June 2012
Notes From Your Updater - On May 21, 2012, the U.S. Supreme Court granted the petitions for certiorari in the cases of Director, OWCP v. Boroski, Docket No. 11-926 and Dyncorp International, et al. v. Boroski, Docket No. 11-936 [see November 2011 Longshore Update], vacated the judgment of the 11thCircuit Court of Appeals and remanded the cases to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Roberts v. Sea-Land Services, Inc., 566 U.S. ____ (2012). As my readers will recall, in Roberts, the Supreme Court recently held that in order to support an administrable rule "that will result in equal treatment of similarly situated beneficiaries and avoids gamesmanship in the claims process," an employee must be “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf [see April 2012 Longshore Update]. This holding was in direct opposition to the 11th Circuit’s holding in Boroski.
On May 14, 2012, the U.S. Supreme Court denied the petition for certiorari filed in the case of Dise v. Express Marine, Inc. et al., Docket No. 11-9241. This was the case in which the 5th Circuit upheld a summary judgment in favor of Express Marine on its counterclaim against a seaman for damages to its propertyin the amount of $3,254.96, after the seaman’s Jones Act claim was denied [see December 2011 Longshore Update]. Congratulations again to JoAnne Zawitoski, of Semmes Bowen and Semmes, Baltimore, MD, on a grand slam victory in this case.
The Georgia Ports Authority is considering whether to appeal a recent jury verdict that awarded more than $5.6 million to a longshoreman, Kirk Deweese, on May 10, 2012, for injuries he allegedly sustained in a collision at the Port of Savannah. Damages in the jury award, which was returned in less than an hour after deliberations began, included $87,759.95 in medical expenses, $651,000 in past lost wages, $1,674,000 in future lost wages and $3,250,000 for pain and suffering. Deweese had alleged injuries to his neck, back and hip, that supposedly required nine surgeries, after his truck jack knifed at the terminal. Deweese was driving a jockey truck for Universal Maritime/APM, when a ports authority employee, driving a top lift, backed into Deweese’s vehicle causing the jack knife. Deweese claimed the injuries left him unable to work as a longshoreman. Deweese had asked for $2.55 million in damages. Shortly after the jury announced its verdict, Deweese was arrested for attempting to bring a loaded gun into the courthouse. Deweese was stopped by security officers from entering the courthouse when a scanner revealed that he had a .44-caliber revolver in a bag. The officers confiscated the gun and later arrested Deweese on charges of carrying a pistol without a license, carrying a concealed weapon and contempt of court. Deweese was released from jail after posting a $4,000 bond. He claimed that he accidentally placed the gun in a bag that contained papers his lawyer needed urgently in the courthouse. In the rush to deliver the papers, Deweese said he forgot to take the gun out of the bag.
WORKERS’ COMP IS YOUR SOLE REMEDY, BUT NOT UNDER THE LHWCA
SALINAS V. MEAUX SURFACE PROTECTION, INC.
Orlando Salinas and his supervisor, Octave Samuel, were both employed by Meaux Surface Protection, Inc. Salinas was a passenger in a vehicle driven by Samuel from Louisiana to Texas after they came in from working offshore. Samuel was drinking during this trip and crashed into a wall. Salinas was thrown from the vehicle and allegedly suffered injuries. Salinas filed a claim for compensation under the LHWCA. Meaux controverted the claim arguing that Salinas was not within the course and scope of his employment at the time of the accident, and that the claim did not meet the requirements for LHWCA jurisdiction. Meaux disputed Salinas’s claim that Samuel and Salinas were within the course and scope of their employment at the time of the accident. Meaux argued that Salinas opted not to take the company-provided transportation between his home in Houston and the work site in Louisiana. Instead, he rode with Samuel whenever they worked together. Salinas contended that Meaux's Safety Coordinator ordered him to ride with Samuel from a Louisiana heliport to Houston. Salinas further claims that they were all on the payroll during this drive, and that Meaux paid for Samuel's gasoline for the trip. After an informal conference, OWCP denied Salinas's claim, finding that Salinas does not have the required situs necessary to establish jurisdiction pursuant to the LHWCA. The public highway where the MVA occurred did not have a maritime nexus to invoke LHWCA jurisdiction. Salinas sued Meaux and Samuel in Harris County, alleging-among other things-that Samuel was liable under theories of negligence and negligence per se and that, since Samuel was acting within the course and scope of his employment with Meaux, Meaux was vicariously liable for Salinas's injuries that were proximately caused by Samuel's negligence and negligence per se. Meaux filed both a no-evidence and a traditional motion for summary judgment. In the no-evidence motion, it argued that Salinas's arguments necessarily failed because there was no evidence that Samuel and Salinas were within the course and scope of employment at the time of the accident. In its traditional motion for summary judgment, Meaux asserted that, assuming that all Salinas's assertions were true, Salinas's claims were all precluded by the workers' compensation bar. The trial court granted Meaux's traditional summary judgment on the workers' compensation bar. Salinas non-suited his remaining claims against Samuels, rendering the trial court's summary judgment on his claims against Meaux final. Salinas appealed from the trial court's summary judgment arguing that the trial court erred by allowing Meaux to take different legal and factual positions in two different forums, leaving him without a legal remedy at law. Salinas argued that Meaux took the position, for purposes of LHWCA litigation, that Salinas was not in the course and scope of his job and thus he was denied coverage under LHWCA and then in the tort action Meaux asserted that he was in the course and scope of employment and state or federal workers compensation is his only remedy. Allowing these two different positions, according to Salinas, is unconscionable and should be barred by equitable estoppel. In response, Meaux denied that it had taken inconsistent positions. Meaux contended that its position in the LHWCA proceeding was irrelevant to the OWCP’s determination that the LHWCA did not apply because there was not a sufficient connection to a maritime situs, and that it has not changed its position here; rather it properly assumed, for purposes of summary judgment, that Salinas's allegations about the course and scope of employment were true. The appellate court rejected Salinas’s argument, holding as a threshold matter that the Salinas had not established that Meaux had taken an inconsistent position for purposes of equitable estoppel. The trial court's judgment was affirmed. (1st Tex. App., May 3, 2012) 2012 Tex. App. LEXIS 3483
LHWCA ADMIN DECISION CREATES COLLATERAL ESTOPPEL FOR COURT
MENG V. DUTRA GROUP
Ashley Meng accepted a Union assignment to work for Dutra Group as a dredge deckhand. Meng allegedly injured his shoulder, either when he was throwing a rope into a scow or in the moments before he threw a rope onto a scow. He reported the injury the next day before his shift started and never returned to work. Meng eventually filed the instant suit alleging claims under both the LHWCA and the Jones Act. Meng also filed an administrative claim under the LHWCA. In the LHWCA administrative proceeding, Meng filed a motion for summary judgment arguing in favor of an order on the issue of coverage under the LHWCA because he is not a seaman entitled to Jones Act coverage. Dutra opposed this motion and filed a cross-motion seeking summary judgment on the basis that Meng was a seaman The ALJ found that issues of material fact existed regarding Meng’s status and denied both motions. Dutra then moved for summary judgment in this case, on the same issue. Meng opposed the motion, arguing that: under the doctrine of collateral estoppel, the ALJ's decision denying summary judgment precluded the court from granting summary judgment on the same issue; and even if there is no preclusion, summary judgment was not appropriate because genuine issue of facts existed regarding whether Meng is a seaman or a harbor worker. The court observed that Meng’s opposition to Dutra’s argument that he is a Jones Act seaman-a claim that Meng himself makes in his complaint, was a contradiction in terms. When pressed on this point during oral argument, Meng’s counsel stated that his client would prefer coverage under the LHWCA, but was unwilling to dismiss the Jones Act claim. Nevertheless, the court pointed out that as Congress did not intend to force injured maritime workers to elect between LHWCA and Jones Act remedies, judicial estoppel did not bar Meng from proceeding with these contradictory positions. The court then turned to Meng’s contention that the doctrine of collateral estoppel prevented re-litigation of this issue as it was previously argued and resolved in the administrative proceeding. Dutra argued that LHWCA administrative decisions are not preclusive of issues in Jones Act cases filed in federal court, relying on Southwest Marine, which found "no indication in the LHWCA that Congress intended to preclude or stay traditional Jones Act suits in the district courts" and Papai, which found that full agency adjudication of plaintiff's LHWCA did not bar a subsequent Jones Act claim in federal court. The court found that cases regarding election between LHWCA and Jones Act remedies were not dispositive of the question of whether the ALJ's denial of Dutra’s summary judgment motion on the issue of Meng’s seaman status in the LHWCA proceeding precluded Dutra’s motion for summary judgment on the same issue in this proceeding. Applying the 9th Circuit’s criteria for claim preclusion, the court found that the agency denial of summary judgment on Meng’s seaman status was preclusive in the tort action. The issue at stake-whether Meng is a Jones Act seaman, is identical to the one raised in the administrative proceeding. A review of the ALJ’s order denying the motion and cross motion for summary judgment revealed that the question of Meng’s Jones Act seaman status was fully litigated and the ALJ had set forth the factual record and exhaustively reviewed the law applicable to the issue. The ALI ultimately reached a final judgment that, because there existed a genuine issue of fact as to whether Meng’s connection to the vessel in navigation was substantial in terms of both duration and nature, summary judgment was not appropriate. The court held that the criteria for the application of collateral estoppel had been satisfied and a second litigation of this issue by the same parties would serve no purpose. Assuming, arguendo, that the ALJ's decision denying summary judgment did not preclude consideration of the same issue, the court denied Dutra’s summary judgment motion because there were genuine issues of material fact regarding plaintiff's seaman status. Taking all the evidence in a light most favorable to Meng, the court found that movements of the vessel, albeit within the harbor, and the sea-based duties of Meng, although ancillary to his core responsibility of dredging work, raised genuine issues of material fact warranting jury consideration. The court denied Dutra’s motion for partial summary judgment. (USDC OR, APRIL 19, 2012) 2012 U.S. Dist. LEXIS 71226
COURT REJECTS PLAINTIFF’S INTENTIONAL TORT ALLEGATIONS
WILSON V. KIRBY CORPORATION
Tyrone Wilson filed suit in state court against Kirby Corporation, seeking to recover damages for personal injuries sustained in the course and scope of his employment. Wilson alleged that while working to repair a barge owned by Kirby, at a facility allegedly owned and operated by T.T. Barge Service, Inc., a T.T. Coatings’ supervisor ordered him to use a pair of pliers to remove a test rod that was stuck in stainless steel shaft, while a co-employee heated the test rods and the steel tube on the other end of the shaft. Wilson alleged that he was hurt when the test rod exploded out of the open end of the steel shaft and struck his hand and wrist. With the consent of T.T. Coatings, Kirby timely removed the suit to federal court based on diversity jurisdiction, asserting that T.T. Coatings, a Louisiana corporation, had been improperly joined. T.T. Coatings filed a motion to dismiss and Wilson moved to remand the suit asserting that because T.T. Coatings was a Louisiana corporation diversity jurisdiction was lacking. T.T. Coatings sought to dismiss the claim against it pursuant to Federal Rule of Evidence 12(b)(6) urging that Wilson had no facially plausible claim for intentional tort against it; the sole claim alleged by Wilson in his complaint against T.T. Coatings. Further, T.T. Coatings urged that Wilson is covered by the LHWCA and that he cannot state a claim of intentional tort because he has alleged insufficient facts against T.T. Coatings and both federal courts and Louisiana courts agree that there must be a substantial certainty that a party will suffer harm to prevail on a claim of intentional tort. Therefore, the court dismissed Wilson’s claim against T.T. Coatings. Given that Wilson had no reasonable possibility of recovery against T. T. Coatings, the Court concluded that Wilson improperly joined T. T. Coatings. As it was undisputed that there was complete diversity between the remaining parties, the court denied Wilson’s motion to remand. (USDC EDLA, May 1, 2012) 2012 U.S. Dist. LEXIS 60544
VESSEL REPAIR DOES NOT SATISFY THE “PUBLIC WORK” TEST
DE LA CRUZ, ET AL. V CADDELL DRY DOCK & REPAIR CO., INC., ET AL.
This was a class action by approximately 750 workers, employed by Caddell Dry Dock & Repair Co., Inc., who sued alleging a willful failure to pay prevailing wages under Labor Law §220, and claiming that they performed work for Caddell under "public works" contracts, and that the work included repair and maintenance work. Caddell had entered into contracts with various municipal corporations of the City of New York, including the Fire Department, the Department of Transportation, and the Department of Sanitation, to perform dry-docking and repairs on various publicly-owned vessels, such as fire boats, garbage barges, and ferries. Caddell filed a motion to dismiss, which the trial court granted. On appeal, a breach of contract count was remanded. However, the court still granted Caddell’s summary judgment motion and denied the workers' partial summary judgment motion. The workers appealed. The appellate court held that Brukhman v. Giuliani controlled. The appellate court concluded that the repair of City vessels that the workers were engaged in was not a public work under §220(3). More than just public purpose or function was required to determine that a project was a public work. The contractual provision regarding the payment of prevailing wages did not apply because the work was not public work. The prevailing wage law was limited to those workers employed in the construction, repair and maintenance work of fixed structures, and did not apply to workers who were servicing a commodity owned by the City. Any view that status as a public work was determined solely by focusing on the work's purpose and function ignored the weight of precedent that clearly established that a finding of public purpose alone was not sufficient for a finding that public work was being performed. Caddell’s summary judgment was affirmed. The denial of the workers' partial summary judgment motion was affirmed. (NY Sup. Ct, 1st, April 12, 2012) 942 N.Y.S.2d 61; 2012 N.Y. App. Div. LEXIS 2632
And on the Admiralty front . . .
RESPONDEAT SUPERIOR IS APPLICABLE IN FELA & JONES ACT ACTIONS
CLUCK V. UNION PACIFIC RAILROAD COMPANY
Eddie Cluck, Larry Clark, and other Union Pacific Railroad Company employees were transported by the railroad in a crew van to a hotel where they were to spend the night in order to board and crew a train next day. Before the trip, Clark packed a loaded pistol with the safety disengaged in his luggage because he planned to sell it to a friend before the trip. However, Clark did not sell the pistol and still had it in his luggage. When the Union Pacific employees arrived at the hotel, Cluck helped unload the crew's luggage, including Clark's luggage containing the pistol. While Cluck was carrying the bag, the pistol accidentally discharged, and the bullet struck Plaintiff's right knee. Cluck filed suit against Union Pacific, alleging that Union Pacific was liable for his injuries under FELA. At the close of evidence at trial, during the jury instruction conference, Cluck sought to submit a verdict-directing instruction under the imputed liability theory. After allowing Cluck numerous opportunities to propose a correct verdict director, the trial court refused each of Cluck’s various proposed verdict directors because the trial judge believed each one misstated the law in that it improperly addressed or wholly ignored- depending on the instruction-the element of respondeat superior. The jury entered a verdict in favor of Union Pacific. Cluck appealed, alleging that the trial court erred in refusing to submit his proposed verdict directing instructions. The appellate court began its analysis by noting that it was undisputed that the incident occurred while the men were within their hours of employment, but each of Cluck’s proposed jury instructions failed to submit the issue of whether the co-employee was carrying the pistol in furtherance of the interests of the employer, in order to support a vicarious liability claim. The appellate court found that, because Cluck’s proposed instructions did not instruct the jury to find whether the injury-causing conduct of the co-employee-the carrying of the pistol in his luggage-was done in furtherance of the interests of the employer's business, Cluck failed to present a submissible case of imputed liability under FELA. While Cluck had a right to submit on his theory of the case, the trial court did not err in refusing his incorrect proposed verdict directors where the employee repeatedly failed to prepare a verdict director that correctly submitted the respondeatsuperior issue. Further, the trial court did not err in failing to create its own verdict director properly submitting respondeat superior in place of the employee's erroneous proposed instructions. Notwithstanding a dissenting opinion from the Chief Justice, the en banc state court of last resort affirmed the judgment of the trial court. (Mo. Sup. Ct., May 1, 2012) 2012 Mo. LEXIS 97
Updater Note: At the heart of this case is the interrelation of the doctrine of respondeat superior and FELA. However, this interrelation is equally applicable to Jones Act cases, which incorporates FELA. Traditional respondeat superior principles require that the injury-causing conduct of an employee be within the course and scope of employment before the employer can be held vicariously liable. Whether an act was committed within the scope and course of employment is not measured by the time or motive of the conduct, but whether it was done by virtue of the employment and in furtherance of the business or interest of the employer.
PALLIATIVE TREATMENT DOES NOT CREATE GENUINE ISSUE OF MATERIAL FACT
ALARIO V. OFFSHORE SERVICE VESSELS, L.L.C., ET AL.
Michelle Alario alleged that she fell and injured herself while she was employed as a cook aboard a vessel owned and operated by Offshore Service Vessels, L.L.C. (OSV). Alario sued for damages on theories of negligence and unseaworthiness and also sought maintenance and cure. The district court granted summary judgment to OSV on all claims [see December 2011 Longshore Update]. Alario appealed the district court's dismissal of her claim for maintenance and cure, arguing that because her doctor said that steroid injections could possibly improve her condition, there remained a genuine issue of material fact with respect to whether she had attained maximum medical improvement. The appellate court began its analysis by noting that the two orthopedists who examined Alario concluded, respectively, that she had reached maximum medical improvement and that she had no continuing abnormalities. Alario did not contest these determinations but simply argued that her doctor’s testimony raised a genuine issue of material fact with respect to her having reached maximum cure. The appellate court found instead that the medical evidence Alario purported to rely on to support her claim all referred specifically to the potential alleviation of pain rather than the curing of an underlying condition. The appellate court concluded that Alario had failed to provide any medical opinion that further treatment would improve her physical condition or do anything but relieve pain and suffering. Since palliative treatment alone is insufficient to demonstrate an entitlement to continued maintenance and cure, the judgment of the district court was affirmed. (5th Cir, May 14, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 9715
MALINGERER’S CUMULATIVE TRAUMA CLAIM FAILS
CROWTHER V. CONSOLIDATED RAIL CORPORATION, ET AL.
Geoffrey Crowther, who held various laboring and supervisory positions over the course of 30 years working for the railroad, filed suit against two railroad defendants, alleging cumulative trauma injuries to the neck, knees, left elbow and thumb, and for accidental injury to the left forearm while driving a spike in 2005. The two railroad defendants moved for summary judgment the district court granted the motion for judgment as a matter of law as to most of Crowther's claims; those remaining were tried to defendants' verdicts. Crowther appealed the final judgment assigning error to granting the defendants judgment as a matter of law, rejecting the neck and knee claims as untimely and the remaining claims insofar as they rested on alleged failures to perform ergonomic analyses of Crowther's activities or provide adequate tools, and to admitting evidence that Crowther was receiving disability benefits under the Railroad Retirement Act. The appellate court affirmed the district court's judgment in favor of the railroads, holding that no fact-finder could reasonably have inferred that Crowther first became aware of a work connection with his knee pain and neck injury within the period of limitation. Although Crowther stressed at length that the cases construing a FELA plaintiff's right to get his case before a jury require not much more than a scintilla of evidence in plaintiff's favor on a disputed point, the appellate court concluded that nothing but sympathy could obscure the apparent untimeliness of Crowther’s claim, and the Rule 50(a) judgment was undoubtedly correct. Similarly, there was no error in entering judgment as a matter of law on negligence claims based on inadequate tools and failure to obtain ergonomic studies of the activities required to perform Crowther’s various jobs. The only evidence that proper tools were lacking related to 2005, the year of the accidental forearm injury. As to that specific injury, the theory was submitted to the jury (and rejected). There simply was no evidence of a persisting failure to provide adequate equipment over time. While the railroad commissioned no ergonomic studies, this claim was rejected, quite properly, for the failure of Crowther's expert, or any other witness, to show how such studies would reasonably have made a difference in the way the railroad treated Crowther. Finally, the appellate court held it was not reversible error to admit collateral source evidence that Crowther was receiving disability benefits under the Railroad Retirement Act. The appellate court found that the evidence at trial demonstrated beyond serious question that the disclosure of collateral benefits did not place Crowther under any disadvantage that the facts did not fully warrant. (1st Cir, May 18, 2012) 2012 U.S. App. LEXIS 10102
Updater Note: Although this is a FELA case, it is highly relevant to Jones Act cases as well, since the Jones Act incorporates FELA by reference. I also found it interesting that the opinion was authored by the Honorable David H. Souter, Associate Justice (Retired) of the Supreme Court of the United States, sitting by designation.
PUNITIVE DAMAGES ARE NOT RECOVERABLE IN UNSEAWORTHINESS ACTIONS
McBRIDE, ET AL. V. ESTIS WELL SERVICE, LLC
An Estis Well Service, LLC crew was attempting to straighten the twisted monkey board in the derrick, when the pipe in the derrick shifted, and the derrick and rig fell over. One crew member died, and three more claim that they were injured. Skye Sonnier died and Haleigh Janee McBride sued Estis in her capacity as the administratrix of Sonnier's estate and on behalf of Sonnier's minor child. Saul Touchet claims that he sustained both physical and psychological injuries. Brian Joseph Suire and Joshua Bourque claim that they sustained psychological injuries because they were present when the incident occurred. All of the plaintiffs sought to recover under the Jones Act for Estis's alleged negligence, and all of them sought to recover under the general maritime law for the alleged unseaworthiness of the vessel, as well as punitive and/or exemplary damages due to Estis's alleged gross, willful, wanton, and/or reckless conduct that allegedly constituted a callous disregard of, or showed indifference to, the safety of the crew members. Estis moved to dismiss the plaintiffs’ cause of action for punitive damages and the cases were consolidated solely on the issue of the availability, or not, of a punitive damages remedy under the Jones Act and/or general maritime law. Estis contended that punitive damages cannot be recovered on the Jones Act claims, because they are not pecuniary damages. Estis further contended that, notwithstanding the decision in Townsend, under the reasoning of Miles the plaintiffs cannot recover punitive damages because their unseaworthiness claims overlap their Jones Act claims. The plaintiffs contended that Townsend left open the question whether punitive damages are available under the Jones Act, however, even if punitive damages are not available for their Jones Act claims, the plaintiffs contended that the Supreme Court's ruling in Exxon Shipping Co. v. Bakersuggested that they should be permitted to recover punitive damages by way of their general maritime law claims. They further contended that the Supreme Court's ruling in Townsend, which abrogated the en bancdecision of Guevara reinstated the holding of In Re Merry Shipping as controlling precedent, permitting the recovery of punitive damages. With respect to recovery of punitive damages under the Jones Act, the court noted the recent decision in Wagner v. Kona Blue Water Farms, LLC, in which the court concluded that the Ninth Circuit's prohibition on punitive damages under the Jones Act set forth in Kopczynski v. The Jacquelinewas consistent with Townsend and remained good law. Noting its agreement with that conclusion, the court pointed out that since Miles, the courts have consistently followed the rule that punitive damages are non-pecuniary in nature and, therefore, they are not recoverable under the Jones Act. The court found that Townsenddid not create a new rule abrogating those cases or the proposition that punitive damages are non-pecuniary and, therefore, not recoverable under the Jones Act. Therefore, the court granted the motion to dismiss as it applied to the plaintiffs' claims for punitive damages under the Jones Act, whether arising out of wrongful death or personal injury. The court next engaged in a thorough review of past precedents, as compared to the opinions of Milesand Townsend, and pointed out the lost in the discussions of Miles, which involved the wrongful death of a Jones Act seaman, was the directed verdict granted by the district court on a factual basis dismissing the plaintiff's punitive damage claim arising out of the unseaworthiness cause of action, which was affirmed on appeal. The court rejected plaintiffs’ argument that Guevara overruled Merry Shipping, finding instead that Miles was the case that effectively overruled Merry Shipping. The court found that nothing in Townsend made punitive damages available to the plaintiffs or abrogates the jurisprudential authority holding that punitive damages are not available for an unseaworthiness cause of action. Therefore, the court held that, to the extent the plaintiffs in these consolidated actions seek to recover punitive damages, they had failed to present a plausible claim for relief. Accordingly, the defendant's motion to dismiss was granted, and the plaintiffs' claims for punitive damages were dismissed. (USDC WDLA, May 16, 2012) 2012 U.S. Dist. LEXIS 69284
YOU’RE LIABLE FOR CAUSING ME TO FALL OUT OF MY BUNK BED - NOT (CONT.)
OLIVER V. WEEKS MARINE, INC.
Patrick Oliver allegedly fell while descending a removable bunk bed ladder aboard a Weeks Marine, Inc. dredge. Oliver was employed by Atlantic Sounding Co., Inc., a wholly owned subsidiary of Weeks. After Oliver deserted the dredge, following his unwitnessed fall and medical finding that he was fit for duty, Atlantic Sounding moved for summary judgment on any maintenance and cure claim Oliver might later assert [see April 2010 Longshore Update]. The court granted Atlantic Sounding’s motion for declaratory judgment, holding that Oliver was not entitled to maintenance and cure related to any alleged injury of the resulting from Oliver’s claimed fall. Oliver later filed this suit, against Weeks, as vessel owner, asserting an unseaworthiness and general maritime negligence action. The case proceeded to a bench trial, where Oliver claimed that the removable bunk bed ladder was unsafe and rendered the vessel unseaworthy, and that Weeks was negligent in failing to provide him with safe sleeping quarters. After hearing all the testimony, including the opinions of two opposing liability experts, the court concluded that Oliver had not carried his burden of proving that Weeks was liable under the general maritime law of negligence or unseaworthiness. Holding that Oliver had failed to establish either negligence or unseaworthiness under the general maritime law, the court granted judgment in Weeks’ favor and dismissed Oliver’s claims with prejudice [see May 2012 Longshore Update]. Oliver timely moved for reconsideration of the court’s judgment in favor of Weeks, arguing that the court erred by failing to find that the vessel was unseaworthy because the bunk bed ladder in question did not comply with the provisions in the United States Army Corps of Engineers Manual pertaining to ladders. The court noted that made these same arguments in his post-trial memoranda, which had been requested by the court before entering judgment. The court disagreed with Oliver’s theory of liability, and found that the provisions were not specific enough to encompass the ladder at issue when viewed in light of the other evidence in the case, particularly the testimony of Weeks’ liability expert regarding the prevalence of this type of bunk bed ladder in the maritime industry and Oliver’s testimony that he used the ladder without problems for 53 days prior to the incident. The court concluded that Oliver had not presented any new facts or changes in the law that warranted reconsideration of its prior decision. The motion for reconsideration was denied. (USDC EDLA, May 16, 2012) 2012 U.S. Dist. LEXIS 68476
BORISON IS IN; DOCTOR GEORGE IS OUT
MCDOWELL V. ATLANTIC SOUNDING CO., INC., ET AL.
Trent McDowell was allegedly injured while working with a pneumatic impact wrench on a Weeks Marine dredge. At the time, McDowell was employed by Weeks’ wholly-owned subsidiary, Atlantic Sounding Company, Inc. McDowell deserted the dredge following his injury, but eventually filed this lawsuit, claiming that his employer was negligence because it required him to raise the thirty-three pound wrench above his head, while standing halfway up a ladder, to reach nuts and bolts that needed attention. McDowell also claimed that the wrench was missing key During the course of litigation, McDowell hired Dr. Gerald S. George and Robert Borison, both of whom prepared reports in which they opined on the cause of the accident and Atlantic and Weeks' responsibility for the accident. Weeks and Atlantic moved in limine to exclude both reports, pursuant to Federal Rule of Evidence 702, because their testimony and reports were not based on scientific, technical, or other specialized knowledge, and would not assist the trier of fact in understanding the evidence or determining a fact in issue. The court began its analysis by noting that McDowell’s case would be tried to the bench, as there had been no jury demand in the case, making the court the trier of fact. With respect to Borison's report, the court found that the opinions offered appeared reliable and relevant. Borison claimed to be an expert in the area of marine and offshore safety, and in the interpretation and application of the relevant regulations and standards. The court observed that neither the safe operation of a pneumatic impact wrench (including which parts of the tool are necessary and which are not), nor the safety issues or industry standards implicated by an operation like that undertaken by McDowell were "common sense" issues with which the court was readily familiar and held that Borison’s opinions would assist the court in its role as trier of fact. With respect to Dr. George's report, however, the court found that the opinions offered were not reliable and relevant. Dr. George claimed to have experience and specialized knowledge in the areas of Human Anatomy, Kinesiology, and Biomechanics, but he did not claim to have experience with or specialized knowledge in the use of industrial wrenches, nor did McDowell argue that he has such experience or knowledge. The court went on to observe that Dr. George's report focused solely on the issue of the safe use of a pneumatic impact wrench and dealt only with relatively common sense issues. The court held that Dr. George’s opinions intruded upon the domain of common sense matters for which the court required no expert assistance and would not assist the court in its role as trier of fact. Weeks’ and Atlantic Sounding’s motion was granted in part and denied in part. (USDC EDLA, May 10, 2012) 2012 U.S. Dist. LEXIS 65463
YOU NEED TO READ CHANDRISIN THE DISJUNCTIVE - PERMANENT OR 30%
BAYHAM V. GROSSE TETE WELL SERVICE, INC., ET AL.
This case arose out of injuries allegedly sustained by Carl A. Bayham, Jr., while he was employed by Gross Tete Well Services as a floor hand, assigned to a truck-mounted workover rig secured to a barge. Bayham claimed that on the date of his alleged injuries, he was advised that the well he was working on was "dead." However, as he was using an acetylene torch to cut bolts on the well, the well head exploded, causing him serious burns and alleged injury to his low back and other parts of his body. Bayham filed suit against his employer, as well as Louisiana Delta Oil Company, the well owner, and B&B Oilfield Services, the site consultants. Grosse Tete filed an answer denying liability and asserting the affirmative defense that Bayham was not a Jones Act seaman and contending his claim is governed by workers' compensation and not the Jones Act. Bayham moved for summary judgment on the issue of seaman status, arguing that he qualifies as a Jones Act seaman and that his attachment of Grosse Tete's workover rig to the barge created a "special purpose craft," which constitutes a vessel. Grosse Tete filed a cross-motion for summary judgment, arguing that the Bayham does not enjoy Jones Act seaman status, asserting that Bayham was not "permanently assigned" to the vessel, because a several day assignment is not akin to a "change in assignment," as contemplated by Chandris and because Bayham did not have the "substantial connection" to a vessel required for Jones Act seaman status. Bayham had been working on the barge for only two days before his injury and spent only nine days in the past year on the barge where the accident occurred, which did not equal 30% of his employment. Furthermore, Grosse Tete argued that it did not own or control the barge. Bayham responded, arguing that the fact that he was working on that particular vessel for two days was fortuitous and is irrelevant because his assignment aboard the vessel was for the duration of the job, which was expected to last for at least twenty-two days. Bayham also maintained that he could show that he spent at least 30% of his employment assigned to vessels "under common ownership or control" of Grosse Tete. The court began its analysis by noting that the facts in the instant suit were nearly identical to the facts in Manuel, and therefore held that Grosse Tete’s rig also qualified as a "vessel." In both cases, a truck-mounted workover rig has been driven onto a barge, attached to that barge, and transported to wellhead worksites. While the court acknowledged that the method of attachment of the rig and the duration of such attachment were different, it nevertheless held that these two facts are not sufficient to change the outcome of the analysis. Therefore, the rig was also a "special purpose craft" that qualified as a Jones Act "vessel." The court further concluded that it need not engage in the 30% analysis because Bayham showed that he was permanently assigned to the vessel at issue as that term had been construed. Although the court acknowledged that Bayham would clearly not be seaman during his landlocked duty, the court was required to make a separate evaluation of his duties once his assignment changed to one on a vessel, separately from any prior assignments. Because it was uncontested that Bayham worked exclusively aboard the vessel at issue once his assignment began, he was "permanently assigned" to that vessel, as contemplated by the Jones Act. The court rejected Grosse Tete’s argument that Bayham had only been on the vessel for two days, because it did not have any support in the jurisprudence. Nowhere in the Chandrisdoes the length of time of an assignment prior to injury, or its apparent impermanence, factor into the analysis. The court granted Bayham’s Motion for Summary Judgment, finding him to be a seaman, and denied Grosse Tete’s motion for Summary Judgment. (USDC EDLA, May 22, 2012) 2012 U.S. Dist. LEXIS 71185
I WAS HIRED BEFORE MY EMPLOYER SAYS I WAS HIRED (CONT.)
PERALTA V. EPIC DIVING & MARINE SERVICES, LLC
Danilo Peralta was employed as a seaman aboard an Epic Diving & Marine Services, LLC vessel, when he allegedly injured his knee. Following his alleged injury, Peralta filed suit, claiming that Epic Diving's negligence and the unseaworthy condition of the vessel caused his injuries, and maintenance and cure benefits from the date of his injury until he reaches maximum medical improvement. Epic Diving asserted a McCorpen defense, arguing that it did not owe Peralta maintenance and cure benefits for his alleged knee injury, pursuant to the McCorpen doctrine, because he fraudulently failed to disclose a prior knee injury on his pre-employment medical questionnaire, for which he underwent surgery. Peralta responded that the questionnaire was actually completed several years after he was hired. Accordingly, Peralta argues, Epic Diving cannot establish that it is entitled to a McCorpendefense and he urged the court to deny the motion for partial summary judgment. The court had previously denied the motion for partial summary judgment without prejudice to Epic Diving's right to re-urge the matter at trial or in an appropriate post-trial motion [see April 2012 Longshore Update]. This court denied Epic Diving's second motion for partial summary judgment because Epic Diving mistakenly submitted a 2010 questionnaire, rather than the 2008 questionnaire, and argued that the 2010 questionnaire was completed pre-employment. In a third motion for partial summary judgment, Epic Diving again argued, pursuant to the McCorpendoctrine, that it does not owe Peralta maintenance and cure benefits for his alleged knee injury because he did not disclose a prior knee injury, for which he underwent surgery, on his pre-employment medical questionnaire. Peralta responded by arguing that, because he was hired on June 9, 2008, and because the medical examination occurred on June 11, 2008, after he was hired, he could not have concealed his medical history in order to obtain employment with Epic Diving, because his medical history was obviously not material to Epic Diving's decision to hire him. Peralta also argued that there is no causal link between his prior injury and the knee injury at issue. The court noted that both parties conceded that Peralta's employment with Epic Diving began three days before the medical examination. The court also noted that Epic Diving had failed to provide the court with any competent summary judgment evidence that Peralta’s employment was conditioned upon successful completion of such medical examination. Consequently, the court declined to resolve this genuine issue of material fact; holding instead that summary judgment would be improper at this time. Nevertheless, the court observed that if Epic Diving could establish at trial by competent evidence that Peralta was hired subject to the condition that he complete a medical examination, then the fact finder must consider the June 11, 2008 medical examination as part of the pre-employment process. Epic Diving’s third motion for partial summary judgment Was again denied without prejudice to Epic Diving's right to re-urge the matter at trial or in an appropriate post-trial motion. (USDC EDLA, May 14, 2012) 2012 U.S. Dist. LEXIS 67608
COURT ORDERS MAINTENANCE RATE INCREASE ON PRELIMINARY INJUNCTION
LOPEZ V. CALUMET RIVER FLEETING, INC.
Paul Lopez worked for Calumet River Fleeting, Inc. as a deck hand on a tugboat. While Lopez was working on the boat, he allegedly injured his left leg and claimed that the injury left him unable to work as a deck hand. Following the reported accident, Calumet paid Lopez maintenance and cure at the rate of $15.00 per day and also voluntarily paid Lopez advance wages, intending to deduct the wages from whatever recovery Lopez earned for his injuries, in the amount of $696 every two weeks. Calumet terminated maintenance and cure and the advance payment it had been voluntarily making, because it learned from Lopez's medical providers that he had reached maximum medical improvement. Lopez eventually filed suit, asserting a claim under the Jones Act and general maritime law claims for failure to provide a seaworthy ship and to enforce his right to receive maintenance and cure from Calumet. Lopez then moved for a preliminary injunction reinstating maintenance and cure and increasing the amount of maintenance. During the briefing stage of the motion, Calumet came to the conclusion that it should reinstate maintenance and cure, and it did so. It did not resume making the voluntary advance wage payments. Even though Calumet reinstated Lopez's maintenance and cure payments, Lopez argued that the court should order Calumet to increase the maintenance payments and pay him attorney's fees and punitive damages for interfering with the maintenance and cure. The court rejected this argument, holding that Lopez’s entitlement to attorney fees or punitive damages was a matter to be addressed at summary judgment or trial, not on a motion for a preliminary injunction. The court denied Lopez's motion to the extent that it sought attorney's fees and punitive damages. The court next addressed the maintenance rate, finding that Lopez's actual expenses were $29.20 per day, almost twice the maintenance Calumet was currently paying. Calumet argued that its fifteen dollar per day maintenance is reasonable because it is the amount provided for in a union contract it intends to sign with its employees soon. However, Calumet conceded that Lopez is not bound by the contract because he was not a member of the union at the time of his injury. The court held that $29.20 is a reasonable daily maintenance rate, finding the union contract was not particularly compelling evidence of the reasonableness of the fifteen dollar rate, because the union may have agreed to a low amount of maintenance that did not reflect reasonable lodging and food costs in exchange for other concessions from Calumet. Accordingly, the court ordered Calumet to increase its maintenance payments to Lopez from fifteen dollars per day to $29.20 per day. (USDC NDIL, May 11, 2012) 2012 U.S. Dist. LEXIS 66371
“WEENIE” WINS LARGE SEAMAN’S PROTECTION ACT PUNITIVE DAMAGE AWARD
POLEK V. GRAND RIVER NAVIGATION
Jeffrey Polek filed a complaint alleging a violation of the Seaman's Protection Act, contending that his former employer, Grand River Navigation, Inc., discharged or otherwise discriminated against him because of his good faith report to the United States Coast Guard of an alleged violation of a marine safety regulation. Following a three-day jury trial, the jury returned a verdict in favor of Polek and awarding him $33,500 in compensatory damages, $1,000 in attorney fees, and $100,000 in punitive damages. Grand River filed a motion for new trial on the issue of punitive damages or, in the alternative, for remittitur of the amount of punitive damages, arguing that the jury's award of punitive damages was against the manifest weight of the evidence and potentially driven by passion and sympathy, and in violation of the Constitution's Due Process Clause. At trial, the jury was instructed that they may assess punitive damages if they found that Grand River’s conduct was malicious, wonton, oppressive or in reckless disregard of Polek’s rights. The jury was also instructed that if they believed that punitive damages were appropriate, the amount of such damages should not be levied because of bias or prejudice. However, Grand River argued that during closing arguments, Polek’s counsel sought to inappropriately inflame the jury's passion for awarding punitive damages by comparing the instant case with the grounding and subsequent loss of life of the Italian cruise ship Costa Concordia and the BP offshore oil spill in the Gulf of Mexico. The underlying event that precipitated the case was Polek’s report of a fracture in the vessel's side shell. Grand River emphasized that the fracture was small and above the waterline. During trial, a witness testified that Coast Guard inspectors were initially unable to locate the fracture from inside the vessel's ballast tank because their flashlights were not powerful enough. Grand River also noted that, after assessing the damage, the vessel was permitted to sail before the fracture was repaired. The Coast Guard did not issue Grand River a citation for failing to report the fracture when it was first identified, and there was also testimony at trial indicating that the fracture had been present for a long period of time because rust had begun to form over the damage on the outside of the vessel. In response, Polek emphasized that Grand River did not lodge an objection or seek any curative instruction from the court during his closing argument. As a result, the degree of prejudice which Grand River must demonstrate in order to obtain a new trial is raised substantially. Additionally, the jury was also presented with testimony and evidence showing that, in response to his legitimate and bonafide safety concerns, Grand River labeled Polek a "potential liability to the company," characterized his concerns as the "non-sensical ravings of a junior engineer," and for good measure, branded him a "weenie." After hearing numerous argument from both sides, the court began its analysis by focusing on the jury's punitive damage award being a means to deter others from engaging in similar conduct and being particularly significant in the context of a retaliatory discharge claim involving public safety where, as here, an adverse outcome of the case may have a chilling effect on the willingness of other seamen to report a violation. While the ratio of punitive harm to actual harm was close to 3:1, that court concluded that it was still within the bounds that satisfy the due process standard outlined in the case law advanced by Grand River. Although Polek was fortunate to secure new employment within three months, that did not negate the fact that Polek faced locating a job with a termination on his record as a new maritime engineer during a recession and could reasonably be found to be financially vulnerable. Finally, the court agreed that the jury could reasonably have concluded that Grand River’s conduct met the requisite degree of reprehensibility evidenced by the course of events leading to Polek’s departure for reporting the damage to the hull to the Coast Guard. Grand River’s motion for new trial or remittitur on the punitive damages award was denied. (USDC EDMI, May 25, 2012) 2012 U.S. Dist. LEXIS 72989
COURT FINDS CASE WAS IMPROVIDENTLY REMOVED TO FEDERAL COURT
CONNELLY V. TRICO MARINE OPERATORS, INC., ET AL.
David Connelly was employed as a seaman aboard a vessel, owned and operated by Trico Marine Operators, Inc., when he was allegedly injured during the course of performing his job duties. Connelly filed suit, in state court, claiming his injuries were as a result of the negligence of the Trico and/or the unseaworthiness of the vessel. Connelly sought damages for his alleged injuries as well as maintenance and cure benefits, attorney's fees, and punitive damages for Trico’s alleged failure to timely pay maintenance and cure benefits. Another defendant in the case, Schlumberger Technology Corp., removed Connelly’s suit to federal court, on the grounds that the action exceeded the minimum amount in controversy required and that the action involved completely diverse parties: Connelly, a Louisiana domiciliary; Schlumberger, a Texas corporation; Trico Marine Operators, Inc., a Texas corporation; and Trico Marine Assets, Inc., a Texas corporation. Schlumberger cited the Fifth Circuit's long standing doctrine that Jones Act cases may be removed when claims are fraudulently joined to preclude removal, arguing that Connelly’s Jones Act case may be removed because Connelly falsely alleged that he was a Jones Act seaman as to Schlumberger and that he was thus entitled to bring the instant suit in state court pursuant to the Savings to Suitors Clause. Connelly moved the court to remand, asserting that his case has been improvidently removed under the provisions of 28 U.S.C. §1445(a), which prohibits the removal of Jones Act claims. Connelly further argued that the court did not have jurisdiction based on diversity, as there is not complete diversity of citizenship between the parties.
The court began its analysis by noting that, in order to prevail, Schlumberger must prove that Connelly’s allegations were fraudulently made and that, as a matter of law, there is no reasonable basis for predicting that Connelly might establish a cause of action. Schlumberger attempted to demonstrate fraudulent joinder by recounting discussions among counsel in which Connelly’s counsel allegedly agreed to amend his petition to remove allegations under the Jones Act and for unseaworthiness against Schlumberger. While Schlumberger contended that it had evidence of Connelly’s intent to manipulate his pleadings in a dire effort to try to defeat removal of these proceedings, the court was not persuaded that Connelly’s purpose in naming Schlumberger was an attempt to prevent removal. However, the court observed that Connelly later amended the pleadings to reflect that Trico was, in fact, his Jones Act employer; however, Connelly maintained that he has potential claims against Schlumberger for unseaworthiness under general maritime law, and that these claims are linked to and dependent upon his claims against Trico under the Jones Act. As only "separate and independent claims" arising under 28 U.S.C. §1331 and joined with otherwise non-removable claims may be removed under 28 U.S.C. §1441, Connelly argued that Schlumberger did not have the ability to effect removal of the instant claims brought against it. The court agreed, finding that the case was improperly removed to federal court. The court concluded that Schlumberger failed to meet their heavy burden. Connelly’s motion to remand was granted. (USDC EDLA, May 24, 2012) 2012 U.S. Dist. LEXIS 72549
WORK ON DOCKED BARGE IS NOT EXPOSURE TO THE PERILS OF THE SEA
CLARK V. AMERICAN MARINE & SALVAGE, LLC
This case arose from a pair of incidents during which William Clark allegedly sustained injuries while he was employed by American Marine & Salvage, LLC (AMS) AMS. Clark allegedly sustained injuries while being lift out of the water following a dive and again, approximately two months later, when pushing a heavy piling into the ground. After Clark filed his Jones Act and general maritime cause of action, AMS moved for summary judgment, arguing that Clark was not an AMS employee when he was allegedly injured, arguing instead that he was an independent contractor. AMS also denies responsibility for Clark’s second alleged injury because AMS had leased the AMS barge to a third-party, Hepaco, just prior and Hepaco had assumed operation, management and control of the job site. Clark contested AMS’s characterization of the facts, arguing that he was an employee who worked for AMS during his entire tenure, including when he sustained his second alleged injury. At this summary judgment stage, the court assumed the facts in the light most favorable to the non-movant, and therefore, proceeded on the basis that Clark was an AMS employee during the five-month term of his employment. AMS also asserted that, because Clark lacked status as a seaman while affiliated with AMS, he lacks standing to bring his claims of negligence under the Jones Act or under general maritime law for unseaworthiness or for maintenance and cure and that the court therefore lacked subject matter jurisdiction over Clark’s claims. AMS provides commercial diving, welding, and repair services to the marine industry. At AMS, Clark's job duties included assisting with company billing and performing commercial dive operations and other related maritime activities. During his approximately five-months at AMS, the parties agreed that Clark worked a total of 768.5 hours, 34.5 hours of which were spent repairing a dock, and 35.5 hours of which were spent performing commercial dive work. For purposes of summary judgment, AMS conceded that the 70 hours of dock and dive work were "seaman" hours under Chandris. Clark argued that the 159 hours he spent working on an AMS work barge while it was docked also qualified as Jones Act work, which AMS vigorously denied. Based on Stewart and its progeny, there was no reasonable dispute regarding the vessel-status of the AMS barge. Though the AMS barge was intermittently repaired, the total disruption was not significant enough to render the vessel out of navigation. Examining Clark's overall work duties, the court found that his efforts contributed to both the function and the accomplishment of the mission of the AMS vessels - the barge and dive boat. However, the court concluded that Clark failed to meet the second prong of Chandris, which requires that a seaman have a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both duration and its nature. It was undisputed that Clark's barge repair work was not of a seagoing nature, and the court thus held that Clark had failed to demonstrate that his employment regularly exposed him to the perils of the sea. The record established that the preponderance of Clark’s work for AMS was not of a seafaring nature. As an alternative theory of relief, Clark argued that, as a commercial diver, the court should consider him to be a seaman as a matter of law. The court rejected this argument, finding that Clark's commercial diving work only constituted approximately 4.5% of his time working for AMS and commercial divers have never been excepted from the Chandrisdurational requirement, and the court declined to extend such an exception. The court granted AMS’s summary judgment motion, concluding that there was no genuine dispute as to any material fact, and that Clark is not a seaman under the Jones Act. (USDC SDAL, May 1, 2012) 2012 U.S. Dist. LEXIS 60681
YOU’VE GOT THE WRONG PARTY HERE MR. SEAMAN
PONT V. ANNIE MAE WILLIAMS, ET AL.
Ronald Pont was employed as a seaman aboard a commercial fishing vessel, when he claims to have been injured when the captain of the vessel, John Hague, began swinging a steel chain and struck Pont in the jaw. Pont alleged in his Complaint that he was employed by the vessel owner, Annie Mae Williams and named Williams and the vessel in rem as defendants. Williams moved to dismiss the Complaint, accompanied by evidence that she was not Pont’s employer, and that rather her late husband, Mayhew Williams, Jr., employed the Pont. Moreover, the decedent, and not Williams, was the owner of the vessel at the time of the accident. Williams argued that, having never been Pont’s employer or the owner of the boat at the time the alleged injury occurred, Pont had failed to state a claim against her for which relief may be granted. Further, the Williams asserted that her husband passed away in 2009, and that his estate was probated in North Carolina and closed on March 31, 2011. Pont never asserted a claim against the estate and Williams argued the court lacked subject matter jurisdiction to hear the case. Pont readily admitted these facts, but claimed that he never sought to bring a claim against Williams in her personal capacity, but as the former executrix of her husband's now-closed estate in North Carolina, as a beneficiary of that estate, and as the current owner of the vessel. However, the court found that Pont had not sued Williams in any representative capacity, and had not asserted any legal basis for holding her personally liable. The fact that Pont’s former employer is deceased and his estate is closed does not mean that any legal claims Pont had against him may now be maintained against his widow in her personal capacity. Pont’s claim that Williams may be held personally liable as the current owner of the vessel was held similarly unfounded. Because Pont’s claims may only lie against his employer or the owner of the boat at the time of his injury, the court held that he had failed to state a claim against Williams. The court further found that it lacked subject matter jurisdiction to hear the in rem claim against the vessel itself. The case was dismissed with prejudice. (USDC NJ, May 17, 2012) 2012 U.S. Dist. LEXIS 68969
EVEN A WARD OF THE COURT CAN’T SIT ON RIGHTS FOR THIRTY-SEVEN YEARS
WARNER V. SUN SHIP, LLC, ET AL.
Between September 1972 and February 1974, Thomas Warner worked as a seaman for Sun Transport, Inc., a predecessor company of Sun Ship, LLC. Warner voluntarily left employment with Sun Transport in February 1974. More than two decades after leaving Sun Transport's employ, Warner sent a letter to the human resources department of Sun Transport, requesting the vacation wages he claimed he accrued between September 1972 and February 1974. In response, a representative of Sunoco notified Warner that it had no record of Warner’s employment with Sun Transport and requested documentation verifying his employment. Six-and-a-half years passed before Warner again contacted Sunoco, but he received no response to that letter. Another five years passed before Warner again contacted Sunoco, when he was informed that his records no longer existed. Warner procrastinated until 2011, when he brought this action pro se, alleging that, at the time of his departure, he had accrued vacation wages at a rate of $500 per month for each of the 18 months he was employed with Sun Transport. Upon leaving Sun Transport's employ, Warner did not make a request for vacation wages, but Warner now alleges he was nevertheless entitled to them under 46 U.S.C. § 10313, seeking $30,000 in inflation-adjusted vacation wages along with any interest or penalties which may be applicable. Defendants filed a motion to dismiss, arguing that Warner’s complaint is barred as a matter of law by the equitable doctrine of laches. While acknowledging that the Merchant Seamen Protection and Relief Act does not establish a statute of limitations for individual claims for unpaid wages, the defendants argued that Warner’s claim is barred by the equitable doctrine of laches which has been applied in other circuits to claims of unpaid wages under the Act. The court noted that, in cases such as this one, where the statute does not contain a limitations period, the court begins its analysis by looking to the most analogous state statute of limitations to determine whether the presumption of laches attaches. The defendants asserted that the most analogous state statute of limitations is the 3-year limitations period under the Pennsylvania Wage Payment and Collection Law. The court agreed, noting that Warner’s wage claim was filed 37 years after the day on which the alleged wages were due, far outside the analogous 3-year limitations period. The court therefore held that the presumption of laches applied and the burden shifted to Warner to show both that the delay was excusable and that defendants have not been prejudiced by the delay. The court found that Warner had failed to offer any explanation that excused his 37-year delay in filing suit. Even if Warner could show that his delay was excusable, the court also found that defendants established that they had been prejudiced by the decades-long delay. The court held that Warner’s claims were barred by the doctrine of laches and dismissed Warner’s claim with prejudice. (USDC EDPA, April 30, 2012) 2012 U.S. Dist. LEXIS 60805
I’M TOO DISABLED TO TRAVEL THAT DISTANCE
IN RE BORDELON MARINE, INC.
This limitation action was filed by Bordelon Marine, Inc., pursuant to the Shipowners' Limitation of Liability Act, as the owner of a vessel that Ernest Bosarge was allegedly injured on. Bosarge was a captain aboard the vessel and an employee of Bordelon. On an occasion when the vessel encountered rough seas, the violent movement of the vessel supposedly caused Bosarge to fall out of his bunk bed and injure his neck and/or back. In his answer to the limitation action, Bosarge alleged that he suffered serious and disabling injuries and testified that he is unable to have sexual relations with his wife due to the injuries he sustained. Bosarge further contended that Bordelon has unlawfully denied him maintenance and cure benefits. Bordelon responded, claiming in its limitation action that Bosarge's alleged injuries were pre-existing, and that he misrepresented his pre-existing health condition to Bordelon. Thus, he is not entitled to maintenance and cure benefits. Bordelon also alleges that it is not liable for Bosarge's, or any other claimant's injuries, and that the Court should enjoin further prosecution of any claims against it. Bordelon then sought an order from the court requiring Bosarge to appear for an independent medical examination with its urologist and a vocational rehabilitation evaluation (VRE) with its vocational rehabilitation expert. Bordelon contended that the only real dispute is whether Bosarge should be required to travel to New Orleans for the examinations. Bosarge conceded that an IME and an VRE are warranted, and that the only real dispute is the location of the examinations. In opposition, Bosarge argues that good cause does not exist to require him to travel 214 miles for the examinations. Bosarge further contends that it was Bordelon that chose the forum, not him, thus he should not be required to travel to New Orleans for the examinations. In support of its motion, Bordelon argued that it had offered to reduce any inconvenience to Bosarge by scheduling both examinations on the same day, paying for his mileage, and putting him up in a hotel room the night before the examination. Bordelon argues that it is entitled to use the urologist and vocational rehabilitation expert of its choosing. In opposition, Bosarge argued that, given his physical condition, he should not be forced to travel four (4) hours each way for an IME and a VRE in New Orleans. Counsel for Bosarge further argued that Bordelon has failed to established that there are no qualified urologists or vocational rehabilitation experts in the area where Bosarge resides. After considering the parties' arguments, the court concluded that the IME and VRE should be conducted at a location closer to Bosarge. Thus, the court denied Bordelon's request that Bosarge be required to appear for both examinations in New Orleans. (USDC EDLA, May 25, 2012) 2012 U.S. Dist. LEXIS 72943
LIMITATION OF LIABILITY DENIED, AS VESSEL WAS UNSEAWORTHY
IN RE: J.R. NICHOLLS, LLC, ET AL.
This case involved a limitation of liability action brought by J.R. Nicholls, Inc., and KM Ship Channel Services LLC (collectively "petitioners"), as owner and operator, respectively, of a push boat, which sank in the Houston Ship Channel. The post-casualty value of the vessel was $25,000. After a non-jury trial on the merits, the court began its analysis by noting a history of the Captain of the push boat reporting several issues with the vessel in the months preceding the casualty, including fore and aft void spaces filling with water, and a noticeable list to the vessel when it was being operated light boat or in turns. There was water noted in the aft void space on the day of the casualty, and crewmen pumped water out of the void space earlier that day. In the four weeks preceding the sinking, the vessel had been in shipyards twice for repair. At the time of the sinking, the frame on the starboard engine room watertight door was inoperable without the use of a "cheater bar" due to a bent frame that existed for at least several months prior to the casualty. Petitioners' shore side personnel were aware of the problems with the water tight doors, and the practice of pinning them open while operating in the Houston Ship Channel. Petitioners scheduled repairs to the watertight doors on the push boat one month prior to the accident, but then cancelled those repairs before they could be made. At the time of the incident, the push boat was unstable due to a combination of excessive free surface effect and improper operation. The court found that the rapidity with which the push boat capsized was evidence that its stability was severely compromised at the time of the casualty. The court found that, at the time of the incident the push boat was not reasonably fit for its intended purpose due to a combination of severely impaired stability and the watertight doors being pinned open while operating. Instead, the push boat was unseaworthy at the time of the incident, and the causes and reasons for it being unseaworthy were known to petitioners' shore side personnel. The court held that petitioners had failed in their burden of proving that they lacked privity or knowledge of the unseaworthy condition, and were not entitled to limitation of liability under the Act. The court concluded that petitioners were not entitled to limit their liability under the Limitation of Liability Act, finding in favor of claimants and against petitioners on the issue of limitation of liability. (USDC SDTX, May 17, 2012) 2012 U.S. Dist. LEXIS 68910
HE’S AN INDEPENDENT CONTRACTOR, NOT OUR EMPLOYEE
JOHNSON V. PPI TECHNOLOGY SERVICES, L.P., ET AL.
This case arises out of an incident aboard a drilling rig operating off the coast of Nigeria. James Johnson was employed as a drilling supervisor aboard the rig, when Nigerian gunmen boarded the rig to rob and/or take hostage its occupants. In the melee, one of the gunmen shot Johnson in the leg with an AK-47 rifle, causing injuries that required multiple surgeries, a muscle transplant, months of hospitalization, and continuing therapy. Johnson later sued, alleging that the defendants were negligent, that the vessel was unseaworthy, and that PPI Technology Services, L.P. is responsible for providing him maintenance and cure benefits based upon general maritime law. PPI moved for dismissal under FRCP 12(b)(6), contending that it neither employed Johnson at the time of the incident, nor owed him any duty of care with respect to operations aboard the rig or, in the alternative, to dismiss on the grounds of forum non conveniens, arguing that a Nigerian court is the more appropriate forum for this litigation. PPI contended, instead, that Johnson was an independent contractor of PSL, a Belizean entity with which PPI had contracted. As evidence, PPI offered the court a contract between Johnson and PSL in which the parties agreed and acknowledged that Johnson is not an employee of PSL for any purpose whatsoever, but shall be considered at all times an independent contractor. Johnson argued that PSL is a shell corporation of PPI's creation, and that notwithstanding the contract with PSL, he was actually a PPI employee when the Nigerian gunmen injured him. Addressing the forum non conveniens issue first, the court found that Nigeria was an adequate forum, but found that PPI had failed to demonstrate that an alternative forum in Nigeria was available to resolve the dispute. Instead, PPI had not stipulated to jurisdiction in Nigeria, made itself available for service of process there, and had indicated its refusalto submit to the jurisdiction of a Nigerian court. Therefore, the court found that PPI failed to meet its burden. Because a foreign forum must be both adequate and available for a court to dismiss for forum non conveniens, the court denied PPI's motion to dismiss. The court began its employer/employee analysis by noting that at the core of Johnson’s allegations is the contention that PPI was his direct employer which hired, supervised, and fired him. PPI contends that because it neither employed Johnson at the time of the incident, nor owed him any duty of care with respect to operations aboard the rig, Johnson does not have any valid legal claims against PPI. Indeed, an employer-employee relationship is essential for recovery under the Jones Act. The court rejected PPI’s argument, finding the contract was not determinative of Johnson’s status, because the Supreme Court has held that such words as employer, agent, and independent contractor are not decisive in determining who is a Jones Act employer. Johnson submitted an affidavit detailing his extensive involvement with PPI personnel during the hiring process, during his employment aboard the rig, and following his injury. Much of the information in Johnson's affidavit was corroborated by supporting evidence, and the court observed that PPI had done nothing to rebut or explain Johnson's contentions. The court concluded there was sufficient evidence that PPI personnel directed and supervised Johnson, hired and fired him, and led him to believe that he was indeed a PPI employee (notwithstanding his contract with PSL). The court found myriad factual issues concerning Johnson's relationship with PPI that made summary judgment on the record unwarranted. PPI’s motion to dismiss was denied. (USDC EDLA, May 22, 2012) 2012 U.S. Dist. LEXIS 71191
INDEMNIFICATION, INDEMNIFICATION - WHO OWES ME INDEMNIFICATION
MAGEE V. ENSCO OFFSHORE COMPANY
Kendall K. Magee, an Ensco Offshore Company employee, was allegedly injured during a slip and fall, while he was back loading a vessel owned and operated by Tobias, Inc. Pertinent to the work being performed at the time of Magee's alleged slip and fall, Ensco was operating a jack-up rig, which it owned, under a Master Drilling Contract (MDC) that it had with Chevron. Tobias was operating a work/supply vessel under a master time charter with Chevron. While back loading the supply vessel from the jack-up rig, Magee was allegedly injured and filed a complaint pursuant to the Jones Act and general maritime law. Tobias tendered its defense to Ensco, seeking indemnity and defense. When Tobias received no confirmation that Ensco would undertake Tobias's defense, Tobias filed a cross claim against Ensco and a third party demand against Ensco's unidentified insurer and moved for summary judgment. Ensco cross-motioned for summary judgment. Tobias argued that the MDC obligates Ensco, as Chevron's contractor, to indemnify and defend Tobias, as another contractor of Chevron. The MDC, which was signed by Chevron as "Company" and Ensco as "Contractor," contained a Schedule G, "Agreement for Mutual Indemnity and Waiver of Recourse," which provided for reciprocal indemnity agreements among parties who qualify as "Signatories" under the MDC. Ensco argued it does not owe indemnity to Tobias under the MDC, because Tobias is not a part of the "Company Group" to whom Ensco owes an indemnity obligation because the fact that Tobias's vessel was operating under a time charter invokes an exclusionary clause with respect to the "Company Group" definition. Second, Schedule G, which permits entities not parties to the MDC to become "Signatories" to whom Ensco may owe an indemnity obligation, excludes indemnification with respect to "transportation services," in which Magee was involved at the time of his alleged injury. Finally, Ensco argued that Tobias cannot invoke the benefit of indemnity under Schedule G because it is not a "Signatory." Tobias responded that it need not fit within the "Company Group" definition because Schedule G overrides that provision. It also argued that even if it needs to invoke that definition, the time charter exclusion only applies to vessels, rather than to Tobias, who is a vessel owner. After a thorough review of the agreements in question, the court concluded that, even though Ensco is also the party in immediate contractual privity with Chevron under the MDC, Ensco was also a "Signatory" to Schedule G. Because Ensco is a Signatory, it generally did not owe indemnity to Tobias pursuant to Schedule G under the facts of the case due to the transportation services exclusion. The court went on to hold that for an agreement to be substantially similar to Schedule G, it must essentially duplicate what Schedule G attempts to accomplish. Schedule G attempts to accomplish an indemnity scheme among contractors of Chevron, with respect to Chevron's operations in the Gulf of Mexico. Because the charter is a contract between Chevron and Tobias rather than between Tobias and another contractor of Chevron, it is not an attempt to achieve Schedule G's mutual indemnity scheme and thus is not substantially similar to Schedule G. Because the charter and Schedule G were not substantially similar, and because Tobias has introduced no evidence that it executed a Schedule G, the court held that Tobias was not a Signatory. Because Tobias is not a Signatory, it may not obtain the benefit of indemnity under Schedule G. As Tobias was not a Signatory entitled to indemnity the court denied Tobias’s motion for summary judgment and granted summary judgment in favor of Ensco. (USDC EDLA, May 18, 2012) 2012 U.S. Dist. LEXIS 69836
YOU MAY HAVE SIMILAR NAMES, BUT YOU ARE NOT THE PROPER PARTY
IN RE: ODEBRECHT-JOHNSON BROS. JOINT VENTURE
Following an alleged injury claimed by Anthony Dorsey, Odebrecht-Johnson Bros. Joint Venture (OJJV) filed a limitation of liability action. Dorsey’s was the only know claimed filed in response to OJJV’s notice of its limitation action. Dorsey allegedly injured his back when he attempted to move from an OJJV chartered vessel to another vessel because of a height differential between the two vessels. Dorsey filed suit in state court, seeking damages for his injury, prior to OJJV’s limitation of liability complaint. Dorsey moved the court to dismiss OJJV’s limitation of liability complaint on the grounds that the OJJV is not the actual owner or charterer of the vessel involved in his alleged accident or, in the alternative, that the limitation of liability complaint was filed outside the applicable six month statute of limitations. Dorsey argued that the charter party of the offending vessel, which agreement was made between Mobro Marine, Inc. and Odebrecht-Johnson Bros., JV, is distinct from OJJV and that the wrong entity had brought the limitation of liability action. Dorsey supported his argument with documents from the Florida and Louisiana Secretaries of State to support his argument that Odebrecht-Johnson Bros. Joint Venture is distinct from OJJV. The court agreed, noting that the documents showed that the two entities had different charter numbers, different registration dates, different mailing addresses, different report filings, different registered agents, and one entity has a listed officer, while the other did not. The court held that the submitted documents demonstrate that the two entities are not the same, and since the charter party was signed by Odebrecht-Johnson Bros., JV and not OJJV, granted Dorsey's motion to dismiss the limitation of liability complaint. (USDC EDLA, May 2, 2012) 2012 U.S. Dist. LEXIS 61325
IT’S AL CHINESE TO ME
YU V. DALIAN INTERNATIONAL MARITIME SERVICES CO., LTD., ET AL.
Changxing Yu, a citizen of the People's Republic of China, filed suit in Louisiana state court seeking damages under the Jones Act, and, in the alternative, under Chinese law for injuries allegedly sustained aboard defendants' vessel. Defendants removed the suit to federal court, asserting a right to removal as an agency or instrumentality of a foreign state, the People's Republic of China, and, alternatively, based upon 9 U.S.C. §205, asserting a right to removal based upon the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Yu filed a motion for remand on the basis that Jones Acts suits are non-removable. The defendants argued that Yu cannot establish Jones Act liability because United States law does not apply to the controversy. The court applied the Lauritzen-Rhoditis factors to the facts of the case in order to determine whether federal maritime law or foreign law should govern. Given that three relevant factors, including one of "cardinal importance," favored the application of Chinese law, and that all presented evidence regarding the final relevant factor supported the application of Chinese law, the court concluded that there was no reasonable basis for the application of United States law, including the Jones Act. The court also found that defendants had presented a prima facie case that Tianjin COSBULK, a foreign corporation, is an instrumentality of a foreign state, supported by the information in the record and not refuted by the evidence or allegations of Yu, thus, removal to the federal arena was appropriate under 28 U.S.C. §1441(d). In support of their assertion of a right to removal based upon an arbitration clause in the contract, Defendants submitted the contract, untranslated from Chinese, asserting that the contract contained an arbitration agreement. Yu argued the contrary in his reply and provided a translation of a portion of the contract supported by a sworn statement. The court found that defendants had failed to establish that an arbitration clause could affect the outcome of the case. Although defendants did not establish the existence of an arbitration clause as a basis for removal, the court found that they did establish a prima facie case that 28 U.S.C. §1441(d) was a basis for removal. Accordingly, Yu’s motion to remand was denied. (USDC EDLA, May 29, 2012) 2012 U.S. Dist. LEXIS 73672
Quotes of the Month . . .“It is the mark of an educated mind to be able to entertain a thought without accepting it.”-- Aristotle
“The young man knows the rules, but the old man knows the exceptions.”--Oliver Wendell Holmes Jr.
“A life spent making mistakes is not only more honorable but more useful than a life spent in doing nothing.” --George Bernard Shaw
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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