March 2012
Notes From Your Updater - David Widener has been selected as the new Longshore District Director for Houston and will start in his new position on February 27, 2012. Mr. Widener was formally with The American Equity Risk Services (ALMA's claims unit) before moving over to a Claims Examiner position in the Houston Longshore office last year. Thanks to Jack Martone for sharing this news with me.
On February 21, 2012, the U.S. Supreme Court granted certiorari in the case of Lozman v. The City of Riviera Beach, Florida (Docket No. 11-626) to resolve the conflict between the Fifth Circuit and the Eleventh Circuit on the vessel status question in light of Stewart v. Dutra. The question present to the Court is “Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a “vessel” under 1 U.S.C. §3, thus triggering federal maritime jurisdiction. Use these links to review the Petition for Certiorari, the Brief in Opposition, the Reply Brief, and the Amicus Brief of the Maritime Law Association.
The 2012 Loyola Annual Longshore Conference will be held at the Sheraton New Orleans Hotel,
New Orleans, Louisiana, from March 15 &16, 2012. There are still openings remaining at this time. You can even register online.
SAVE THE DATE - Signal/LCA Maritime Conference, May 21st to May 23rd, 2012, Longshore Practice in the 21st Century: Enhancing the Maritime Industry’s Vision and Voice through the Pursuit of Educational Excellence. Two days of intriguing topics at The Hyatt Regency Penn’s Landing, Philadelphia, PA. There will be pre-registration on May 21, 2012, followed by a Welcome Reception. There will also be optional shipyard tours for early bird registrants. Check out the conference brochure, faculty, and registration form.
UNRELATED STROKE IS WORK-AGGRAVATED BY FAILURE TO TIMELY TREAT
ISLAND OPERATING COMPANY, INC. ET AL. V. DIRECTOR, OWCP [CRAWFORD]
Archie Crawford was employed by Island Operating Company, Incorporated as a lead operator on an offshore oil production platform. While disembarking from a helicopter that took him to the platform, Crawford's knee buckled, and he fell down two stairs, bruising and scraping his right knee and his right side. Crawford performed his job duties for the remainder of the day, but when he awoke the following morning, he experienced numbness in his left foot and three of the fingers on his left hand. Crawford asked for medical attention, but was allegedly denied same, because there were no physicians on the platform and a for Crawford replacement was not available. Crawford's condition continued to worsen in the days that followed. Crawford was eventually replaced by a relief operator and was taken by helicopter to Lafayette General Medical Center where physicians diagnosed him with a stroke. Crawford has not returned to any kind of work following this diagnosis. Crawford filed a claim for benefits under the LHWCA, which Island and its contested. An ALJ concluded that Crawford's stroke was a preexisting condition that was not caused by Crawford's work, but that the stroke was aggravated by his working conditions because of the time Crawford spent on the offshore platform before he was able to seek treatment. Crawford had also suffered a shoulder injury, which the ALJ found was caused by Crawford's fall. Ultimately, the ALJ awarded Crawford compensation for permanent total disability. The ALJ also held Island liable for the medical expenses related to Crawford's stroke and shoulder injury. Island appealed the ALJ's decision and order to the BRB, contending that the ALJ erred in finding that Crawford's working conditions aggravated his stroke. The BRB affirmed the decision and order of the ALJ. Island proceeded to appeal the order of the BRB, challenging the ALJ's finding that Crawford was entitled to the presumption under §920(a) that working conditions had aggravated the disability resulting from Crawford's stroke. Island argued that Crawford failed to prove that working conditions or a work-related injury aggravated his stroke, asserting that Crawford did not report that he was experiencing the symptoms of a stroke until at least twenty-four hours after his fall. The appellate court began its analysis by noting that the treating physician had repeatedly stressed in his testimony that treatment for a stroke should be administered as soon as possible. Moreover, although there was some evidence to the contrary, Crawford testified that he repeatedly requested to be relieved from his post on the offshore platform so that he could receive treatment. As a consequence, the appellate court agreed with the BRB that substantial evidence supported the ALJ's inference that the damage caused by Crawford's stroke was aggravated by the six days Crawford spent on the offshore platform before he received treatment. Because the entitlement to the §920(a) presumption was the only issue properly preserved on appeal, the appellate court affirmed the order of the BRB upholding the ALJ's decision and order awarding compensation to Crawford. (5th Cir, February 16, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 3037
OUCH, MY BACK HURTS. IT’S GOT TO BE DUE TO ALL THAT HARD WORK I DID.
ISLAND OPERATING COMPANY, INC, ET AL. V DIRECTOR, OWCP, ET AL. [DOUCET]
Brian Doucet worked for Island Operating Company on an oil platform on the outer continental shelf. Following an allegedly heavy work day, Doucet claimed to have woken up the next morning suffering from back pain. Doucet was treated for back pain and a magnetic resonance imaging examination revealed degenerated and herniated discs in Doucet's spine. Doucet filed a claim for benefits under the LHWCA, as extended by the Outer Continental Shelf Lands Act. An ALJ awarded Doucet benefits, and the BRB affirmed the award. Island petitioned for review of the Board's decision, arguing that insufficient evidence supports the ALJ's award determination. Island argued that the evidence demonstrated that Doucet's back condition was the result of the natural progression of a pre-existing injury unrelated to, and not aggravated by, his work. The appellate court began its analysis by noting that once the claimant establishes his prima facie case, the burden shifts to the employer to rebut the presumption by pointing to substantial evidence establishing the absence of a connection between the injury and the employment. The court concluded that a review of the record below supported the ALJ's determination that the presumption was triggered, thus shifting the burden to Island to rebut the presumption. The record also supported the ALJ's finding that Island did not rebut the presumption that Doucet's back injury was causally related to his work the previous day. Although the record contained some conflicting evidence regarding whether Doucet may have suffered from some type of back problems prior to the work day in question, the appellate court refused to re-weigh that evidence. Holding that substantial evidence in the record supported the ALJ's conclusion that Doucet's working conditions could have caused, aggravated, or accelerated his condition, the appellate court affirmed the decision of the Benefits Review Board. (5th Cir, February 24, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 3714
PROPOSED OVERSIGHT PROGRAM NOT READY FOR REVIEW
NEW YORK SHIPPING ASSN V. WATERFRONT COMMISSION OF NEW YORK
In this case, the New York Shipping Association appealed from a district court order granting the Waterfront Commission of New York Harbor's motion to dismiss on the Association's claim that the Commission improperly implemented a program affecting the association's members. At the time the Association filed its complaint, the Commission had no final program, the details of the program were insufficiently documented, and the Commission had yet to implement the program. The legal question at issue (whether the Commission's actions fell within its statutory authorization) likely turned on how the program would be implemented. The appellate court concluded that judicial review of the Commission's actions would benefit from further factual development. Without a definite program to review, the court concluded that it lacked any guarantee that a decision on the merits would target the program the Commission actually implemented rather than some abstract program. The judgment of the district court was affirmed. (3rd Cir., February 7, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 2416
WHO NEEDS SOME STINKING DISTRICT DIRECTOR? YOU’LL DO IT MY WAY!
IN RE: WEEKS MARINE, INC.
Michael Kilroy was employed as a dockbuilder by Weeks Marine, Inc. Kilroy was allegedly injured when a tow line parted to the barge Kilroy was standing on and struck Kilroy in the leg, breaking his right ankle. Weeks began paying voluntary compensation under the LHWCA and put the towing company on notice that it was being held responsible for Kilroy’s injuries as a negligent third party. Weeks subsequently received a letter from Kilroy’s attorney, informing Weeks that Kilroy intended to sue a third-party, not Weeks. When Kilroy eventually filed his third-party complaint in state court, Weeks was also named as a party. Weeks immediately removed Kilroy’s complaint to federal court and filed a complaint to limit its liability to the value of the barge that Kilroy was standing on when he was injured. The parties eventually agreed to settlement terms, following a lengthy settlement conference, agreeing to settle both the general maritime and Longshore claims under specific terms, that included a hold harmless in favor of Kilroy for disputed medical expenses, which Weeks contended were unreasonable and unnecessary. Weeks paid the general maritime portion of the settlement and prepared a §908(i) settlement agreement for the Longshore portion of the settlement and sent it to Kilroy’s attorney for execution. Kilroy’s attorney refused to execute the §908(i) settlement agreement unless the disputed medical expenses were paid first. Weeks refused and Kilroy moved the district court to enforce the settlement agreement. Kilroy claimed that all of the unpaid medical bills, totaling $10,579.22, are both reasonable and necessary. Weeks disputed this claim, noting that two of the physician had never been authorized and neither was treating Kilroy for his work-related injury. The court held that only $2568.12 of the $10,579.22 claimed medical expenses were reasonable and necessary. The court found that Kilroy's chiropractic treatments were in connection with pre-existing conditions, and were not necessary to cure the injuries sustained in his work-related accident. Weeks is not obligated to pay Dr. Brady's bills. Likewise the court found that the neurological treatment that Kilroy received for his back, neck and shoulder, at the behest of Kilroy’s chiropractor, were also related to pre-existing conditions. As for the neurologist’s treatment of Kilroy for cognitive defects and headaches, the court found that these treatments were neither necessary nor reasonable. The court ordered Weeks to pay only $2568.12 of the outstanding medical expenses and to deposit $10,000 into the Registry of the court, noting that this money, with interest, would be paid to Kilroy upon notice that the §908(i) settlement agreement had been approved by the United States Department of Labor. (USDC EDPA, February 10, 2012) 2012 U.S. Dist. LEXIS 17106
Updater Note: Magistrate Hart had a good old time taking pot shots at Weeks Marine in this opinion; but I can’t complain. The outcome is much better than we had hoped for. I found it highly unusual though that a federal magistrate judge would tread so indiscreetly into the jurisdiction of the District Director and the Longshore Act. That said, I’m not about to argue with such a successful outcome. Congratulations to Chris Field, of Field Womack & Kawczynski, and to Ron Betancourt, of Betancourt, VanHemmen, Greco & Kenyon for a great outcome on an unusual case.
COURT DENIES PLAINTIFF’S MOTION TO ADD LHWCA CAUSE OF ACTION TO CASE
RUTHERFORD V. M/V ENTERPRISE, ET AL.
Jeff Rutherford allegedly sustained injuries, while employed by Sort Well, Inc., dba AMNAV Maritime Services, as a result of an incident on board a vessel. Although he was a land-based employee, Rutherford alleged that he was employed by AMNAV as a seaman at the time of his injuries and filed this action, alleging Jones Act Negligence, seaworthiness, maintenance and cure and unearned wages. AMNAV filed an Answer to Rutherford’s Complaint, denying, among other things, his allegation that he was at all relevant times a seaman within the meaning of the Jones Act and general maritime law. AMNAV also asserted the affirmative defenses that Rutherford was not a Jones Act seaman and that his exclusive remedy was under the LHWCA. After the court had set the matter for trial and the last date for motions had passed, Rutherford filed this motion seeking to amend his complaint to assert a new alternative basis for his negligence claim against AMNAV under the LHWCA. The court denied Rutherford’s motion for leave to amend his Complaint as untimely, noting that Rutherford had been on notice that AMNAV disputed his seaman status since it filed its Answer to Rutherford’s original Complaint. The court also noted that were it to allow the untimely amended complaint, AMNAV would have little time to prepare for Rutherford’s new LHWCA claim and would be deprived of the opportunity to conduct relevant discovery. Rutherford attempted to argue that his amendment would add nothing to the case, but the court rejected this argument finding that the addition of a LHWCA claim would introduce a new set of factual and legal issues. Rutherford's motion for leave to amend was denied. (USDC NDCA, February 8, 2012) 2012 U.S. Dist. LEXIS 15633
CAN’T LOCATE THE SHIP’S CREW. GUESS I’LL DO IT MYSELF AND THEN SUE
DOBBINS, ET AL. V. COMPANIA SUD AMERICANA DE VAPORES S.A., ET AL.
Joseph Dobbins, a longshoreman employed by Delaware River Stevedores (DRS), allegedly injured his shoulder when he lost control of a steel escape ladder while attempting to lower it into a hold aboard a Hol-Reefer V, Ltd vessel. Dobbins and his co-workers boarded the vessel to unload cargo and used a portable ladder to descend into a hold, because the hold's escape ladder, which is a part of the vessel, could not then be installed because there was cargo in the area where it would have been placed. Before the hold was completely emptied of cargo, the longshoremen allegedly called up to crew members to ask for a ladder. Because they did not receive any response, one of Dobbins's co-workers lifted him to the main deck using a forklift. Dobbins found an escape ladder on the main deck and began to lower it into the hold. Because the ladder was too heavy, he lost control of it after feeling a pain in his shoulder. Dobbins filed a §905(b) suit under the LHWCA against the vessel owner, alleging that he was injured because the shipowner knew it should have installed an escape ladder, but in failing to do so, forced the longshoremen to free themselves from the hold. Hol-Reefer V moved for summary judgment, arguing there is no evidence that it breached any of the three general duties of care it owed to Dobbins. Because underlying facts were disputed, Dobbins responded by arguing that summary judgment was inappropriate because prima facie evidence existed that the shipowner breached the active operations and intervention duties. The court found that Dobbins had presented evidence that raised an issue of material fact as to whether the shipowner was in charge of the area or instrumentality of Dobbins's accident, and was thus subject to the active operations duty, based upon expert witness testimony that industry standards required the shipowner to have a crew member on the main deck or at a gangway during cargo operations. The court observed that a jury could thus find the vessel knew or should have known of an unreasonable risk of harm to Dobbins because, being unable to find a crew member to help him when one should have been present, he would reasonably seek to free his co-workers from a hold in which they were trapped. A jury could also find that Dobbins, not being a crew member, was unaware of the risks involved in installing an escape ladder by himself, and thus would foreseeably injure himself while attempting to do so. The court also found that Dobbins had produced evidence sufficient for a jury to conclude that Hol-Reefer V breached its duty to intervene. The shipowner's motion for summary judgment was denied. (USDC EDPA, February 10, 2012) 2012 U.S. Dist. LEXIS 17124
ALJ FAILED TO PROPERLY CONSIDER SUITABLE ALTERNATIVE EMPLOYMENT
L-3 COMMUNICATIONS, ET AL. V. DIRECTOR, OWCP, ET AL. [SCHBOT]
L-3 Communications hired Michel Schbot as a linguistic specialist/translator. Schbot eventually traveled to Kuwait, and on to Iraq to work as an Arabic/English translator for the U.S. Army. Schbot allegedly injured his back walking from his tent to the bathroom when he slipped and fell on a pallet. Because of continued subjective complaints of pain, physicians concluded they could do nothing more for Schbot in Iraq, so he was sent back to the United States for treatment. Schbot filed a claim for compensation under the DBA extension of the LHWCA. Following a formal hearing, the ALJ determined that Schbot established invocation of the §920(a) presumption that he had sustained a workplace injury and the employer did not rebut the presumption. The ALJ concluded that Schbot had reached MMI, but could not return to his former duties in Iraq. L-3 established suitable alternative employment for Schbot and the ALJ awarded TPD and PPD benefits, using §910(c) to calculate Schbot’s AWW using Schbot’s anticipated future wages that he would have earned in Iraq were it not for his injury. The employer moved for the ALJ to reconsider his opinion, contending that the ALJ should not have used Respondent's post-injury wages in the calculation of average weekly wage, but the ALJ denied this motion. L-3 subsequently appealed the ALJ's order to the BRB, again arguing that the ALJ erred by using Schbot’s post-injury wages in his calculation of the AWW, but the BRB affirmed. L-3 appealed the BRB's decision to the district court, contending that the BRB erred by affirming the ALJ's use of post-injury wages to calculate the AWW and erred in affirming the ALJ's calculation of Schbot’s post-injury earning capacity, arguing that the ALJ failed to average the salaries of positions identified as suitable alternative employment. The court determined, on the facts before it, the approach adopted by the BRB in calculating the AWW appeared to be most consistent with the plain language of the statute, concluding that where an employee's earnings in the year preceding the injury are not a fair and reasonable approximation of claimant's earning capacity because such employee's annual earnings would have substantially increased but for the disabling injury, it is appropriate to look at post-injury earnings. Under these circumstances, consideration of all of Schbot’s earnings in Iraq, both pre-injury and post-injury, was consistent with the language of §10(c) and its purposes. The court concluded that the ALJ acted within his discretion when he considered the exceptional circumstances involving Schbot’s one-year employment contract and the dangerous environment in which he worked, and factored in Schbot’s higher than stateside post-injury wages in the AWW calculation. Turning to Schbot’s post-injury wage earning capacity the court rejected the employer’s assertion that the ALJ erred in disqualifying two potential interpreter positions as suitable alternative employment. Schbot testified that he diligently sought the interpreter positions and discovered that one possible interpreter employer would have required a $ 1,400 certification and would have given him only one-half to one hour of work every few months, translating for the courts. The second interpreter position was seeking a Spanish interpreter, not Arabic, Schbot’s specialty. Therefore, the court affirmed the Board's finding that the ALJ, rationally concluded that the interpreter position identified in the labor market survey was not available alternative employment and that the wages could not be used to calculate Schbot’s wage-earning capacity. Finally, the employer asserted that the ALJ erred in his calculation of Schbot’s post-injury earning capacity by basing this calculation on the lowest-paying position identified as suitable alternative employment, rather than averaging the salaries of the positions identified as suitable alternative employment. The court agreed with this argument, noting the ALJ took into account the fact that the employer had identified both cashier and photographer positions as suitable alternative employment. Yet, the ALJ only considered the salary of the lowest-paying of the positions (cashier) in his calculation. Since no explanation was given by the ALJ or BRB for disregarding the photographer position in the calculation of post-injury earning capacity, the court refused to find that the decision was rational and in accordance with the law. The court affirmed the decision of the BRB concerning the AWW and the disqualification of the interpreter position as suitable alternative employment. However, the court vacated the BRB's calculation of Schbot’s post-injury wage earning capacity and remanded for further proceedings. (USDC EDVA, December 2, 2011) 2011 U.S. Dist. LEXIS 139088
DO THESE LONGSHORE PTD CASES EVER GO AWAY?
DAVIS V. UNITED STATES DEPARTMENT OF LABOR, ET AL. [G. HYMAN CONST. CO.]
In 1982, Earl Davis was adjudicated under the LHWCA as permanently disabled by an on-the-job injury that occurred in 1965, while he was in the employ of George Hyman Construction Company. At the time of the award, the court established the procedures by which Davis was to submit reimbursements requests, for prescription costs, orthopedic footwear, travel, etc., which he had paid directly, to Hyman’s insurance carrier, Liberty Mutual. In 2000, in response to Davis's alleged ongoing difficulties in obtaining reimbursements from Liberty, this court granted Davis's motion to revive the judgment and the magistrate clarified the reporting requirements, by amended order, to provide that Liberty would be subject to a monetary penalty for delays in compliance. Since 2002 the parties have had an ongoing dispute involving four requests for reimbursement filed by Davis. These claims were pursued via the administrative process of the LHWCA, including a determination by an ALJ, an appeal to the BRB, and an appeal to the D.C. Circuit, resulting in a final decision that partially granted, partially denied, and partially dismissed Davis's claims. This led Davis to claim entitlement to fines of approximately $30 million against Liberty, on an initial dispute over claims totaling approximately $50,000—much of which was adjudicated not payable via the LHWCA administrative process and was noted to border on the frivolous. While the administrative process was ongoing, Davis pursued an action in district court to again enforce the 1982 Order under §921(d) of the LHWCA, to require Liberty to respond to his reimbursement requests in the form specified by the Order, and to enforce the monetary penalty for lack of timely response by Liberty The magistrate judge ordered Liberty to submit a detailed response addressing each of the four disputed reimbursement requests forming the basis of Davis's argument. The magistrate judge eventually denied Davis's outstanding motions for enforcement of the Order, dismissed the DOL from the case and denied Davis’s subsequent Motion for Clarity. Davis appealed the magistrate’s ruling to the district court. The court found that the decision of the magistrate was not clearly erroneous or contrary to law. The court pointed out that the 1982 Order applied only to reimbursements to Davis personally, and did not address any other payments for medical services (such as the disputed direct payments to Davis's doctor and treating hospital). The court observed that Davis was improperly attempting to re-litigate the same claims, after a judgment on the merits had already been entered. Having carefully considered the appeal, opposition, reply, and the voluminous record in this case, the court affirmed the magistrate judge's order and denied Davis’s request for injunction. Additionally, since there was no longer an active controversy within the court’s jurisdiction, this case was terminated from the court's active docket. (USDC DC, February 24, 2012) 2012 U.S. Dist. LEXIS 23324
COURT FIND THAT A VESSEL HATCH CONSTITUTES A “DANGEROUS CONDITION.”
ROSS V. THE UNITED STATES OF AMERICA, ET AL.
Joshua Ross was allegedly injured while performing contract work aboard a U.S. Coast Guard cutter for his employer, Bailey Refrigeration. Ross was working within the scope of his duties as a "longshoreman," when a hatch on the vessel closed on his left hand, severing his left index and ring fingers and requiring a tendon repair and pinning of the small finger. Ross and his wife brought an action against the United States, in its capacity as owner of the vessel, under §905(b) of the LHWCA, pursuant to the waivers of sovereign immunity contained in the Suits in Admiralty Act, 46 U.S.C. §§30901-30918 and under the Public Vessels Act, 46 U.S.C. §§31101-31113. Following a bench trial, the court found that the uncontroverted testimony established that the United States exercised "substantial control" or was "in charge of" the hatch and its surrounding area and was also "in charge of the instrumentality" which caused the injury, the hatch. The Bailey contractors were required to report to a duty officer on the quarter deck every time they opened or closed a hatch. The court concluded that this substantial control and direction over the contractors triggered the active control duty. The court also found that the testimony presented indicated that the United States unquestionably "appreciated" the hazards posed by hatch operation. Although the hatch at issue was not defective, it was a heavy and potentially dangerous mechanism, the handling of which required specialized knowledge and care. Yet the United States failed to train Baily contract workers in their use or determine whether the Bailey contract workers had the requisite knowledge to ensure their own safety and vessel "integrity." The court found that it was incumbent upon the vessel owner to determine whether the contractors were aware of the hazards involved in hatch operation, or to restrict hatch operations to trained and qualified coast guard crewmen. The court held that the failure to make this determination or institute restrictions constituted failure to exercise due care to avoid exposing longshoremen to harm from hazards they would encounter in areas, or from equipment, under the active control of the vessel during the repair operation. The court also found that the evidence showed that the United States failed to take reasonably precautionary or remedial steps to prevent or eliminate the dangerous condition. The court awarded damages in the amount of $434,327, including $50,000.00 for loss of consortium. (USDC MDFL, February 15, 2012) 2012 U.S. Dist. LEXIS 19302
JACK UP RIG ON OCS NOT A VESSEL IN NAVIGATION (CONT.)
BARKER V. HERCULES OFFSHORE, INC., ET AL.
Francis Barker, Jr, a welder employed by Frank's Casing, Inc., which was under contract to Hercules Offshore, Inc, was working on board Hercules' mobile offshore jack-up drilling unit, which at that time was attached to the seabed on the Outer Continental Shelf. Barker sustained his alleged injuries when he and his co-welder and longtime best friend Thomas B. Broussard were attempting to remove the pollution/oil pan in order to run a 60" pipe casing underneath the drilling floor. With Barker watching, the pan on which Broussard was standing fell into the ocean floor about 100 feet below. Broussard managed to hang onto a beam for some time, but then lost his grip. Barker was able to hold onto a beam, but he witnessed Broussard fall into the water, striking a beam on the way. Broussard's body was lifted from the water and flown out by helicopter. Barker alleged that he suffered severe permanent psychological trauma and physical pain and suffering, followed later by a cerebral stroke, which he claims was caused by the injuries he suffered from the accident. Barker brought suit under general maritime law and, alternatively, under §905(b) of the LHWCA and under Texas tort law. to the extent it supplements or supplants maritime law, seeking general, special and punitive damages. Hercules removed the suit from state court to federal court. Barker moved to remand to case to state court. In an earlier decision, the court held that a jack up drilling rig affixed to the seabed of the OCS is considered to be a "device" for "the purpose of drilling oil," providing federal jurisdiction under OCSLA, and not a vessel subject to maritime jurisdiction. The court further found that Barker’s claim did not arise from a traditional maritime activity related to navigation or commerce, but out of activities for developing oil and gas on the OCS. Thus there was no admiralty jurisdiction, and removal of his action was not precluded by overlapping jurisdiction. Barker’s motion to remand was denied [see March 2011 Longshore Update]. Barker requested the court to reconsider its ruling that general maritime law was inapplicable, but that the OCSLA and the law of the adjacent state, Texas, applied. The court denied the request and reaffirmed its earlier decision, granting summary judgment in favor of the defendants. (USDC SDTX, February 9, 2012) 2012 U.S. Dist. LEXIS 16326
And on the Admiralty front . . .
INFIRM LEGAL UNDERSTANDING OF THE COURT’S RULES OF NAVIGABILITY
PPL MONTANA, LLC V. MONTANA
PPL Montana, LLC , a power company that owned and operated hydroelectric facilities on several rivers in Montana, and two other power companies, sued the State of Montana, seeking a determination that the company did not have an obligation to pay compensation for its use of riverbeds at locations where its facilities were located. The State filed a counterclaim, contending that it owned the riverbeds under the equal-footing doctrine and could charge rent for their use. The trial court granted the State's motion for summary judgment and the Montana Supreme Court affirmed. The U.S. Supreme Court found that the Montana Supreme Court erred when it found that Montana owned the riverbeds where the company's facilities were located because the rivers in question were navigable at those locations. The state supreme court should have considered the rivers in question on a segment-by-segment basis to assess whether segments of the rivers where the company had its facilities were or were not navigable at the time Montana entered the Union in 1889, and it had failed to do so. The primary flaw in the court's reasoning occurred in its treatment of the question of river segments and overland portage. The principal question before the Court concerned discrete segments of otherwise-navigable rivers which were sufficiently obstructed that commercial travelers had to portage around them. Did the need to portage mean the river segment was not navigable? The Court answered in the affirmative: The need to portage defeats navigability for purposes of establishing state title, unless the portage was so short the segment would have no commercial value. The Court declined to address a third issue – which party had the burden of proof in demonstrating navigability at statehood. The Court said its clarification that a segment-by-segment approach is required, that the touchstone is whether the segment required a portage, and that post-statehood use is relevant only insofar as it involved vessels of the same sort used in commercial navigation at statehood were enough to resolve the case. Finding that the Montana Supreme Court's ruling was based on an infirm legal understanding of the Court's rules of navigability for title under the equal-footing doctrine, in a unanimous opinion the Supreme Court reversed the Montana Supreme Court's ruling that Montana owned the riverbeds at issue and could charge for use of those riverbeds, and remanded the case. (U.S. Sup. Ct., February 22, 2012) 2012 U.S. LEXIS 1686
STATE COURT PETITION PROVIDED SUFFICIENT NOTICE OF CLAIM (CONT.)
IN RE: ECKSTEIN MARINE SERVICE L.L.C.
Lorne Jackson sued Marquette Transportation, Gulf-Inland, LLC (formerly Eckstein Marine Services) in state court seeking damages for injuries he allegedly sustained while working as a seaman on the their tugboat. Marquette commenced a proceeding under the Limitation of Shipowners' Liability Act and Supplemental Admiralty Rule F in federal court, and obtained a stay of Jackson’s state court action. Jackson moved to dismiss the federal case or, in the alternative, to dissolve the stay and lift the injunction entered by the federal court to permit him to pursue his state court suit. Jackson's motion to dissolve the stay was granted in an earlier proceeding [see March 2010 Longshore Update]. Jackson then moved to dismiss on the ground that Marquette did not file its limitation proceeding within six months after it received written notice of the claim in the form of the state-court lawsuit. Marquette responded that the documents in support of Jackson’s motion must be disregarded or the motion must be treated as one for summary judgment; and, if treated as a motion for summary judgment, Marquette contended there were fact issues precluding summary judgment . The court found that the state court petition did provide sufficient notice to Marquette to trigger the six-month period for filing the limitation proceeding. Since Marquette failed to file its limitation action within the six-month time frame, the court dismissed the limitation action under Rule 12(b)(1) of the Federal Rules of Civil Procedure [see September 2010 Longshore Update]. Marquette appealed, challenging the district court's dismissal of its limitation action as untimely and treatment of Jackson's motion to dismiss as an attack on subject matter jurisdiction. The appellate court began its review by noting that it had previously held that a party alleging a limitation petition was not timely filed challenged the district court's subject matter jurisdiction over that petition. Marquette contended the appellate court was not bound to follow this precedent because filing deadlines are never jurisdictional. The court rejected this argument as simply inaccurate. The appellate court held that, because a challenge to the timeliness of a limitation action is a challenge to the district court's subject matter jurisdiction and because Marquette had notice Jackson was mounting such a challenge in his motion to dismiss, the district court did not err by construing Jackson's motion as a Rule 12(b)(1) jurisdictional attack. Marquette next argued that the district court erred by dismissing its limitation action because the complaint was filed before the six-month deadline expired. Marquette maintained that Jackson's letter demanding a $3 million settlement payment was the first communication it received revealing a reasonable possibility that Jackson's claim would exceed $750,000. Because it filed its limitation petition only six weeks later, Marquette argued, it did not breach the Limitation Act's timeliness requirement. However, the appellate court found that Jackson's state court complaint established a reasonable possibility that his claim might exceed $750,000, the value of the vessel involved, putting Marquette on notice that it would have to defend itself against a claim that might fall under the Limitation Act. Marquette argued the complaint never indicated a dollar amount sought, and that it was filed before the full extent and permanence of Jackson's injuries were definitively known. However, the appellate court found that Marquette’s argument failed to recognize that the claimant need only raise a "reasonable possibility" that the damages sought will exceed the value of the vessel. If anything, Marquette's investigation into the incident after it received Jackson's complaint should have demonstrated that there was more than a reasonable possibility that Jackson's claim might exceed $750,000. The judgment of the district court was affirmed. (5th Cir, February 22, 2012) 2012 U.S. App. LEXIS 3480
THE JUDGE AND JURY DID ME WRONG! NOT!
CHAPMAN V. ENSCO OFFSHORE COMPANY
Bud Chapman worked for ENSCO for approximately five years as an electrician on board ENSCO oil rigs. Chapman allegedly sustained Freon burns when he removed gauges from a HVAC unit. ENSCO contended that Chapman did not close the shut-off valve correctly. After his injuries, Chapman underwent several months of treatment, and contended that he still has restricted use of his left hand. Chapman did not return to work at ENSCO, nor has he resumed any type of offshore work. Chapman filed suit against ENSCO, asserting negligence under the Jones Act, unseaworthiness, and claims for maintenance and cure. After a trial, the jury found against Chapman on all of his claims. Chapman appealed the final judgment, claiming the district court erred in excluding an incident investigation report as inadmissible hearsay, and argued the jury clearly erred by finding that ENSCO was not negligent in a manner which caused the injuries to Chapman’s hands. Reviewing the district court’s evidentiary rulings for an abuse of discretion, the appellate court found none, Prior to trial, ENSCO had filed a motion in limine, arguing that the incident investigation report was evidence of subsequent remedial measures because the report contained several suggested corrective measures, and was therefore inadmissible. The district court ruled that the document was inadmissible hearsay and did not reach the subsequent remedial measures issue. Chapman argued on appeal that the report falls within the business records exception to the general rule excluding hearsay. The appellate court rejected the later argument finding that Chapman had failed to cite anything in the record establishing that the document met the requirements for invoking that exception. Additionally, the mere fact that the author of the document testified at trial had no bearing on whether the document itself was hearsay. The appellate court construed Chapman’s argument, that the jury’s verdict that ENSCO was not negligent in a manner that caused his injury was clearly erroneous, as a challenge to the sufficiency of the evidence supporting the jury’s verdict, and therefore a challenge to the district court’s failure to grant judgment as a matter of law. The court went on to find that there was ample evidence adduced at trial to support a finding that any negligence was solely Chapman’s. The final judgment of the district court was affirmed in all respects. (5th Cir, February 24, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 4009
LACK OF JURISDICTION V. FAILURE TO STATE A CLAIM
HOLLOWAY V. PAGAN RIVER DOCKSIDE SEAFOOD, INC. EL AL.
Timothy Holloway commenced an action under the Jones Act, against his former employer, Pagan River Dockside Seafood, Inc. and its chief operating officer, Joseph Melzer, alleging in his that he was a seaman and that he had been injured in the course of his employment by their negligence. Holloway claimed that he leased a boat from Pagan River and Melzer, who then paid him for his catch of oysters or crabs, deducting a fee from the proceeds for use of the vessel. Holloway further alleged that, as he was attempting to unload a catch on Pagan River's dock, he was injured when a conveyor belt moved and trapped his hand. Holloway claimed that the conveyor belt was improperly secured and that his injury was a result of Pagan River’s negligence. Following an evidentiary hearing, the district court granted the Pagan River’s motion to dismiss Holloway's complaint under FRCP 12(b)(1) for lack of subject matter jurisdiction. The court concluded that Holloway had not adequately demonstrated that he was a seaman or that his injury occurred during the course of his employment as a seaman. In their motion to dismiss, Pagan River contended that the court did not have subject matter jurisdiction as Holloway was, in fact, not their employee; he was not a seaman; and he had not been injured in the course of his employment as a seaman. Instead, Pagan River argued that Holloway was a self-employed independent contractor. Holloway responded with an affidavit, in which he reiterated the allegations of his complaint. Holloway appealed the district court’s ruling, contending that the district court erred in dismissing his complaint for lack of subject matter jurisdiction. He argues that the evidence presented to the district court—through affidavits and pay records—showed that his employment was substantially connected to his vessel and that he should therefore properly be considered a Jones Act seaman. The appellate court observed that Holloway had sought to state a claim under the Jones Act, a federal cause of action over which federal courts have jurisdiction. And in stating his claim, he alleged each of the elements of a Jones Act claim. He asserted that he was employed as a seaman connected to a vessel; that he was injured in the course of his employment; and that his employer's negligence caused his injury. While the appellate court acknowledged that the facts to support these conclusory allegations appeared to be thin, it could hardly be asserted that Holloway's claim is not colorable, or is made solely for the purpose of obtaining jurisdiction, or is so wholly insubstantial and frivolous that an invocation of federal jurisdiction should not be recognized. Rather, the disputes over whether, in alleging a Jones Act claim, Holloway will be able to prove the elements of the cause of action are matters that if resolved one way will entitle Holloway to relief and if decided another way will result in dismissal of his action. The appellate court concluded that the allegations contained in Holloway's complaint provided an adequate basis to invoke the Jones Act and thus to require the district court to exercise federal jurisdiction over the case. The court further admonished that the fact-intensive nature of the remaining issues necessitated the further development of the record and the application of procedures other than those in Rule 12(b)(1). The appellate court reversed the district court's order dismissing this case and remand for further proceedings. (4th Cir, February 27, 2012) 2012 U.S. App. LEXIS 3897
CONVERSION DISORDER VS. MALINGERING - MORE TO FOLLOW
WEEKS MARINE, INC., ET AL. V. STOKES
Clarence Stokes was a putative seaman employed by Atlantic Sounding Company, Inc. aboard one of its dredges. Stokes claims he fell from a ladder in a hold where at least four fellow employees were present, none of whom witnessed or heard the alleged fall. Stokes was taken to the local hospital, where he was examined in the emergency room (ER). Stokes did not have a scratch on him. However, because of Stokes’ exaggerated complaints in the ER, Stokes was admitted to the hospital where he underwent a plethora of diagnostic studies and consultant examinations. He was eventually diagnosed with a “conversion disorder vs. malingering.” Atlantic Sounding, following the hospital’s recommendation attempted to transfer Stokes to a psychiatric unit for evaluation, but Stokes refused, and arranged his own transportation to another hospital near his home in Mississippi. Atlantic Sounding filed an action, in the Southern District of Mississippi, seeking a declaratory judgment as to whether Stokes was entitled to maintenance and cure. Five days later, Stokes filed a lawsuit in the Eastern District of Louisiana, seeking damages under the Jones Act, among other things. One day later, Stokes filed a motion to dismiss his Louisiana case, which was granted. More than four months later, Stokes, represented by different counsel, re-filed his lawsuit in the Eastern District of Louisiana; this time requesting a jury trial. Atlantic Sounding filed a motion in the Louisiana case, requesting that it be transferred to the Mississippi court. While that motion was still pending, Stokes filed a Motion to Dismiss or, Alternatively, to Transfer Venue with the Mississippi court. In the court’s opinion, although
Stokes is a resident of Mississippi, the accident at issue occurred on board a dredge in Louisiana. The court surmised that it would be easier to investigate, conduct discovery, and try the case in the Eastern District of Louisiana. Likewise, in the court’s opinion, the Louisiana court presented a more convenient venue for most of the potential fact witnesses in this case. The court noted that Stokes’ medical records and treating doctors appeared to be split evenly between Mississippi and Louisiana. Additionally, the court found that there were more identified potential witnesses residing outside its jurisdiction than within it. The court rejected Atlantic Sounding’s argument that Stokes waived his right to request a transfer by initially filing suit in Louisiana and then voluntarily dismissing that suit, finding that Atlantic Sounding had failed to cite any case law in support of their argument that one may waive his right to request a transfer of venue. Finally, the court rejected Atlantic Sounding’s argument that Stokes’ transfer request must be denied by operation of the “first-to-file rule,” holding that the “rule yields to the convenience of parties and witnesses, and the interests of justice.” The court granted in part Stokes’ s Motion to Dismiss or, Alternatively, to Transfer Venue and ordered the case transferred to the Eastern District of Louisiana. (USDC SDMS, February 1, 2012) 2012 U.S. Dist. LEXIS 11760
DISCOVERY IS AS SEARCH FOR THE TRUTH, NOT A GAME OF “GOTCHA.” REALLY?
PACE V. WEEKS MARINE, INC. ET AL.
Hollis Pace was employed as a seaman for Atlantic Sounding Company, Inc. and was assigned to a Weeks Marine, Inc. Dredge at the time of his alleged injuries. After Pace filed his Jones Act suit, alleging causes of action under the Jones Act and general maritime law, while discovery in the case was ongoing, but before Pace had been deposed, Pace demanded that Atlantic Sounding produce to him any surveillance film, among other things, that Atlantic Sounding had surreptitiously recorded of Pace. Atlantic Sounding did not object to production of its surveillance film to Pace, but moved for a protective order, asking the court to withhold it from production to Pace until after Pace’s deposition, arguing that the court has discretion to sequence the subject discovery and good cause supported the requested protective order because the surveillance film is work product. Pace opposed the motion for protective order. Magistrate Wilkinson rejected both of Atlantic Sounding’s arguments, indicating it was “convinced” that Atlantic Sounding must produce the requested surveillance film before Pace’s deposition, reasoning that discovery is not a game of ambush or "gotcha," but a search for the truth. The magistrate dismissed all of the contrary cases cited by Atlantic Sounding, finding instead that the best way to get at the truth was for a full deposition of Pace to occur after both sides had reviewed the surveillance film, so that thorough examination concerning any perceived inconsistencies in Pace’s case could occur in the full light of all available information, rather than in the dark. The magistrate also summarily dismissed Atlantic Sounding’s work product argument, opining that no “evidence” had been submitted that the surveillance film had been made pursuant to FRCP 26(b)(3), notwithstanding the fact that Atlantic Sounding’s motion specifically asserted that the surveillance had been obtained pursuant to FRCP 26(b)(3). has been submitted. Even if it had been, the magistrate found that Atlantic Sounding had failed to show good cause to support the issuance of a protective order. Atlantic Sounding’s motion for a protective order was denied. (USDC EDLA, February 23, 2012)
Updater Note: Unlike Magistrate Wilkinson, who obviously has led a sheltered judicial existence, shielded from the blatant insurance fraud that prevails the maritime industry, I would argue that anyone who does not believe that holding a surveillance film until after deposition testimony, in order to obtain a better picture of the truth, is a person who truly represents the epitome of stereotypical thinking. A timely FRCP 72 objection to the magistrate’s ruling has been filed.
PUNITIVE DAMAGES FOR FAILING TO PURCHASE PRESCRIBED MEDICATION?
MANUEL V. BASIC MARINE SERVICES, INC., ET AL.
Broady Manuel allegedly sustained injuries while working as a driller on an inland workover barge. Manuel alleged he was walking on the drill floor on the upper deck of the rig when he slipped and fell in a substance on the deck. Manuel’s accident was admittedly unwitnessed; however, Manuel claims he immediately notified a floorhand. The following day, an accident report was prepared and the Basic Marine authorized evaluation and treatment. Manual was released to restricted duty as tolerated. Manuel filed a seaman’s lawsuit against Basic Energy, alleging he sustained personal and psychological injuries as a result of the negligence of Basic Energy and its employees, and/or unseaworthiness of the drilling barge, rendering Basic Energy liable under the Jones Act and the general maritime law. Manuel also petitioned for punitive damages, alleging that the company safety man pressured the physician to release him to light duty and willfully, wantonly and arbitrarily interfered and influenced his health care provider denying him the cure to which he was entitled. Basic Marine moved for partial summary judgment against Manuel, arguing there was no genuine issue as to any material fact and Basic Marine was therefore entitled to a partial summary judgment as a matter of law, dismissing any and all claims for punitive damages, compensatory damages, and attorney's fees being asserted by Manuel in connection with the handling of his cure and/or medical treatment. by the employer. Manuel opposed the motion, arguing that the company safety man pressured the physician to release him to light duty and exerted undue influence upon a company doctor to try to prevent a severe injury from being classified as a lost time accident and withheld prescribed pain medication, making them liable for compensatory and punitive damages. Manuel argued that Basic Marine’s actions constituted the type of willful and wanton conduct in connection with the duty of a Jones Act employer to afford a seaman with cure that is sufficient to support a punitive damage claim for such conduct. However, the court noted that the record showed the doctor did, notwithstanding any alleged efforts to influence him to the contrary, provide treatment, which itself was not argued to have been so inadequate, lacking or problematic as to have been a violation of the company's obligation to provide cure to Manuel. Nevertheless, the court found that it was unclear whether the company's obligation to provide cure, extended to or created a duty to actually obtain prescribed medication for a seaman otherwise capable of obtaining the medication himself- separate from the obligation to pay for such medication. The court noted that this, albeit unique, legal nuance had not been addressed by the parties and was not one without legal consequence. Furthermore, the court found that there was a clear factual dispute as to what occurred between and among the doctor, company representative, and Manuel, and as to the prescribed pain medication. The court concluded that neither party had properly addressed the law under which such a unique factual clam would lie, and neither had cited jurisprudence showing courts have treated a claim like the one alleged by Manuel as a violation of the duty to provide cure. Considering the lack of clarity as to what law could or should apply to the unique factual scenario presented, the court held the Basic Marine had failed to carry its burden and denied the motion for partial summary judgment. (USDC WDLA, January 27, 2012) 2012 U.S. Dist. LEXIS 10599
DON’T ALLOW THAT GREAT SURVEILLANCE. IT WILL PREJUDICE MY CASE.
DEARMAN V. TRANSOCEAN OFFSHORE DEEPWATER DRILLING, INC.
David Dearman was employed by Transocean Offshore Deepwater Drilling, Inc. as a seaman on a Transocean drillship. Dearman allegedly sustained back injuries while "pulling slips" during drilling operations. Dearman eventually underwent a microdiscectomy for his alleged injuries and filed suit against Transocean pursuant to the general maritime law and the Jones Act, alleging his injuries were the result of Transocean's negligence and the unseaworthiness of the drillship. Dearman also alleged that Transocean failed to timely pay cure or adequately pay maintenance. Transocean answered the complaint, denying the allegations brought against it and raising a number of affirmative defenses. During the discovery phase of the case, Dearman filed a motion seeking an order from the court striking surveillance videotapes of Dearman conducted by Transocean on the basis that the footage lacks authenticity, accuracy, reliability, completeness, as well as posing the threat of significant prejudice. Transocean opposed the motion, claiming that the surveillance tapes at issue had been proffered to Dearman in full, without editing, and arguing that the surveillance footage was relevant because it went to the heart of Dearman’s claims. The court found that no authenticity issues existed with respect to the surveillance video footage, that the footage was relevant to the case, and denied Dearman’s motion. The court noted that Dearman would have the opportunity at trial, particularly cross-examination, to raise its concerns with the surveillance footage. Dearman next moved to strike redundant testimony by seeking an order from the court barring Transocean from presenting testimony of four of its physicians regarding the surveillance footage, which they had all viewed. Transocean acknowledged that it provided the surveillance footage to its physician witnesses, as well as Dearman’s treating physicians, and that it would be appropriate for the testifying physicians to discuss the entirety of the material they reviewed in forming their opinions, denying that any of the physician testimony would be duplicitous. The Court found that it would be appropriate for Transocean's physician witnesses to explain the sources they relied upon in reaching their expert opinions, denying Dearman’s motion and noting that Dearman could raise its concerns with such testimony during trial. Finally, the court granted Dearman’s motion to exclude his treating physician’s bankruptcy records and denied a motion to exclude testimony from Transocean’s economic expert. (USDC EDLA, February 10, 2012) 2012 U.S. Dist. LEXIS 16852
COURT DENIES PUNITIVE DAMAGES OVER DISPUTED CURE PAYMENTS
AHMED v. KEYSTONE SHIPPING CO. ET AL.
Hussein Ahmed worked as a seaman on board a vessel operated by Keystone Shipping Co., Key Lakes, Inc., and Key Lakes I, Inc. (collectively, "Key Lakes"). Ahmed allegedly slipped and fell down a companionway in the cargo tunnel of the vessel, twisting his ankle. A physician diagnosed Ahmed with a sprained ankle and determined he was fit for duty. Ahmed later underwent spinal surgery due to a herniated disk , which he claimed was causally related to the accident on the vessel. Key Lakes paid for Ahmed’s surgery and for medical bills Ahmed incurred prior to the surgery. Ahmed then began treatment with a neurophysiologist and a psychiatrist. Key Lakes refused to pay the medical bills or either. Ahmed filed a three-count Complaint alleging negligence, breach of warranty, and failure to pay maintenance and cure. Ahmed then moved for partial summary judgment and sanction on his failure to pay cure cause of action. Key Lakes disputed that the unpaid cure related to the treatment of the work-related injury. Additionally, Key Lakes argued that Ahmed needed its authorization. The court initially note that Key Lakes was unable to cite to any authority requiring Ahmed to obtain the employer’s approval to change physicians. When asked for authority for the proposition, Key Lakes conceded that there is no requirement that a seaman obtain permission, but argued that it was the "normal practice" to do so. The court rejected this premise, holding that Ahmed’s failure to obtain Key Lakes’ permission to see a neurophysiologist and a psychiatrist was not a proper basis to cease paying cure benefits, so long as the treatment is appropriate. The court found that the treatment rendered by the neurophysiologist involved physical therapy, pain medication, and muscle relaxants. Ahmed offered evidence that the treatment stemmed from the original injury, and Key Lakes failed to offer any evidence to refute Ahmed’s claim. Therefore, the court granted Ahmed’s motion as to the expenses of the neurophysiologist. With respect to the psychiatric treatment Ahmed received, the court found that there was a genuine issue of material fact as to whether Ahmed’s depression was caused by his limited functionality because of the injury, or whether it was a long-time preexisting condition. Thus, the court denied Ahmed’s motion as to the expenses incurred from his psychiatrist. The court also denied Ahmed’s request that Key Lakes be sanctioned in the form of compensatory and punitive damages, holding that Key Lakes behavior was not arbitrary, capricious or recalcitrant, as Key Lakes paid all of Ahmed’s medical expenses for his original treating physicians, including Ahmed’s surgery. Ahmed’s motion for partial summary judgment was granted in part and denied in part. (USDC EDMI, February 8, 2012) 2012 U.S. Dist. LEXIS 15339
CONTEMPT IS NOT THE PROPER REMEDY IN A MAINTENANCE & CURE CASE
LEGER vs. OFFSHORE STAFFING SERVICES OF ACADIANA LLC
Michael Leger filed a complaint under the Jones Act and general maritime law against his employer, Offshore Staffing Services of Acadiana, LLC (OSSA), alleging that he was injured while working as a seaman aboard their jack-up rig. Leger further alleged that OSSA arbitrarily and capriciously failed to pay maintenance and cure for the duration of his injury. Based on a prior motion by Leger, the court had ordered OSSA to reinstate maintenance payments to Leger in the amount of $25.00 per day starting December 1, 2011; pay cure from that date forward; pay back maintenance in the amount of $4,200.00, and pay past cure in the amount of $19,285.16. Ledger now files a motion for contempt, alleging that OSSA had not paid his past medical bills, had refused to pay for and/or approve medical treatment, and was no longer paying maintenance, despite the court’s prior order. OSSA asserted that it has not paid the amount previously ordered by the court because it is financially unable to do so. The parties stipulated that OSSA owes Leger $20,785.16 in past due maintenance and cure. The court found that OSSA had not complied with the court’s prior order and instructed the parties to brief the issue of whether or not contempt was the appropriate remedy for OSSA's failure to comply. Neither party was able to locate authority which specifically addressed the contempt question. Similarly, the court was unable to find authority directly on point. The burden is on the moving party, Leger, to show his entitlement to the relief which he seeks, and the court concluded the Leger had failed to carry that burden. The court expressed it belief that the remedy for failure to pay maintenance and cure as ordered is execution on the property of the employer or seizure of the vessel. Therefore, the court recommended judgment be entered in favor of Leger for unpaid maintenance and cure in the amount stipulated to, with maintenance continuing to accrue in the amount of $25.00 per day from February 11, 2012 forward, plus pre-judgment interest. The motion for contempt was denied. (USDC WDLA, February 10, 2012) 2012 U.S. Dist. LEXIS 18999
ALL TOWING VESSELS ARE NOW SUBJECT TO INSPECTION BASED ON STATUTE
HABEL V. GROVE FARM FISH & POI, LLC, ET AL.
Daniel Habel was employed as a diver and offshore crewman by Grove Farm Fish & Poi, LLC, when he allegedly suffered diving decompression sickness ("DCS" or "the bends") in the course of his employment. Habel filed a seaman’s complaint, alleging Jones Act negligence, unseaworthiness and entitlement to maintenance and cure. Habel then moved for partial summary judgment on the grounds that Grove Farm was liable under the Jones Act based on violations of U. S. Coast Guard ("Coast Guard") diving regulations, claiming negligence per se. Habel alleged that Grove Farm permitted scuba diving outside the no-decompression limits on a daily basis and scuba diving below 130 feet at least two or three times per week; did not have a decompression chamber, decompression or treatment tables, or breathing gas for treatment of decompression sickness on site; and did not have work rules ensuring proper detection or reporting of DCS. In opposition, Grove Farm argued that Habel was not entitled to summary judgment on his negligence per se claim because the cited Coast Guard regulations do not apply, because the Coast Guard has never required its towing vessel to have a certificate of inspection and it was not an inspected vessel when Habel was an employee. Grove Farm noted that the Coast Guard and Maritime Act of 2004, 46 U.S.C. §§ 3301 et seq., to add towing vessels to the classes of vessels that require inspection, has no force of its own without the administrative adoption of implementing regulations. Grove Farm argued that the Coast Guard regulations governing the inspection of towing vessels have not been established and were not in effect while Habel was employed. Grove Farm also maintained that the dive operations regulations cited by Habel did not apply because all of its dive operations took place from an uninspected vessel. Additionally, Grove Farm contended that Habel failed to disclose that he had suffered DCS prior to his employment and would not have been hired as a diver had he disclosed this fact because it makes a diver more susceptible to future problems with DCS. Grove Farm maintained that they held safety meetings to discuss safety issues, including the need to report any accidents or injuries immediately, and the location and availability of the nearest decompression chamber was discussed. Finally, Grove Farm argued that they did not allow Habel to dive outside of no-decompression limits or deeper than 130 fsw. The court granted partial summary judgment as to Habel’s seaman status, noting that the record shows that he contributed to the mission of the two vessels in navigation and had a substantial connection to the vessels in navigation, spending at least 95% of his time in the service of both. The court also agreed with Habel that §3301(15) classifies all "towing vessels" as vessels subject to Coast Guard inspection, and that the action of classification was complete and effective upon enactment of the statute in 2004. Although Grove Farm’s towing vessel may not be required to be inspected by current Coast Guard regulations, it did not follow that it is not a "towing vessel" subject to §3301(15). In other words, §3301(15) brings Grove Farm’s towing vessel within the reach of the inspection statute, regardless of the ultimate inspection regime to be established by as-yet unpromulgated regulations. To the extent Grove Farm argued that the commercial diving operations regulations set forth in 46 C.F.R., Part 197, Subpart B do not apply pursuant 46 C.F.R. §197.202, the court disagreed. Instead, the court agreed with Habel that, under its plain meaning, the regulation instead applies to all vessels required to have a certificate of inspection, regardless of location, or all vessels, inspected or uninspected, connected with a deepwater port or engaged in activities on the Outer Continental Shelf. Grove Farm’s towing vessel falls under the category of "all vessels required to have a certificate of inspection," pursuant to §3301(15). The court therefore found it irrelevant whether Grove Farm’s towing vessel engaged in deepwater port or Outer Continental Shelf diving operations. The court therefore concluded that the Coast Guard commercial diving operations regulations applied to Grove Farm’s diving operations. With respect to Jones Act liability and the defense of comparative fault, the court found that there were disputed issues of fact regarding the depth of Plaintiff's dives, whether Habel performed any dives outside of no-decompression limits, and whether he was injured while at work for Grove Farms or on his own time. Habel’s Motion for Partial Summary Judgment was granted in part, as to seaman status under the Jones Act, and as to the applicability of Coast Guard commercial diving operations regulations, but denied in all other respects. (USDC HI, February 27, 2012) 2012 U.S. Dist. LEXIS 24754
THERE HAS TO BE A VESSEL TO SUPPORT AN UNSEAWORTHINESS CLAIM (CONT.)
KAHUE V. PACIFIC ENVIRONMENTAL CORPORATION, ET AL.
Cedric K. Kahue filed a Complaint against Pacific Environmental Corporation (PENCO), seeking recovery under the Jones Act, for injuries allegedly incurred while employed by PENCO as a seaman. PENCO is in the business of providing environmental remediation and spill cleanup services, primarily on land. Only a small percentage of PENCO's work takes place at sea, including marine spill responses, deploying containment booms around vessels for fueling, and transporting people and equipment to and from job sites. Kahue claimed that he was injured while preparing for a hazardous waste spill response, when a co-employee dropped an unopened bale of cleaning rags, weighing forty to fifty pounds, in a land-based storeroom, hitting Kahue on the head, leaving him a partial quadriplegic. Kahue asserted various causes of action, including negligence, unseaworthiness, and maintenance and cure. PENCO moved for summary judgment on all of Kahue's claims on the grounds that he may not recover under the Jones Act because he did not qualify for seaman status, and was already receiving lifetime benefits under the LHWCA. Alternatively, PENCO sought partial summary judgment on Kahue unseaworthiness claim, because no vessel was involved. In opposition, Kahue argued that he is a Jones Act seaman, and that this determination is a mixed question of law and fact, which is for the trier of fact and not appropriate for summary judgment. Under the summary judgment standard, the court found that PENCO had not met its burden of establishing that Kahue did not have a connection to a vessel. The court found the Kahue had presented evidence that he had a connection to PENCO's and other vessels and that he contributed to the accomplishment of the vessels' mission, namely, marine clean up. As to the second prong of the Chandris test, whether his connection to the vessel was substantial in duration, the court found that there is a question of fact as to this material issue, and, therefore, summary judgment is not appropriate. Turning to PENCO’s alternative motion for partial summary judgment. The court found that Kahue was not injured by a vessel, a piece of the ship's equipment, or an appurtenant appliance. Rather, Plaintiff was injured while supervising the loading of a truck with supplies to clean up a roadside oil spill. The court therefore granted PENCO's Motion as to Kahue’s unseaworthiness claim [see January 2012 Longshore Update]. PENCO filed a motion seeking reconsideration asking the court to reconsider its prior order and address their argument that Kahue is not entitled to pursue seaman's remedies because he was not in the service of a vessel at the time of his injury. In his memorandum in opposition, Kahue argued that courts reject such a "snapshot" test. Assuming, arguendo, that he was working on a land-based job at the time of his injury, Kahue argued that it is a material issue of fact whether he was still in service of a vessel or group of vessels. The court initially noted that while it may not have explicitly ruled on the merits of PENCO’s assertion concerning service of the vessel, such finding was subsumed within the court's prior ruling that granted summary judgment for unseaworthiness and denied “in all other respects." Nevertheless, the court took the opportunity to clarify that PENCO had not met its burden on summary judgment with respect to the specific argument regarding whether Kahue was in the service of a vessel at the time of his injury, and the legal consequences thereof. PENCO’s motion for reconsideration/clarification was denied. (USDC HI, January 30, 2012) 2012 U.S. Dist. LEXIS 10483
KNOWLEDGE OF DEFECTIVE CONDITION MAY BE IMPUTED TO CHARTERER
STEWART, ET AL V. LESTER J. PLAISANCE, INC. ET AL
This litigation arose out of an allision involving a vessel owned by Lester J. Plaisance, Inc. and a barge, following an alleged throttle malfunction. Plaisance had entered into a bareboat charter agreement with Global Oilfield Contractors, LLC and that, at some undetermined time thereafter, Global, in turn, sub-chartered the vessel in another bareboat charter agreement to Grand Isle Shipyard, Inc. Three men, Jermaine Stewart, Gary Smith, and Dwayne Vessel, were aboard the vessel and allegedly injured in the allision. They filed claims for negligence and unseaworthiness under the Jones Act and general maritime law against Plaisance, Global and Grand Isle. Plaisance and Global filed petitions for limitation of liability. Global moved for summary judgment, arguing that it is not liable for unseaworthiness because it did not have operational control at the time the allegedly unseaworthy condition was created or when the accident occurred, and that it cannot be sued under the Jones Act or for maintenance and cure because it did not employ any of the individual claimants. The individual claimants opposed the motion based on their allegation that Global knew or should have known that the throttle on the vessel was defective and in need of repair prior to commencing operations. In reply, Global argued that the only material fact is that the vessel was sub-chartered and operational control was transferred prior to the accident. The court began its analysis by noting that the timing issue pertaining to Global's alleged knowledge of the allegedly defective throttle was an important factor for consideration. There was evidence submitted that Global was aware of the defective throttle prior to entering into the sub-charter. Even if Global was not in operational control of the vessel at the time of the accident, the court noted that liability may derive from its involvement at the time the condition was created or in the event that condition was not brought into play by the negligence of the sub-charterer. The motion for summary judgment filed by Global was partially granted as to the Jones Act and maintenance and cure claims and partially denied as to the unseaworthiness and negligence claims. (USDC EDLA, February 27, 2012) 2012 U.S. Dist. LEXIS 24427
SEAMAN’S EXCLUSIVE REMEDY FOR EMOTIONAL DISTRESS IS WORKERS’ COMP
KLIP V. MARINE SPILL RESPONSE CORP.
John Klip was employed by Marine Spill Response Corporation (MSRC) as a chief engineer for almost eight years, when he was discharged. Klip brought a wrongful termination action against MSRC, alleging claims for termination in violation of public policy and intentional infliction of emotional distress (IIED). Klip claimed that during his employment and immediately prior to his termination, he received no significant criticism of his work. Klip alleged that the vessel captain favored the hiring of female crew members and therefore terminated him because of his age and sex. Klip alleged that his termination violated public policy because he was terminated without cause shortly after turning 65 years of age and because he was male. He was a 65-year-old male crew member working under a much younger female captain. MSRC moved to dismiss Klip’s cause of action for intentional infliction of emotional distress and to other portions of Klip’s complaint. MSRC argued that Klip’s IIED claim should be dismissed because workers' compensation is the exclusive remedy for what may constitute IIED in the workplace. Klip asserted in his opposition that even if workers' compensation is the exclusive remedy for IIED claims stemming from employment termination, he is not entitled to workers' compensation because he was a member of the Merchant Marine and employed onboard a vessel in the navigable waters of the United States, and therefore, the exclusivity rule does not apply. The court found that, under Miklosy, Klip’s claim for termination in violation of public policy could proceed, but found that Klip failed to cites any authority that would permit him to go forward with his IIED claim. Klip also failed to provide any authority to support his seaman argument and the court noted that Klip was not excluded from the state workers' compensation scheme because, unlike other states, the California Labor Code does not exclude persons covered under federal statutes and general maritime law. The court concluded that Klip’s IIED claim was barred because the state worker's compensation act is the exclusive remedy for his emotional distress injuries. MSRC’s motion to dismiss Klip’s claim for IIED was granted without leave to amend.
The court also granted MSRC’s motion to strike Klip’s request for attorneys' fees and costs. (USDC NDCA, February 9, 2012) 2012 U.S. Dist. LEXIS 16026
DOHSA APPLIES TO DEATH CLAIM. NO JURY OR PECUNIARY DAMAGES
LASKY V. ROYAL CARIBBEAN CRUISES, LTD.
Sholem Lasky allegedly sustained an injury while aboard Royal Caribbean Cruises, Ltd.'s ship, which his widow now claims caused Lasky’s death. While walking in his suite aboard the cruise ship, Lasky allegedly fell and hit his head. Lasky was treated by a physician in the onboard medical facilities. The widow that soon after disembarking, Lasky experienced intensifying pain and went to the emergency room. Lasky was admitted to the hospital and a CT scan revealed a fractured neck. Lasky eventually passed away while in the hospital’s ICU. The widow sued Royal Caribbean, maintaining that its negligence caused the wrongful death of Lasky, and seeking non-pecuniary damages and demanded a jury trial. Royal Caribbean moved for partial summary judgment contending that DOHSA governed the widow’s wrongful death claim, because the alleged wrongful acts occurred either in international waters or in the territorial waters of Mexico, and, as such, she could not recover non-pecuniary damages. Royal Caribbean also maintained that a bench trial is required, because DOHSA provides exclusively for an admiralty cause of action. The court observed that, although Lasky’s death occurred on land one month after he disembarked from the ship, DOHSA applied because it was undisputed that Royal Caribbean allegedly breached its duty of care when its employees lifted Lasky into a wheelchair and transported him to the onboard medical facilities. When these actions occurred, the ship was in either Mexico's territorial waters or in international waters. As DOHSA applied to the claim, and since DOHSA does not permit recovery non-pecuniary damages, the court held that the widow’s claim for non-pecuniary damages was not sustainable. The court also noted that while some courts have permitted jury trials in cases involving DOHSA claims, in this case the widow’s claim is solely pursuant to DOHSA and, as such, her entitlement to a jury trial cannot be grounded in a concurrent claim that requires a jury trial. The court granted Royal Caribbean’s motion for partial summary judgment, holding that DOHSA governed the widow’s claim, she was not entitled to recover non-pecuniary damages, and the widow was not entitled to a jury trial. (USDC SDFL, February 6, 2012) 2012 U.S. Dist. LEXIS 14143
POST-INJURY CUSTOM & PRACTICE DICTATE AWARD OF UNEARNED WAGES
SMITH V. WATERMAN STEAMSHIP CORPORATION
Jared Smith filed a putative class action complaint against Waterman Steamship Corporation alleging entitlement to sue as a representative party on behalf of crew members who suffered illness or injury in the service of Waterman’s vessels and were thereafter paid unearned wages sans overtime they otherwise would have earned. Waterman moved for summary judgment, contending that Smith was not entitled to overtime wages because it is not provided for in his collective bargaining agreement (CBA) nor is it Waterman’s common custom or practice to pay overtime wages an injured seaman would have otherwise earned. Waterman noted that it had paid Smith unearned base wages from the date of his injury until he reached maximum medical improvement and was deemed fit for duty. Waterman requested the court to uphold its long-standing custom and practice of calculating unearned wages with reference to base wages only, but exclusive of overtime that may have been earned but for the seaman's injury. The court noted that there was no dispute that Smith, as well as other identified putative class members, routinely worked overtime prior to seeking recovery of unearned wages as a consequence of having been injured. However, circuit precedent demonstrated that the Sixth Circuit determined that unearned wages should be calculated based on the vessel's post-injury custom and practice of calculating unearned wages, absent any modification of unearned wage calculation in the applicable collective bargaining agreement. Both parties agreed that the applicable collective bargaining agreement was silent on the calculating of unearned wages. Because Waterman had, the weighed in favor of granting Waterman’s motion for summary judgment. The court granted Waterman’s motion for summary judgment, dismissed Smith’s claim with prejudice and denied the motion for class certification as moot. (USDC EDMI, February 15, 2012) 2012 U.S. Dist. LEXIS 18783
LACK OF GENERAL AND SPECIFIC JURISDICTION RESULTS IN DISMISSAL
QURAISH V. AMERICAN STEAMSHIP COMPANY, ET AL.
Abduljabbar Quraish made a claim for Jones Act negligence, unseaworthiness, maintenance, cure, and wages under maritime law, seeking damages from U.S. Shipping and American Steamship for lost earnings, pain and serving, and medical expenses. Quraish was a crewmember aboard an American Steamship vessel, when he allegedly sustained injuries after tripping over a crossbar while hosing down an area of the vessel. Shortly following his alleged injury, Quraish was found fit for full and unrestricted employment with American Steamship. Two months later, Quraish began working as a crewmember aboard U.S. Shipping's vessel, where he allegedly injured his shoulder and lower back while hoisting a load. U.S. Shipping found Quraish unfit for duty and Quraish returned home, eventually undergoing left shoulder surgery. American Steamship asserted a third-party claim against U.S. Shipping on the basis of FRCP 14(c). U.S. Shipping moved to dismiss American Steamship’s third party complaint based upon lack of jurisdiction. The court began its analysis by observing that Quraish had not invoked admiralty or maritime law. As a result, the court found it did not have personal jurisdiction over U.S. Shipping. American Shipping and Quraish argued that U.S. Shipping should be subject to the court's jurisdiction because it paid maintenance benefits to Quraish, arranged medical treatment for Quraish in Michigan, and the doctor that Quraish treated with was U.S. Shipping's agent. The court held that these contacts were insufficient to grant the court specific personal jurisdiction. Instead the court found that U.S. Shipping had not reached out to Michigan more than necessary to fulfill its obligations. Its contacts were merely passive. The court found that there were not sufficient contacts to exercise specific jurisdiction over U.S. Shipping. Accordingly, the court dismissed U.S. Shipping from the case. (USDC EDMI, February 22, 2012) 2012 U.S. Dist. LEXIS 21941
Quotes of the Month . . .“A failure is not always a mistake, it may simply be the best one can do under the circumstances. The real mistake is to stop trying."--B.F. Skinner
“Any idiot can face a crisis -- it's the day-to-day living that wears you out."--Anton Chekhov
“Too many people overvalue what they are not and undervalue what they are."--Malcolm Forbes
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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