victor Kiam

“The man who never alters his opinion is like standing water, and breeds reptiles of the mind.”--William Blake

Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

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