Article 23

February 2011

Notes From Your Updater - Great News About a Valuable Longshore Act Resource - John Chamberlain has returned to his home in Connecticut after retiring from the Department of Labor. He intends to continue studying and writing about the Longshore Act and its extensions, its history and its future. He is available as a consultant, researcher, teacher and mediator. John may be reached at john.chamberlain@johnchamberlainconsulting.com . His postal address is PO Box 987, Woodbury CT 06798-0987. He is currently developing his web site, www.johnchamberlainconsulting.com

The Petition for a Writ of Certiorari filed with the U.S. Supreme Court in the case of Harrington v. Atlantic Sounding Co., Inc., et al., Docket No. 10-747 [see May 2010 Longshore Update] was denied on January 24, 2011. The question plaintiff sought to present to the Court was: Does the Jones Act permit an arbitration clause to restrict a plaintiff’s right to choose the forum in which his case will be heard?

Save the Dates: Signal Maritime Conference 2011; Longshore Practice in the 21st Century:”Striving and Thriving in Challenging Economic Times Through Prevention, Protection and Preservation.” Always one of the best nuts and bolts Longshore seminars, this year Signal will offer two thorough days of thought-provoking sessions at the Hyatt Regency Jacksonville Riverfront, Jacksonville, FL from May 23-25th, 2011. For more information please contact jennifer.pappas@signal-ctc.com.


ANDREPONT MAINTAINS ITS VITALITY
CRAVEN V. DIRECTOR, OWCP [NORTHROP GRUMMAN SHIP SYSTEMS INC.]

Circuit Court Opinion
BRB Decision
ALJ Decision

This is the second time his case has been at the 5th Circuit Court of Appeals, albeit on a new issue [see May 2010 Longshore Update]. Kenneth E. Craven allegedly injured his back while acting in the course and scope of his employment for Northrop Grumman. Northrop paid TTD benefits until Craven had attained permanency, at which point it concluded that Craven was able to secure suitable alternative employment and reduced Craven’s benefits to PPD. Craven disputed this reduction in benefits and, through counsel, requested an informal conference before the District Director. Following the conference, the claims examiner issued a Memorandum of Informal Conference advising the parties that she could not issue a recommendation because she lacked the necessary wage and medical information. However, the parties did not timely receive the Memorandum, most likely due to the immediate intervention of Hurricane Katrina. After Craven requested a second informal conference, which the District Director refused to grant, Craven requested a formal hearing and the case was referred to the OALJ. Craven received a favorable ruling from the ALJ, even though most issues had been resolved prior to the formal hearing. Craven then filed a petition for attorney’s fees pursuant to §928, which Northrop objected to. The ALJ awarded attorney fees, notwithstanding the absence of a written recommendation from the District Director, by determining that he could award attorney’s fees on equitable grounds. Northrop’s motion for reconsideration was denied and Northrop appealed. The Board reversed the ALJ’s award of attorney’s fees, holding that § 928(b) “contains no equitable exclusion which would nullify the three statutorily enumerated criteria for fee liability to be assessed under that section.”Craven timely appealed the Board’s reversal of the ALJ’s order granting employer-paid attorney’s fees. The appellate court affirmed, holding that because the statute expressly requires a written recommendation, which Craven failed to obtain, Craven cannot recover from Northrop. The appellate court also rejected the ALJ’s equitable exception standard as erroneous and inconsistent with its prior holding in Andrepont. Although the ALJ found that Northrop “refus[ed] to cooperate . . . with the request for earnings records,” the court held that the ALJ’s finding was not supported by substantial evidence. The only evidence in the record supporting a finding of bad faith was the mere fact of Northrop’s failure to respond to the Memorandum of Informal Conference. However, Northrop’s uncontested claim was that it could not have timely responded to the Memorandum because it did not receive the Memorandum, as a result of the chaos following Hurricane Katrina. Assuming arguendo that an equitable exception exists to §928(b)’s requirements, the court concluded it was not available in this case. Because the lack of a recommendation was fatal to all of Craven’s issues, the court declined to address whether Craven could recover attorney’s fees for those claims for which Craven received a favorable stipulation. The court determined that the remainder of Craven’s argument had been waived for failure to raise them before the BRB. The appellate court affirmed the decision of the Board denying employer-paid attorney’s fees to Craven. (5th Cir, January 13, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 733

COMMERCIAL DIVER HELD TO BE COVERED UNDER THE LHWCA
AMERICAN MARINE CORPORATION V. DIRECTOR, OWCP, ET AL. [BOWES]

Circuit Court Opinion
BRB Decision
ALJ Decision

Matthew Bowes worked for American Marine Corporation as a diver. Claimant’s duties for American also included the non-diving activities of loading and unloading barges, pier and shop cleanup, welding and construction work, and equipment maintenance. Bowes allegedly injured his knee and back, while performing buoy maintenance from Chevron’s off-shore mooring facility. American provided medical benefits and maintenance payments under the Jones Act. However, Bowes eventually sought compensation under the LHWCA for temporary total disability and medical benefits for his knee and back conditions. American disputed jurisdiction under the LHWCA and requested a formal hearing. The ALJ found that Bowes’ injury occurred on navigable waters and thus fells within the coverage requirements of the Act. The ALJ also held that Bowes was not excluded from coverage as a member of a crew, finding that Bowes’ only substantial connection to American’s vessels were his duties related to diving and time expended as a passenger traveling to and from the offshore work sites, and that only 21.3 to 23.6 percent of Bowes’ time was devoted to these activities. Finding the Bowes spent less than 30 percent of his time in the service of American’s vessels, the ALJ awarded ongoing compensation for temporary total disability and medical benefits. On appeal, the BRB found that the ALJ’s conclusion that Bowes spent less than 30 percent of his time in the actual service of a vessel in navigation was rational, supported by substantial evidence, and in accordance with law, affirming the ALJ. American took further appeal, arguing that Bowes, as a commercial diver, is a member of a crew of a vessel not covered by the LHWCA. The appellate court began by pointing to the Chandris "rule of thumb for the ordinary case: A worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify" as a member of a vessel's crew for purposes of the LHWCA. The appellate court went on to observe that no reason had been advanced why the Chandris rule of thumb should not be applied in this case. Consequently, the court concluded that the determination of what duties should be counted as "in the service of a vessel in navigation" for purposes of applying the 30 percent rule of thumb is a factual question for the ALJ. The appellate court affirmed the ALJ's findings as supported by substantial evidence. American’s petition for review was denied. (9th Cir, December 20, 2010, UNPUBLISHED) 2010 U.S. App. LEXIS 26803

LONGSHOREMAN IS UNABLE TO PROVE THAT SHIP OWNED DEFECTIVE LADDER
JACKSON V. GEARBULK, INC., ET AL.

Laroi Jackson worked as a longshoreman for James J. Flanagan Stevedores. During a cargo discharge operation from a general cargo ship, operated by Gearbulk Inc., Jackson and his fellow longshoremen were instructed to clean the floor of Hold 2. To enter Hold 2, Jackson used the vessel's fixed vertical access ladder at the forward end of the hold. The ladder reached only the top level of the tiered hardwood bundles, which resembled large four-foot stairs descending to the hold's steel floor. The final step required the plaintiff to climb down two vertically stacked bundles, an eight-foot descent. To reach the floor from this height, Jackson used a portable, aluminum ladder, which was already positioned at an angle between the bundle and the floor. Although Jackson did not check the ladder before climbing down to ensure that it was safe, he had no problems when he descended to the floor of Hold 2. Once they finished, Jackson exited the hold the same way he entered, using a portable, aluminum ladder. While on the top rung of the ladder, just as he was swinging his left foot onto the top of the lowest level of cargo bundles, the ladder allegedly slid out from underneath Jackson, causing him to fall approximately eight feet to the floor, allegedly injuring his back, shin, and knee. Immediately after the accident, Jackson allegedly noticed the ladder was missing a footing on one side of its base. He claims that he did not see this allegedly dangerous condition before beginning his climb out because debris at the base of the ladder obstructed his view. No members of the vessel's crew were present during unloading operations. Jackson filed suit against Gearbulk and the vessel under §905(b) of the LHWCA. Gearbulk moved for summary judgment, arguing that there was insufficient evidence that the vessel owned the ladder involved in the alleged accident. Alternatively, Gearbulk insisted that, even if the vessel owned the ladder, the ladder did not pose an unreasonable risk of harm to an expert and experienced longshoreman. Jackson responded by arguing that there was at least an issue of material fact as to liability. The court disagreed, initially noting that Jackson had failed to introduce any evidence that Gearbulk owned the disputed ladder. Additionally, there was testimony that Flanagan makes it a practice to bring and use its own ladders. The court concluded there was insufficient evidence for a reasonable jury to infer that Gearbulk owned the defective ladder. The court found the remainder of Jackson’s arguments irrelevant. Additionally, the court found no evidence that the vessel had a duty to discover and warn of its defective portable ladder and there was no indication that the vessel had a duty to check its stow to ensure that defective ladders were not left by longshoremen at previous ports. The court noted that Jackson’s entire case hinged on a vessel employee, rather than a fellow longshoreman, placing the ladder on the floor of Hold 2. Yet, there was no evidence that the vessel's crew was present during the cargo unloading operations. Additionally, the evidence was uncontroverted that Gearbulk did not exercise active control of Hold 2 or had a duty to intervene. The court granted Gearbulk’s Motion for Summary Judgment and dismissed Jackson’s claim with prejudice. (USDC WDLA, January 5, 2011) 2011 U.S. Dist. LEXIS 917

RUSTY PARTS ON A SHIP CREATE A DUTY TO INTERVENE?
ROSS V. M/V STUTTGART EXPRESS, ET AL.

Reginald Ross was fatally injured, while employed as a longshoreman, working for SSA, aboard a vessel owned and operated by Hapag-Lloyd Aktiengesellschaft. Ross was assigned to a lashing gang and was lashing containers after they had been loaded onto the vessel. Although there were no eyewitnesses to what precipitated the containers to start swaying and striking Mr. Ross, causing his death, the parties agree that a container did in fact break loose while the stevedore's crane was attached to a container. Ross’s widow, minor children and estate (plaintiff) filed suit under §905(b) of the LHWCA, alleging negligence of Hapag-Lloyd, which caused the death of the decedent longshoreman. Hapag-Lloyd moved for summary judgment seeking dismissal of all of plaintiff's claims, claiming they did not violate any of their Scindia duties and that Ross’s own conduct in violating the "five container rule" was the cause of the accident not any negligence on the part of Hapag-Lloyd, who had no duty to supervise Ross in the exercise of his lashing duties aboard the vessel. The court observed that the plaintiff had presented evidence from an expert witness regarding the hazardous condition of the vessel, opining that the condition of the ship was unreasonably dangerous in that several key components were defective and that these defects caused the accident in this case, not the operation of the crane by the stevedores. Hapag-Lloyd countered that the evidence submitted by plaintiff showed that the hazards aboard the vessel in this case (i.e., rusty parts) were known to the longshoremen and thus easily avoidable. The court was not persuaded by the later argument, noting it was difficult to imagine how a longshoreman lashing containers would be able to conduct his lashing duties, avoiding rusted, brittle and cracked connectors, which serve to secure the cargo containers in place. Even if the longshoremen were aware of these open and obvious hazards, the court declined to conclude as a matter of law a longshoreman would, through the exercise of reasonable caution, have anticipated that the connector sockets would break as he was performing his lashing duties. The court felt that such a determination was inappropriate at the summary judgment stage. Accordingly, to the extent that the claimed violation of the duty to intervene was based on the allegedly defective connectors, summary judgment was denied. Finally, the court found that the undisputed evidence demonstrated that the SSA had active control over the operation of the crane as well as the containers involved in the incident in this case. Even viewing the evidence in a light most favorable to plaintiff, there was no evidence that Hapag-Lloyd was actively involved or controlling the stevedoring operations at port. The court granted the summary judgment motion with respect to the active control duty. Hapag-Lloyd’s motion was granted in part and denied in part. (USDC NDCA, January 3, 2011) 2011 U.S. Dist. LEXIS 1699

VAGUE SPECULATION FAILS TO CREATE MATERIAL FACT ISSUE IN §905(B) CLAIM
CHAPPLE V. NATIONAL SHIPPING COMPANY OF SAUDIA ARABIA, ET AL.

Kenneth Chapple alleged that he sustained personal injuries while working as a longshoreman, for Shippers Stevedoring Company, aboard a vessel owned by National Shipping Company of Saudia Arabia (NSCSA) and managed by Mideast Ship Management Limited. ns the vessel, and Mideast manages the vessel. At the time of his alleged injuries, Chapple was repeatedly tightening chain binders with a cheater bar to secure cargo on the vessel. Chapple claimed that the cheater bar slipped off a binder when he and a co-worker were using it, causing him to fall down twice and injure himself. Chapple filed suit against NSCSA and Mideast, under §905(b) of the LHWCA. NSCSA and Mideast moved for summary judgment, arguing that they did not breach their turnover duty because the vessel and cheater bar were turned over to Shippers with no hidden defects. Second, they did not breach their control duty because Shippers had exclusive control of the cargo operations at all relevant times. Finally, they did not breach their duty to intervene because no hazard existed or developed that triggered that duty. Prior to using the cheater bar, Chapple personally observed its open and obvious installation on the chain binder and, while he speculated that the cheater bar was too big, he was unable to state why it slipped. Nevertheless, Chapple argued that the defendants breached their duty of reasonable care over equipment within their control, and that they breached their duty to provide him with a reasonably safe place to work. The court grants the defendants' motion for summary judgment, which Chapple never responded to, because the court finds that no genuine issue of material fact existed that could subject the defendants to liability. The court held that Chapple’s speculation that the cheater bar was too big did not create a material fact issue. Nor had Chapple raised a genuine issue of material fact to implicate the turnover duty. Similarly, the court found that the defendants did breach their control duty or duty to intervene. The court granted the motion for summary judgment in favor of NSCSA and Mideast. (USDC SDTX, January 13, 2011) 2011 U.S. Dist. LEXIS 3241

WHO PUT THAT SLIPPERY STUFF THERE - THE STEVEDORE OR THE SHIP?
STRINGFELLOW V. BEREEDERUNGSGESELLSCHAFT H. VOGEMANN GMBH

Deborah Stringfellow was working as a winch driver during loading operations aboard a Bereederungsgesellschaft H. Vogemann GmbH (BHV) cargo vessel, when she placed her foot on some stairs and allegedly stepped on a clear substance that was on and under the steps, causing her to slip, fall, and suffer injury. Both Stringfellow's fall and the slippery substance were witnessed by other longshoremen and supervisors. The vessel crew was shown the slippery substance and advised that it was a safety hazard requiring immediate collection. The crewmembers then cleaned the slippery substance from the steps and deck, using a bucket of sand or sawdust and some rags. Stringfellow filed a §905(b) action against BHV, under the LHWCA, alleging the BHV’s liability for negligence in connection with an incident. BHV moved for summary judgment, offering evidence that before Stringfellow's shift began on the day of the incident, vessel officers conducted an inspection of the deck and there was no oil on the deck of the vessel. The crew did not become aware of the incident in which Stringfellow was injured until long after the fact. The court found that Stringfellow had offered testimonial evidence to the effect that the slippery substance that caused her fall did not appear on the stairs and deck as a result of the longshore workers’ loading operations. Although this evidence was not by any means sufficient to establish as a matter of law BHV’s liability for negligence under §905(b), the court found that it was sufficient, at a minimum, to create a question of material fact as to whether the slippery substance may have been present at the time the work site was turned over to the stevedore. The court held that, because a finder of fact could reasonably conclude from evidence in the record that a slippery oil covered the stairs at the moment of turnover, there was necessarily a question of fact as to whether BHV may have violated its turnover duty of safe condition to Stringfellow and her employer, causing her accident. BHV’s motion for summary judgment was denied. (USDC OR, January 5, 2011) 2011 U.S. Dist. LEXIS 1062

COURT REJECTS “MY BROKER TOLD ME I DIDN’T NEED USL&H” DEFENSE
LOWE V. WHITEHEAD CARGO CONSULTANTS LLC, ET AL.

Valencia Lowe was working for Whitehead Cargo Consultants, LLC, a company owned by co-defendant Rebecca Whitehead, as an hourly cargo inspector, when she was allegedly injured as she checked cargo on a dock next to a vessel hold. Specifically, Lowe claimed that a roll of paper weighing several thousand pounds, struck her as it was being moved into the vessel hold for loading. Lowe fell forward into another roll of paper and allegedly sustained injuries to her back, legs, and body. Lowe claimed that she underwent spinal surgery as a direct result of this injury. Lowe filed suit alleging that Whitehead’s failure to maintain a safe work place and refusal to pay benefits under the LHWCA constituted employer negligence, citing 33 U.S.C. §905(a) as a bar to any affirmative defenses raised by Whitehead. Ports America, Inc. subsequently sought leave to intervene and filed a complaint against Whitehead for breaching various obligations, including Whitehead's duty to secure payment of no-fault compensation benefits as required by the LHWCA. Whitehead subsequently filed a third-party complaint against Troy Brimage and SIG/SIG Insurance Services, LLC (collectively “third-party defendants”) alleging that it had been issued a Texas Workers Compensation (TWC) Insurance policy and alleged that third-party defendants had assured Whitehead that LHWCA insurance was not needed to protect Whitehead's employees and that TWC insurance coverage would be sufficient. Instead, the TWC insurance carrier denied Lowe’s claim after it determined that Lowe was a longshoreman whose injury fell within the LHWCA, therefore requiring LHWCA coverage. Whitehead alleged that the third-party defendants’ actions constituted a breach of the common law duty of good faith and fair dealing owed by an insurer to its insured, negligence, and promissory estoppel. Third-party defendants filed a Rule 12(b)(6) Motion to Dismiss, arguing that the duty of good faith and fair dealing is owed by an insurer to an insured, not by an insurance agent/agency to the insured. Viewing the complaint in the light most favorable to Whitehead, the court found that the third-party defendants were not the insurance carrier who entered into the insurance policy contract with Whitehead, rather they were the broker and agent. As such, the court held there was no contract between Whitehead and third-party defendants, or a privity of relationship between the two sides, that would give rise to a duty of good faith and fair dealing. The court granted third-party defendants 12(b)(6) Motion to Dismiss and dismissed Whitehead's third-party claim of a breach of the duty of good faith and fair dealing. (USDC SDTX, January 20, 2011) 2011 U.S. Dist. LEXIS 5294


ISSUES OF CONTROL OVER ALLEGED BORROWED SERVANT ARE IN DISPUTE
MECHE V. MARINER ENERGY RESOURCES, INC., ET AL.

Bryan Meche was employed by Acadiana Production Service, Inc. as a rigger and was working in the course and scope of his employment, on an offshore fixed platform owned by Mariner Energy, Inc., when he was allegedly injured. Meche contended that he was injured when a methanol tank, owned by Mariner, "blew up" on the platform. Meche filed suit alleging that the accident was caused by the concurrent negligence of Mariner and Prosper Operators, Inc., a company engaged by Mariner "to conduct all aspects of the production operations" on Mariner's platform, in failing to provide a safe place to work and failing to properly warn of the unsafe work area. The defendants moved for summary judgment, claiming that Meche was Mariner's "borrowed employee" whose remedy was limited to workers’ compensation benefits under the LHWCA. Under the blanket service agreement, Mariner and Acadiana agreed that Acadiana was an independent contractor and that none of its employees would be deemed employees of Mariner. Based on a review of the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, the court determined that factual issues remained in dispute, particularly as regards the first, third and fifth Ruiz factors, that go to the issue of control. The court questioned whether Mariner exercised sufficient control over Meche, and the work he performed (factor one) so that it can be said that Mariner and Acadiana modified their express contractual agreement (factor three), which prohibited application of the borrowed employee doctrine, and that Acadiana relinquished control over Meche while he was working on the Mariner platform (factor five). The court held that these inquiries required further factual findings before it could determine borrowed employee status as a matter of law. The court noted that deposition testimony on the control issue was weaker and more equivocal than the conclusory assertions made in defendants supporting affidavits. Based on the disputed material issues of fact on the issue of control summary judgment on Meche’s status as a borrowed employee was precluded and Mariner's Motion for Summary Judgment was denied. (USDC WDLA, January 21, 2011) 2011 U.S. Dist. LEXIS 6084

And on the Admiralty front . . .

SUMMARY JUDGMENT PREMATURE WHERE FACTS ARE IN DISPUTE
GABARICK V. LAURIN MARITIME

Circuit Court Opinion

In an unpublished decision, the US Court of Appeals for the Fifth Circuit reversed a grant of partial summary judgment in favor of the owners of the Tintomara and remanded the case for further proceedings. As part of this multiparty litigation arising out of the July 23, 2008 collision between the Tintomara and the tug/barge Mel Oliver/DM 932, the owners of the Mel Oliver sought contribution from the owners of the Tintomara for allegedly causing the oil spill that followed the collision. In the motion for partial summary judgment, the owners of the Tintomara contended that the owners of the Mel Oliver stated in pleadings that they were in a contractual relationship with the company that operated the Mel Oliver and that the latter company was at least partially at fault. Under OPA 90, if those assertions are accurate, then the owners of the Mel Oliver would not be entitled to shift liability to a third party. The federal district court granted the motion for partial summary judgment, exonerating the owners of the Tintomara from liability under OPA 90. On appeal, the court said that there were contradictions in the various pleadings filed by the owners of the Mel Oliver and the exact contractual relationship between them and the operator of the Mel Oliver was still in dispute. Until that contractual relationship was resolved, summary judgment on this issue was premature. (5th Cir, December 30, 2010, UNPUBLISHED)

WE CAN’T CONSIDER DOCUMENTS THAT HAVE NOT BEEN ENTERED IN EVIDENCE
RUDOLPH V. D.R.D. TOWING COMPANY, LLC , ET AL.

Appellate Court Opinion

Randy James Rudolph was employed by D.R.D. Towing Company, LLC as a deckhand and crew member. Rudolph’s vessel was struck by another vessel owned and operated by Martin Operating Partnership, L.P. As a result of the collision, Rudolph was allegedly thrown from his bunk and within seconds had to escape his vessel, which was sinking. Rudolph filed suit against both D.R.D. and Martin, making various allegations of negligence and fault against both defendants. D.R.D.'s Answer incorporated an exception of res judicata, asserting that Rudolph had executed a receipt and release settling any and all claims within a few days of the incident made the basis of the suit. Rudolph filed an opposition to the exception and attached his own affidavit, setting out his version of the events surrounding the signing of the release. The district court granted the exception of res judicata from the bench and later provided written reasons for judgment, in which the court found the release was signed by Rudolph with full understanding of his rights. Rudolph appealed. The appellate court did not address the merits of the exception because its review of the record discloses a glaring flaw: Neither party introduced any evidence into the record at hearing of the exception. Although the parties both attached their documentary evidence to their memoranda in support of or in opposition to the exception of res judicata, the documents were not properly before the appellate court for review. Because the party who urges the exception of res judicata bears the burden of proving its essential elements by a preponderance of the evidence, the appellate court held that, if there is any doubt as to its applicability, the exception must be overruled. The trial court’s judgment was vacated and the case was remanded for further proceedings. (La. App. 5 Cir, January 11, 2011) 2011 La. App. LEXIS 23

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

Jimmy Mobley applied for employment at Danielle Marine Towing, II, LLC and responded in the negative on his Post Offer Pre-Placement Health Questionnaire to numerous questions regarding prior injuries to the back and treatment for back pain. Mobley also certified that he answered the questions truthfully. Mobley was allegedly injured while working as a relief captain aboard a tugboat owned and operated by Danielle Marine. As a result of the accident, Mobley was diagnosed with multiple lumbar disc herniations. Mobley later filed suit against Danielle Marine seeking, among other things, maintenance and cure, including compensatory and punitive damages for Danielle Marine's alleged arbitrary and capricious failure to pay maintenance and cure. Danielle Marine filed a motion for partial summary judgment arguing that it did not owe Mobley maintenance and cure due to his intentional concealment of a prior back injury pursuant to the McCorpen defense Danielle Marine argued that Mobley’s back injury was related to the injury that he concealed, and that if it had known about Mobley’s prior injury, it would not have hired him. In support of its motion, Danielle Marine submitted evidence that Mobley testified in his deposition that he sustained a work-related injury to his lower back while employed with United Tugs, which Mobley had intentionally concealed when he was hired by Danielle Marine. Mobley testified that he misrepresented his back condition when he applied for employment with Danielle Marine because he was afraid that he would not get the job if Danielle Marine knew about the work-related accident and back injury. Danielle Marine submitted an affidavit from its president that the concealment was material to Danielle Marine's decision to hire him. Finally, Danielle Marine submitted testimony from medical professionals regarding Mobley’s current and prior back injury to demonstrate that the injuries are related. Because all of the McCorpen elements were satisfied by the evidence presented with its motion, the court held that Danielle Marine was entitled to a judgment that it does not owe maintenance and cure benefits to plaintiff. Further, the court held that Danielle Marine was entitled to withhold maintenance and cure benefits because there was a reasonable McCorpen defense that Mobley had willfully concealed his medical condition. Therefore, Mobley was not entitled to compensatory or punitive damages for Danielle Marine's alleged failure to pay maintenance and cure. Danielle Marine’s supplemental Motion for Partial Summary Judgment was granted, and Mobley’s claims for maintenance and cure, and his claims for compensatory and punitive damages for Danielle Marine's alleged failure to pay maintenance and cure were dismissed with prejudice. (USDC EDLA, January 25, 2011) 2011 U.S. Dist. LEXIS 7122

PUNITIVE DAMAGES AWARDED FOR FAILURE TO PAY UNEARNED WAGES
LANPHERE V. EVICH

Ronald Lanphere was allegedly injured, when the pant leg of his rain gear became entangled the rotating shaft in the vessel's engine room, while working as a seaman "fish picker" aboard a fishing vessel owned and operated by Adam Evich. Lanphere’s alleged injuries arose due to contact with the unguarded rotating shaft. Lanphere had two knee surgeries, to reconstruct his medial collateral ligament, the medial meniscus and to reconstruct his posterior cruciate ligament. When Lanphere left the vessel Evich paid him $5,332.67 in estimated wages. The ship's gross earnings were $85,129.16. Accordingly, Lanphere should have received $8,512.91 in wages. However, Evich’s adjuster only paid Lanphere an additional $1,000 after the vessel’s gross earnings were calculated. Lanphere eventually filed suit under the Jones Act and general maritime law, arguing that he was entitled to a finding of negligence per se, because of his employer’s violation of Coast Guard regulation 46 CFR §28.2151, which requires suitable hand covers, guards, or railing to be installed in way of machinery which can cause injury to personnel, such as gearing, chain or belt drives, and rotating shafting. The court agreed, holding that Evich was negligent per se under the Jones Act and, due to the regulatory violation, Evich was not entitled to a finding of comparative negligence. Lanphere also claimed that Evich owed him unearned wages. Again, the court agreed , holding that Lanphere was entitled to an additional $2,180.24 in "unearned" wages. The court also found that while Lanphere had returned to his work as a heavy machinery operator, doing this work was held to be inconsistent with his physical abilities and contrary to medical recommendations. Rather, the court concluded that Lanphere was doing the work out of economic need and doing the work was exacerbating his injury, causing him additional pain and suffering. Although the court denied punitive damages for failure to pay cure, finding that Evich did not willfully fail to pay cure to Lanphere for recommended psychological counseling, as the "request" for payment authorization was ambiguous at best, the court, nevertheless, awarded $100,000 in punitive damages for Evich’s intentional and willful refusal to pay the additional unearned wages of $2,180.24, in addition to prejudgment interest. The court entered judgment against Evich and in favor of Lanphere in the sum of $1,120,166.96, plus attorney fees and taxable costs. (WA Sup. Kings, January 6, 2011)
Updater Note: Thanks to Chuck Davis for sharing this recent Washington state court decision with me. The decision addresses a number of issues common in Jones Act litigation, but also addresses some new issues. It appears to be the first application of Atlantic Sounding Co. v. Townsend as a basis for awarding punitive damages for failure to pay unearned wages to an injured seaman. The court’s punitive damage award also clearly exceeded the 1:1 ratio guidance laid out by the U.S. Supreme Court in Exxon Shipping Co. v. Baker, in which the majority said a 1-1 ratio for punitive damages is “a fair upper limit in such maritime cases.” Importantly, this opinion also holds that an employer is liable for negligence per se for a violation of 46 CFR 26.215 (which requires handrails and guards in way of machinery).

FALLON GIVES A JUDICIAL SMACK TO CENAC
NELTON V. CENAC TOWING CO., LLC

Brad Nelton allegedly sustained injuries while employed as a seaman by Cenac Towing Co., LLC. Nelton alleged he incurred his neck injuries while attempting to remove a nut that was fastened to a header valve, using a double-wrenching technique. Nelton was eventually diagnosed with a disc herniation at C6-C7. Nelton filed suit against Cenac, asserting claims under the Jones Act and under general maritime law. To the extent that Cenac willfully failed to satisfy its maintenance and cure obligations, Nelton also sought punitive damages and attorney's fees. Cenac denied liability, averring that any injury Nelton sustained was caused by his own negligence. Cenac has also asserted a counterclaim against Nelton seeking to recover maintenance and cure payments that it avers have been unnecessary because Nelton's injuries were caused by a prior car accident. At trial, Cenac introduced evidence that Nelton was in a car accident about four years after Nelton was hired by Cenac. Nelton's former spouse also testified that after the accident Nelton complained about his neck. However, the court felt her testimony and demeanor revealed bias, which raised credibility issues. Both liability experts testified at trial that the interlocking double-wrenching technique, used by Nelton on the date of his injury, is an unsafe way of removing a nut. The court concluded that the evidence showed that Cenac employees frequently used the interlocking double wrenching technique, making it an accepted practice on Cenac's vessels. Eight days after he was determined to have reached maximum medical improvement, Nelton was involved in another car accident. However, a second MRI taken after the car revealed no progression with respect to the disc herniation at C6-C7. The court concluded that the credible evidence demonstrated that the car accident caused nothing more than a flare up of Nelton's condition and that it did not yield a medically significant change in Nelton’s cervical spine at C6-C7. After Cenac refused to allow Nelton to change treating physicians, Nelton’s attorney sent Nelton to a well-known plaintiff’s cutter in Houston. Nelton eventually underwent an anterior cervical discectomy and fusion with instrumentation. Notwithstanding the finding that Nelton had reached MMI prior to the second car accident, combined with a finding that the car accident did not permanently aggravate Nelton’s cervical condition, the court nevertheless held that the surgery and the related medical services were reasonable and medically necessary. The court noted that Cenac had not paid for any healthcare services since Nelton was last treated by his original treating physician. The court opined that Cenac decided to stop the cure payments simply because Nelton declined to go to back to his original physician and, instead, started treating with a new surgeon in Houston. The court also concluded that Cenac was negligent in its supervision and training of Nelton with respect to the removal of nuts and bolts and this negligence played a part in producing the disc herniation at C6-C7 and the resulting radiculopathy, and that neither car accident caused the condition. However, in light of his experience working not only as a deckhand, but also as a tankerman, the court found Nelton to be 30% contributorily negligent. Noting that a vessel may be deemed unseaworthy because of an unsafe method of work, the court also concluded that Cenac’s vessel was unseaworthy on the date of Nelton’s injury, because the interlocking double-wrenching technique was an unsafe way of removing nuts and bolts, and was the proximate cause of Nelton’s injury. The court rejected Cenac's argument that the primary duty rule shielded it from liability because Cenac was, in part, at fault for Nelton's injury. Accordingly, the primary duty rule did not operate to bar Nelton from any recovery. Because Cenac did not seek a medical opinion regarding Nelton's medical condition before deciding to terminate the cure payments, the court concluded that punitive damages and attorney's fees were appropriate. After reducing damages for Nelton’s contributory negligence, the court awarded damages of $622,548.48, along with punitive damages of $5,000.00, attorney fees of $2,000, and ongoing maintenance until Nelton attained MMI; as well as pre- and post-judgment interest. Finally, the court held that Cenac was not entitled to recover any maintenance and cure payments, dismissing its counterclaim with prejudice. (USDC EDLA, January 25, 2011) 2011 U.S. Dist. LEXIS 7129

SHIPOWNER GETS DECLARATORY JUDGMENT ON MAINTENANCE & CURE ISSUE
AMERICAN SEAFOODS CO., LLC V. SWEENEY

In this case American Seafoods Co., LLC requested a declaratory judgment that it had paid all maintenance, cure, and unearned wages owed to its employee, Mason Sweeney. The court acknowledged that American Seafoods had submitted unopposed evidence that demonstrated that it had satisfied its obligation to pay maintenance, cure, and unearned wages to Sweeney arising out of the injury he allegedly sustained while working as a seaman aboard an American Seafoods fishing vessel. The court also noted that it construed Sweeney’s failure to oppose American Seafoods motion as an admission that the motion had merit. Accordingly, the court entered judgment, in favor of American Seafoods, declaring that it had paid all maintenance, cure, and unearned wages owed to Sweeney. (USDC WDWA, January 20, 2011) 2011 U.S. Dist. LEXIS 5320

SHOCKING!
WILLIAMSON V. HERCULES OFFSHORE, INC.

James Williamson, an employee of Hercules Offshore, Inc. worked as an electrician aboard the jack-up rig owned by Hercules. Williamson was assigned to check a breaker that controlled the brake popper. While wearing protective rubber electric lineman’s gloves, Williamson used a voltage meter to check the voltage on the front of the breaker and was able to read voltage. Williamson then removed the lineman's gloves in order to check the wire connections on the back of the breaker to determine if they were loose. While attempting to check the wire connections on the back of the breaker, Williamson received an electric shock and alleged that he sustained various injuries as a result of the electric shock. Williamson filed suit against Hercules alleging claims for negligence under the Jones Act and for unseaworthiness under the general maritime law. Hercules moved for summary judgment on all of Williamson’s claims contending that the rig was seaworthy and that Williamson’s negligence was the sole cause of the accident. Hercules argued that Williamson was a well trained electrician who was the head electrical employee aboard the rig, that he exceeded the approved scope of his assignment by attempting to check the wire connections on the back of the breaker, and that he breached his duty to perform the job in the safest manner possible by failing to wear insulated gloves when attempting to check the wire connections on the back of the breaker. The court observed that Williamson had testified in his deposition that the breaker at issue was old and that it had not been checked or used before. There was also a dispute about the scope of the task Williamson was assigned. The court concluded that Williamson’s testimony created a genuine issue of material fact as to whether the scope of his assignment was the tasks specifically identified on the JSA or whether his assignment also included checking the wire connections for the breaker to determine if they were loose, noting that resolution of that issue falls within the province of the jury. The court also pointed out that Williamson’s testimony also raised a genuine issue of material fact as to whether Hercules was negligent concerning the placement of the breaker, noting there was evidence that the breaker was located very low, and pointing to Williamson’s testimony that he could not get into the area where the wire connections were wearing the gloves. Viewing the evidence, and the factual inferences drawn from the evidence, in the record in light most favorable Williamson, the court declined to conclude that no reasonable jury could find that Hercules was not negligent to some degree. The court also held that the same evidence which raises a genuine issue of material fact with respect to the location and configuration of the breaker and the surrounding area created a genuine issue of material fact as to whether Hercules’ vessel was seaworthy. The court denied Hercules’ motion for summary judgment. (USDC EDLA, January 18, 2011) 2011 U.S. Dist. LEXIS 4549

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

Michelle Alario was hired by Offshore Service Vessels, LLC as a vessel cook. Alario was working in this capacity aboard a vessel servicing a rig when she allegedly sustained injuries. Alario claimed that she had retired to her cabin and went to bed, only to awake after a few hours later, when she allegedly stumbled across the room and struck her right shoulder and arm due to the rocking of the vessel. Alario eventually underwent a right transverse carpel ligament release and a right lateral epicondyle release. Offshore paid maintenance and cure as well as advance wages during Alario’s treatment. Nevertheless, Alario filed a Jones Act and general maritime suit, alleging that her injuries were proximately caused by the negligence of Offshore and the unseaworthiness of the vessel. Offshore moved for summary judgment on both liability and maintenance and cure. On liability, Offshore argued that Alario failed to produce any evidence that would suggest it lacked ordinary care, failed to exercise ordinary prudence, or that the vessel was unseaworthy. Rather, according to Offshore, Alario merely alleged that she fell as a result of rough sea conditions, ordinary for that time in the Gulf and similar to what she had experienced before. As to Alario’s maintenance and cure claim, Offshore contended that because Alario’s treating physician had opined that she had reached maximum medical improvement, and no other physician has disagreed with that conclusion or even recommended a different course of treatment, summary judgment is appropriate on this issue. The court observed that Alario’s complaint alleges that she fell and was injured "due to the violent motions" of the vessel. When asked at her deposition whether she had experienced similar weather conditions on the vessel before the night of her accident, Alario responded, "Yes. And worse, way worse." Based upon the allegations and deposition testimony, the court was unable to conclude that there existed any genuine issues of material fact as to Alario’s Jones Act and unseaworthiness claims. The court held that Alario failed to establish that her injuries were the fault of the Offshore or due to problems with its vessel. There was simply no evidence that the seas at the time in question were unusually rough or unsafe for the area and time of year. Summary judgment was granted in favor of Offshore on Alario’s Jones Act and unseaworthiness claims. However, with respect to Alario’s maintenance and cure claim, the court concluded that Alario had demonstrated, based upon the tests conducted after she was determined to be at maximum medical cure, the possibility, perhaps remote, that she has not reached maximum medical improvement. The court held that this was sufficient to overcome summary judgment on maintenance and cure, especially given that any ambiguities or doubts as to a seaman's right to maintenance and cure are to be resolved in favor of the seaman. The summary judgment motion was granted in part and denied in part.(USDC EDLA, January 7, 2010) 2011 U.S. Dist. LEXIS 1900

QUESTION OF FACT ON M&C MEANS QUESTION OF FACT ON PUNITIVE DAMAGES
WILSON V. KEVIN GROS OFFSHORE, INC.

Craig Wilson was employed by Kevin Gros Offshore, LLC as an oiler/deck hand aboard one of their towing vessels. Wilson alleged that he was walking in the engine room of the vessel carrying a five-gallon bucket of lube oil when the deck plating gave way and he fell through to the bilge floor underneath. As a result of the fall, Wilson claimed injuries to his lower back and right knee. Wilson sued Kevin Gros for maintenance and cure and for damages under the Jones Act, as well as damages caused by the vessel's unseaworthiness. Kevin Gros moved for partial summary judgment on Wilson’s maintenance and cure claim, and asked the court to rule that Wilson is not entitled to maintenance and cure or punitive damages as a matter of law, asserting the McCorpen defense against Wilson’s claims because Wilson intentionally concealed a prior back injury on a pre-employment medical questionnaire. Wilson argued that the court should deny Kevin Gros’s motion because genuine issues of material fact existed, arguing that his misrepresentation of his alleged prior back injury was only a misunderstanding and that there is no causal link between the alleged prior injury and the current injury that is the subject of his complaint. The court found that Kevin Gros failed to meet its burden of proof and that genuine issues of material fact existed as to whether Wilson intentionally concealed his alleged prior injury, whether Kevin Gros would have still hired Wilson if it had known of his alleged prior injury, and whether there is a causal link between the alleged prior injury and the injury that is the subject of Wilson’s current claim. Because there were genuine issues of material fact regarding whether Kevin Gros was entitled to assert the McCorpen defense, the court concluded that there were also genuine issues of material fact regarding whether Wilson was entitled to punitive damages. Kevin Gros’s motion for partial summary judgment was denied. (USDC EDLA, January 12, 2011) 2011 U.S. Dist. LEXIS 3086

COURT FACILITATES SETTLEMENT BY ORDERING MEDICARE SET ASIDE
BIG R TOWING, INC. V. BENOIT, ET AL

Big R Towing employed David Wayne Benoit as a captain aboard its towboat at the time of his alleged accident. Benoit claimed that he injured his back and hip while performing deck work on the tow, a task he was allegedly restricted from performing due to preexisting conditions in his spine for which he had undergone multiple surgical procedures in the past. Benoit did not return to work and was paid maintenance and cure benefits pursuant to the general maritime law, however, a dispute eventually arose among the medical doctors (Big R’s and Benoit’s) as to whether Benoit needed surgery on his back and a hip replacement. Big R filed suit for declaratory relief on the issue of whether maintenance and cure was owed for the medical procedure recommended by Benoit’s treating orthopedist. Benoit filed a counterclaim seeking damages under the Jones Act and general maritime law. Liability and the need for future medical treatment were vigorously contested. Big R and Benoit eventually agreed to settle their disputes; however, since Benoit was receiving Social Security disability benefits, part of the consideration for the settlement was that Benoit would be responsible for protecting Medicare's interests under the Medicare Secondary Payor statute. As such, an oral motion was made for the court to determine the future medical expenses in order for Benoit to set aside funding, taking Medicare's interests into account, in order for Medicare to remain as a secondary payor Based upon the evidence adduced at a hearing on the issue the court determined that $52,500.00, which represented more than half of the net settlement proceeds, would be sufficient to fund Benoit’s future medical expenses and should be set aside for that purpose. The court proceeded to issue an order to that effect. (USDC WDLA, January 5, 2011) 2011 U.S. Dist. LEXIS 1392
Updater Note: There are three distinct points of interest in this case: 1. The court recognized that Medicare does not have a current policy or procedure in place to address the adequacy of future medicals in liability cases. 2. The court noted Benoit was not going to be a Medicare beneficiary within thirty months of settlement based upon age, although receiving Social Security Disability benefits. 3. The court considered the medical evidence when arriving at the appropriate amount, not merely a stipulation by the parties. Although it was probably not necessary to do the set aside, it was interesting that the court took the initiative to order the set aside amount, rather than letting Medicare make that determination.

COURT BUYS ARGUMENT THAT FALL IN AIRPORT CAUSED BY WORK INJURY
FERNANDEZ V. GLOBAL INDUSTRIES LTD, ET AL.

Arturo Lopez Fernandez, an employee of Global Industries LTD, was allegedly injured while using rigging designed and manufactured by Holloway-Houston, Inc. Fernandez was involved in performing a test lift and Holloway had designed, manufactured, assembled and delivered the rigging to the test site. The rigging (shackles and slings) are strung through four equalizer blocks and sheaves, designed to equally distribute the load among the blocks, each capable of holding up to 1.562-5 tons per block. The test barge was lifted from the water and was being held in position when two of the equalizer blocks failed causing one side of the lift barge to drop back into the water. Debris from the equalizer blocks was blown/thrown over a wide area. As the debris was scattering, undetermined parts allegedly struck Fernandez’s left hand and right leg, causing his alleged injuries. Fernandez also asserted that he suffered a subsequent injury, when he slipped in an airport lavatory, that he relates was caused in whole or in part by the disabling physical condition that he suffered as a result of the rigging failure. Holloway disputed that the causal connection of the fall in the airport. Holloway also argued that side loading, caused by Global's connection of tugger lines from the tugger wench to shackles on the rigging caused or contributed to the failure of the equalizer blocks. The court rejected this argument as unfounded, since two loads were safely lifted before the failed lift. The court found that there was no evidence that the tugger winch or lines was a cause or a contributing cause of the failed lift. The court found that Holloway was negligent in failing to warn Global that the equalizer blocks were a new design and the product design itself was faulty. The court held that Fernandez, had established by a preponderance of the evidence that he should prevail on his claims of general negligence and products liability. The court also bought the argument that Fernandez suffered facial injuries and a fractured pelvis in the airport fall, which was contributed to, or caused in whole or in part, by Fernandez’s inability to control the movement of his right leg as he lost his balance. The court opined that the evidence showed that without the physical limitation to his right leg, in all likelihood, Fernandez would not have sustained the injuries that he experienced on that occasion. The court held that the injuries sustained by Fernandez were proximately caused by the negligence of Holloway and that neither Global nor Fernandez were negligent to any degree in causing the occurrence in question. The court awarded damages to Fernandez in the total amount of $1,922,324.36, plus prejudgment interest. (USDC SDTX, January 6, 2011) 2011 U.S. Dist. LEXIS 1222

RESTRAINING ORDER LIFTED IN LIMITATION PROCEEDING
IN RE: BLUEGRASS MARINE LLC

This case involved a towing vessel, owned and operated by Marquette Transportation Company, LLC and its subsidiary Bluegrass Marine, LLC (hereinafter Bluegrass), which was towing seven unmanned barges, when one of the barges broke loose. A deckhand, Gary Levis, was allegedly injured attempting to recover the barge when his foot became tangled in a line. Bluegrass filed for limitation of liability, arguing that its tug was in a seaworthy condition, being operated in a non-negligent manner during the incident, and that the injury and losses arising from the incident were not due to any fault, negligence or lack of due care on the part of Bluegrass. Levis asserted a claim for damages for the injury he allegedly suffered during the incident. He was the only individual to submit a claim. In accordance with the applicable law, Levis filed a number of stipulations as to Bluegrass’s liability and the court's jurisdiction over parts of his action and petitioned the court to dissolve the restraining order so that he could bring suit in a forum of his choosing. Bluegrass requested that the court enter a default judgment against all parties who have not filed claims within the one-year limitations period. After a close review of limitation act precedent and Levis's stipulations, the court concluded that dissolution of the previously entered restraining order was proper, finding that Levis is the only current claimant and he had conceded that the court had the exclusive authority with respect to the limitation action. The court also entered a default judgment against all persons/entities who have a claim against Bluegrass arising from the marine accident described in the Complaint for Exoneration for Limitation of Liability, but who had failed to timely appear and/or file an Answer and/or Claim. (USDC WDKY, January 18, 2011) 2011 U.S. Dist. LEXIS 4624

COURT GRANTS LIMITATION ACTION DUE TO LACK OF PRIVITY & KNOWLEDGE
DELTA TOWING LLC V. BASIC ENERGY SERVICES

Basic Energy Services retained the services of Delta Towing L.L.C. to tow its barge. Two tugboats owned by Delta were dispatched to undertake the tow of Basic’s barge. While the tow was proceeding under a bridge, Basic’s barge allided with the bridge, pulling the mast out of position and resulting in significant damage to the derrick, the rig and its equipment. Basic claimed it was entitled to $927,424.27 for all property damages caused to its barge in the allision Approximately fifteen minutes prior to the allision, Delta’s captain on the lead tug turned the controls over to an apprentice mate, so the captain could go to his cabin and rest. The apprentice mate's license did not permit him to operate the tug while towing the rig, unless the captain was on the bridge. Delta filed a limitation of liability action to limit damages to the value of its vessels and freight pending, or $866,496. After due consideration of the facts and evidence presented by the parties at trial, through witnesses, exhibits and deposition testimony, the court held that it was established by a preponderance of the evidence that Delta was entitled to limitation of liability, and within that context, Delta was liable to Basic in the full amount recoverable within the limitation proceeding, together with prejudgment interest, due to Delta's negligence and the resulting damages to Basic's property. Although Delta admitted the cause of the allision was its captain’s failure to complete the pre-tow questionnaire and/or properly calculate the clearance under the bridge, the court found that Delta did not have privity or knowledge of the captain's failure to fill out the pre-tow questionnaire, nor of his failure to properly calculate the clearance under the bridge. The court also found the fact that an apprentice mate was at the wheel at the time of the allision was not a proximate cause of the allision. Even had the captain been at the wheel at the time of the allision, the allision would still likely have occurred, as the captain had failed to determine the clearance under the bridge prior to the allision. The testimony and evidence at trial convinced the court the repairs to Basic’s barge were conducted in a reasonable amount of time and there was an active market during the time the barge was under repair, to find loss of use is owed. However, because the monetary amount of damages the court has previously determined is owed by Delta to Basic is already in excess of the recoverable amount within the limit of liability, the court declined to make detailed findings of loss of use damages. Basic was awarded $866,494.00 (the maximum liability available), plus prejudgment interest from the date of loss. (USDC WDLA, January 12, 2011) 2011 U.S. Dist. LEXIS 4961

COURT VOIDS ARBITRATION AGREEMENT FOR PERUVIAN SEAMAN
MOROCHO V. CARNIVAL CRUISE LINES

Bernard Morocho, a Peruvian seaman and former employee of Carnival Cruise Lines, filed a five-count complaint against Carnival in state court, alleging Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, failure to treat, and seeking wages and penalties under 46 U.S.C. § 10313. Carnival removed the case to federal court pursuant to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Act, based on the arbitration provisions in the Seafarer's Agreement entered into between the parties. Carnival also filed a motion to compel foreign arbitration. Morocho then filed a motion to remand the case, arguing that the arbitration provision in the Agreement was void under Thomas, because the choice-of-law and choice of forum clauses worked in tandem to operate as a prospective waiver of a seaman's right to pursue his statutory remedies under U.S. law. Carnival argued that the Court should not determine the validity of the Agreement at issue in the case, maintaining that this issue was one for the arbitrator to determine. The court rejected this argument, holding that Morocho had framed his issues as challenges to the validity of the arbitration delegation clause itself, as opposed to the entire Agreement. Carnival also argued that Thomas does not invalidate the parties' agreement to arbitrate. The court disagreed, finding that Thomas controls and the arbitration clause in the Agreement was void where the choice-of-law provision required that Panamanian law be applied, thus precluding Morocho’s statutory claims under U.S. law and precluding even the possibility that U.S. law will be applied to his non-statutory claims. The court agreed with Morocho, finding the arbitration provision void under Thomas and granted Morocho’s motion to remand. Carnival’s motion to compel arbitration was denied as moot. (USDC SDFL, January 18, 2011) 2011 U.S. Dist. LEXIS 4316

Quotes of the Month . . .“Hold fast to dreams, for if dreams die, life is a broken winged bird that cannot fly.”--Langston Hughes

“Think like a man of action, and act like a man of thought."--Henri Bergson

“One can be very happy without demanding that others agree with them.” --Ira Gershwin


Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

If the links above do not take you directly to the case, try cutting and pasting the link into the URL location on your browser. Links are not provided for District Court or other cases where a charge is imposed by the court for access.

Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.

NOTE: This is an email list for anyone interested in up-to-date Longshore and related maritime news. Please invite others to join. They may do so by simply sending an email message to LongshoreUpdate-subscribe@yahoogroups.com . Content will be in the form of summaries of recent court decisions, commentary, and (where possible) links to the decisions. Generally, mailings will be limited to once a month. Anyone working in the Longshore environment should find this useful. To unsubscribe at any time, please just send an email message to LongshoreUpdate-unsubscribe@yahoogroups.com .

Redistribution permitted with attribution.