March 2011
Notes From Your Updater - Mike Niss, Longshore Division Director at the U.S. Department of Labor, will retire on February 28, 2011. Mike has served as the Director of the Longshore & Harbor Workers’ Compensation system since 1999, and was appointed to the Senior Executive Service in 2008. He leaves civil service to join his wife, horses, and dogs at their home in New Mexico. I still remember when Mike Niss took over the post of Director from Joe Olympio, who had been shipped off to Y2K never-never land. Mike was a refreshing change and well received by all in the Longshore community. With both John Chamberlain and Mike Niss headed into those enjoyable retirement years, one would think there would be a huge vacuum at National office. But fear not my Longshore friends! Miranda Chiu, currently Branch Chief for Policy and Regulation, will take over as Acting Director of the Longshore Division. Ms. Chiu is extremely well qualified and highly respected in the industry, having worked in the San Francisco Longshore district office as a Claims Examiner, as a paralegal at a major Longshore law firm, and as a claims supervisor in private industry before taking on her duties as Branch Chief in 2002. Ms. Chiu holds a Masters Degree in Comparative Literature, has published a section of The Longshore Textbook, 2nd and 3rd Editions, and has won numerous awards for her work at the Department of Labor. Beside all that hoopla, she is a really nice person. I, for one, look forward to working with Ms. Chiu. On behalf of the Longshore community, I wish both Mike Niss and John Chamberlain a long and enjoyable retirement. I also congratulate Miranda Chiu on her new position and wish her much success in her future endeavors.
The United States Supreme Court has granted the petition for certiorari in the case of Pacific Operations Offshore, LLP v. Valladolid, Docket No. 10-507, on February 22, 2011. The question presented to the court is: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation? Josh Gillelan represents the respondents in the case.
On January 4, 2011,the Seventh Circuit Court of Appeals denied a rehearing or rehearing en banc in the case of Deering v. National Maintenance & Repair, Inc, 627 F.3d 1039; 2011 U.S. App. LEXIS 620 [see January 2011 Longshore Update]. This was the case in which the 7th Circuit refused to follow the 5th Circuit and held that a shipowner-employer is prohibited from pursuing a claim against its negligent seaman-employee for property damage.
OWCP Fee Schedule Change - Effective 12/05/10, the fee schedule allowance for anesthesia services will be based upon the formula: (Time Units + Base Units) x Conversion Factor. In addition, every anesthesia procedure billed to OWCP must include one of the following modifiers: AA, QY, QK, AD, QX, or QZ. When multiple procedures are performed during a single anesthetic administration, reimbursement is based on the line item representing the most complex procedure.
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. His web site, http://www.johnchamberlainconsulting.com/ , is up and running.
THE TERM “COMPENSATION,” UNDER LHWCA, DOES NOT INCLUDE MEDICAL
WHEELER V. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL
Circuit Court Opinion
BRB Decision
ALJ Decision
Stephanie Wheeler allegedly sustained an injury to both knees while working for Newport News Shipbuilding & Dry Dock Company. She sought and was awarded scheduled permanent partial disability compensation, as well as a period of temporary total disability compensation. Wheeler later sought continuing permanent total disability compensation, which the Newport News contested. Following a new hearing, an ALJ issued an order denying Wheeler's claim for permanent total disability compensation. Wheeler appealed, and the Board affirmed on September 12, 2003. No further appeal was taken from that order, and by that date, Newport News had completed its compensation payments for Wheeler's scheduled permanent partial disability. Following the 2003 BRB decision, Wheeler continued to seek regular medical treatment for her knees, which Newport News authorized and paid. On September 13, 2007, Wheeler submitted a request for modification of her permanent partial disability award, pursuant to Section 22 of the Act, once again seeking total disability benefits as a result of the deteriorating condition of her knees. Wheeler’s request for modification was rejected as untimely by an ALJ because the request was not filed within one year "after the date of the last payment of compensation" or "after the rejection of a claim," as set forth in Section 22. In determining Wheeler's request for modification was untimely, the ALJ expressly rejected Wheeler's argument that the term "compensation" as used in Section 22 of the Act includes the voluntary payment by an employer of a claimant's medical expenses. Wheeler appealed the ALJ's decision to the Board. The opinion and order of the Board affirmed the ALJ's denial of Wheeler's modification request, finding the request was untimely and thus time-barred. Wheeler appealed from the decision of the Benefits Review Board, denying her request for modification as untimely. The Fourth Circuit Court of Appeals concluded that, in view of the lack of any controlling precedent and the lack of the clear inclusion or exclusion of medical benefits as part of compensation in either the definition of "compensation" or the text and structure of §922, the meaning of "compensation" in §922 was ambiguous. The legislative history of §922 reflected Congress's attempt to strike such a balance, and supported the conclusion that "compensation" in §922 did not include payment of medical benefits. The court concluded that the term "compensation" in §922 did not include voluntary payments by an employer for medical services provided to an employee. As such, the payments of such services did not extend the §922 limitations period, and because Wheeler did not file her request for modification within the one year period set forth in §922, it was time-barred. The decision of the Board was affirmed. (4th Cir, February 15, 2011) 2011 U.S. App. LEXIS 2889
Updater Note: The Solicitor (oops, I meant the Director, OWCP) and Greg Camden recently teamed up at the 4th Circuit, in an attempt to destroy one of the last vestiges of repose under the Act, by claiming that making a medical payment to a health care provider in an otherwise time-barred claim, restarts the limitations period under section 22 of the Act. Signaling a close decision, the appellate court asked for additional briefing after oral argument on the issues of legislative history and judicial deference to the Director, and finally decided that, at least under section 22 of the Act, “compensation” does not mean medical payments paid under section 7. The holding in this case appears to apply broadly even to medical expense co-pays and reimbursements. My thanks to Jonathan Walker, of Mason, Mason, Walker & Hedrick, P.C. in Newport News, VA, for sharing this decision and his comments with me.
FORMAL HEARING BEFORE MMI LANDS EMPLOYER CONTINUING TTD AWARD
TETRA TECHNOLOGIES, INC. V. DIRECTOR, OWCP, ET AL. [MCCLENDON]
Circuit Court Opinion
BRB Decision
ALJ Decision
Kevin McClendon allegedly was struck on his head and neck, and knocked unconscious, by a falling wing valve during the course of his employment as an “A” operator/rigger with Tertra Technologies, Inc. McClendon subsequently sought medical treatment for complaints related to his back, neck, and both shoulders. Tetra voluntarily paid LHWCA benefits to McClendon for eight months. Following a formal hearing, the ALJ found that McClendon’s neck, back, and shoulder conditions were causally related to his employment with Tetra. The ALJ also determined that McClendon’s left shoulder condition had reached maximum medical improvement (MMI), but that his back, neck and right shoulder conditions had not, and that McClendon was unable to return to gainful employment. The ALJ awarded McClendon continuing temporary total disability compensation. On appeal to the BRB, Tetra challenged the ALJ’s findings regarding the nature and extent of claimant’s disability, claimant’s entitlement to medical benefits, the calculation of claimant’s average weekly wage, and its liability for an assessment pursuant to Section 14(e) of the Act. The BRB concluded that, based upon the medical evidence, the ALJ rationally found that McClendon had not reached MMI. Accordingly, the Board also affirmed the ALJ’s conclusion that McClendon was entitled to temporary total disability compensation. The Board went on to reject all of Tetra’s remaining challenges and affirmed the ALJ’s findings in all respects. On further appeal, the Fifth Circuit Court of Appeals also rejected Tetra’s arguments, finding no error, and, in a short per curiam decision affirmed essentially for the reasons given by the BRB. (5th Cir, January 31, 2010, UNPUBLISHED) 2011 U.S. App. LEXIS 2018
EMPLOYER FORCED TO PAY APPELLATE COST FOR IMPROPER INTERVENTION
PLASTIC SURGERY ASSOCIATES V. THE NACHER CORPORATION
Appellate Court Opinion
This dispute arose from an alleged work-related injury suffered by a Nacher Corporation employee, Johnathan Goodie. As a part of the Goodie’s medical care, Nacher authorized treatment by a Plastic Surgery Associates (PSA) associate physician. The treatment rendered to Goodie by PSA, as authorized by Nacher and as calculated under the Louisiana workers' compensation schedule, totaled $11,750.17. The payment to PSA for this treatment is the issue in this litigation. Goodie entered into a settlement agreement with Nacher and its insurer, not under the Louisiana Workers' Compensation Act, but pursuant to Section 8(i) of the LHWCA. The settlement, which meticulously detailed Goodie's medical care and purported to satisfy all of his claims for compensation and medical treatment, provides a total settlement amount of $20,356.98 paid directly to Goodie. In breaking down the categories of the settlement, the settlement agreement stated that $5,354.76 of the total amount was for outstanding medical bills, $4,307.67 was for future medical treatment, and $4,300.22 was for legal representation. The Section 8(i) settlement was eventually approved by the District Director. PSA filed a disputed claim for compensation against Nacher, seeking payment of the $11,750.17 owed for Goodie's medical treatment, before the Louisiana Workers’ Compensation Board rather than the LHWCA District Director. Nacher filed its exception of no subject matter jurisdiction and attached a copy of the previously-approved Section 8(i) settlement agreement between Goodie, Nacher, and Nacher’s insurer under the LHWCA. Before PSA filed any response to the exception, the workers’ compensation judge (WCJ) issued a judgment granting the exception and dismissing PSA's claim. PSA appealed the judgment. The appellate court reversed on a technicality, noting that La. Code Civ. P. art. 929(A) provides that declinatory exceptions require a hearing to determine the merits of a declinatory exception when decided in advance of the trial of the case. Noting that the WCJ decided the issue without holding a hearing and giving PSA an opportunity to be heard, the appellate court held that the WCJ's dismissal of PSA's claim was an improper ex parte order. The appellate court vacated the WCJ's judgment and remand the matter so that a hearing may be held to decide the merits of the declinatory exception of no subject matter jurisdiction. The court assessed all costs of the appeal to Nacher and its insurer. (La. App. 3rd Cir, February 2, 2011) 2011 La. App. LEXIS 112
JACK UP RIG ON OCS NOT A VESSEL IN NAVIGATION
BARKER V. HERCULES OFFSHORE, INC., ET AL.
Francis Barker, Jr, a welder employed by Frank's Casing, Inc., which was under contract to Hercules Offshore, Inc, was working on board Hercules' mobile offshore jack-up drilling unit, which at that time was attached to the seabed on the Outer Continental Shelf. Barker sustained his alleged injuries when he and his co-welder and longtime best friend Thomas B. Broussard were attempting to remove the pollution/oil pan in order to run a 60" pipe casing underneath the drilling floor. With Barker watching, the pan on which Broussard was standing fell into the ocean floor about 100 feet below. Broussard managed to hang onto a beam for some time, but then lost his grip. Barker was able to hold onto a beam, but he witnessed Broussard fall into the water, striking a beam on the way. Broussard's body was lifted from the water and flown out by helicopter. Barker asserts that he suffered severe permanent psychological trauma and physical pain and suffering, followed later by a cerebral stroke, which he claims was caused by the injuries he suffered from the accident. Barker brought suit under general maritime law and, alternatively, under §905(b) of the LHWCA and under Texas tort law to the extent it supplements or supplants maritime law, seeking general, special and punitive damages. Hercules removed the suit from state court to federal court. Barker moved to remand to case to state court, arguing that the tort at issue occurred on a vessel (a jack up drilling rig in the Gulf of Mexico off of Galveston, Texas), located on navigable water on the Outer Continental Shelf, and therefore maritime law, not OCSLA, applied to his action against third parties. Urging the court to deny the motion to remand, Hercules contended that the court had original federal subject matter jurisdiction based on OCSLA, that the case was properly removed on the basis of a federal question under OCSLA so there is no requirement of diverse citizenship, and that the Court should deny the motion to remand. Hercules also pointed out that the jack-up rig in dispute, on which the incident at issue took place, is also an OCSLA situs. The court initially noted its disagreement with Barker’s argument that the jack up rig is a vessel that was on navigable waters when the accident occurred so that general maritime law applied. The court found that removal was proper because (1) general maritime law, which if applicable might bar removal if it overlapped with OCSLA law, did not apply and therefore there was no overlap with OCSLA and (2) the court had federal question subject matter jurisdiction over cases and controversies "arising out of or in connection with" any operation involving the "development" of minerals on the OCS under OCSLA, citing 43 U.S.C. §1349(b)(1). Although Barker’s pleadings did not cite OCSLA, the court noted that statute governed the suit because the facts as alleged fall with the statute's jurisdictional grant. The court held that a jack up drilling rig affixed to the seabed of the OCS is considered to be a "device" for "the purpose of drilling oil," providing federal jurisdiction under OCSLA, and not a vessel subject to maritime jurisdiction. Nor did Barker’s claim arise from a traditional maritime activity related to navigation or commerce, but out of activities for developing oil and gas on the OCS. Thus there is no admiralty jurisdiction, and removal of his action was not precluded by overlapping jurisdiction. Barker’s motion to remand was denied. (USDC SDTX, February 1, 2011) 2011 U.S. Dist. LEXIS 9400
LHWCA PRECLUDES SUIT AGAINST FELLOW EMPLOYEE & PREEMPTS STATE LAW
BECNEL, ET AL. V. ANCO INSULATIONS, INC., ET AL.
Carl Becnel, Sr. worked as an electrician for Avondale Industries, Inc, where he was allegedly exposed to asbestos during his career. Becnel’s wife and two sons brought an asbestos products liability action against several defendants, including James O'Donnell, who served as an executive officer for Avondale, alleging that he failed to provide Becnel with a safe working environment at Avondale. Defendants have moved for summary judgment as O'Donnell's insurer, contending that the LHWCA, a federal statute, immunizes O'Donnell from liability insofar as O'Donnell was Becnel's co-employee. The court found that the applicability of the LHWCA to Becnel presented a problem to plaintiffs’' theory of liability because the LHWCA clearly immunizes a party's co-employees from civil liability under §933. Pointing to this provision of law, the moving defendants argued that the LHWCA preempts Louisiana state law to the extent it permits a party to sue his or her co-employee following a work-related injury. After a careful review of the relevant legal principles and the parties' submissions, the court concluded that the LHWCA preempts Louisiana state law insofar as Louisiana law permits certain plaintiffs to recover in negligence against their co-employees. The defendants' motion for summary judgment was granted. (USDC EDPA, January 28, 2011) 2011 U.S. Dist. LEXIS 9920
COURT AWARDS MAINTENANCE WITHOUT FINDING OF SEAMAN STATUS
STODGHILL V. C&M INDUSTRIES, INC. ET AL.
Elgin Stodghill filed a motion in state court seeking a temporary injunction to enjoin C&M Industries, Inc. to make temporary payments of maintenance and cure to him immediately in order to forestall his eviction from his residence and to permit him to continue receiving medical care and treatment for alleged injuries that he sustained while working aboard C&M’s vessel. C&M opposed the motion, arguing that the court could not order payments of maintenance and cure without establishing as a factual matter that Stodghill is a Jones Act seaman rather than a Longshore worker. The court rejected this argument, noting that C&M had cut off payments it had been making to Stodghill under the Longshore Act and had thereafter thwarted his rights to receive them by asserting in those proceedings that Stodghill was a Jones Act seaman rather than a longshoreman. The court observed that C&M had also made maintenance payments to Stodghill, but had cut those payments off as well. The court concluded that C&M was liable to pay him either maintenance or Longshore compensation. In light of C&M’s earlier position that . Stodghill was entitled to maintenance, as revealed by their voluntary payments to him of such amounts, coupled with their contention to the Department of Labor that he was not entitled to Longshore compensation because he was a Jones Act seaman, the court issued its injunction to require that C&M continue to treat him as such; but made no determination as to his status as either a Jones Act seaman or a Longshoreman. The court also found it likely that Stodghill would succeed on the merits and would suffer irreparable harm if no payments are made. C&M was ordered to make maintenance payments to Stodghill in the amount of $811 per week, both retroactively and going forward. effective retroactive to August 15, 2010. Defendants shall be credited with any amounts that have already been paid to Plaintiff. If in any future proceeding in this Court or elsewhere, Plaintiff is determined to be a Longshore worker, any payments owed to him under that statutory compensation scheme shall be credited with all payments made pursuant to this order for maintenance. (Va. Cir. Ct, December 22, 2010, UNPUBLISHED) 2010 Va. Cir. LEXIS 198
Updater Note: Just what we need - another admiralty-challenged judge awarding maintenance at a hugely inflated rate, without making the appropriate finding that the employee even qualifies as a seaman. Try reading the 3rd Circuit’s recent decision in Collick v. Weeks Marine, Inc., Judge Hall. Maybe you’ll learn something!
LHWCA IS OFFSHORE WORKER’S EXCLUSIVE REMEDY
ABRAM V. NABORS OFFSHORE CORPORATION
Ricky Abram worked for Nabors Offshore Corporation, as a roustabout and floor hand, and was allegedly injured while working on a drilling rig attached to the Outer Continental Shelf. Abram filed suit under the Jones Act in state court, but Nabors removed the case to federal under the Outer Continental Shelf Lands Act (OCSLA). Abram moved to remand. After requesting additional briefing on the subject, the court found that Abram was not a seaman under the Jones Act. Following the court’s ruling, Abram renewed his motion for remand, while Nabors moved for summary judgment. Noting its prior ruling that Abram did not qualify as a Jones Act seaman at the time he was injured, the court held that the case was properly removed from the state court on the basis of original jurisdiction under OCSLA. The court found that, because Abram is not a seaman within the meaning of the Jones Act, his exclusive remedy was the LHWCA, as extended by OCSLA. Abram's renewed motion to remand was denied and the court granted Nabors’ Motion for Summary Judgment. (USDC SDTX, February 8, 2011) 2011 U.S. Dist. LEXIS 12001
And on the Admiralty front . . .
5TH CIRCUIT REJECTS PROXIMATE CAUSE STANDARD IN JONES ACT CASE
CLARK V. KELLOGG BROWN & ROOT, LLC
Circuit Court Opinion
Aubrey Clark worked for Brown & Root Marine Operators (“Brown & Root”), a predecessor of Kellogg Brown & Root, L.L.C. (KBR), from 1972 to 1986 as a helper, rigger, and leadman aboard various barges owned by Brown & Root. The district court found that, while working for Brown & Root, Clark was exposed to benzene and used benzene as a solvent to clean his tools, his hands, and his equipment. Clark used benzene, on average, about every other day; however, the number of times he used it varied from day to day and from week to week. Clark was later diagnosed with acute myelogenous leukemia (AML) and filed suit against KBR, alleging that his benzene exposure while working for Brown & Root had caused his AML, and that KBR was liable to him for personal injury under the Jones Act as well as under admiralty theories of maintenance and cure and unseaworthiness. The district court held a three-day bench trial and entered findings of fact and conclusions of law finding KBR liable to Clark under the Jones Act but rejecting all other grounds of liability. Clark died shortly after trial. The district court entered a final judgment, and, pursuant to timely motions to alter or amend the judgment, an amended final judgment awarded relief to Richard Clark, administrator of Clark’s estate, (the “Clark Estate”) and against KBR. KBR timely appealed, asserting that the district court applied the wrong standard of proof and made factual, legal, and evidentiary errors with respect to the question of whether benzene exposure caused Clark’s AML, and erred by improperly applying the “featherweight” causation standard to Clark’s Jones Act claim rather than a “proximate” causation standard. KBR also argued that the district court’s finding of fact that benzene was a specific cause of Clark’s AML was clearly erroneous and that the court abused its discretion in allowing Clark’s expert causation witnesses to testify. In an unpublished decision, the US Court of Appeals for the Fifth Circuit ruled that a seaman is entitled to recovery under the Jones Act if his employer’s negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Although KBR pointed out that the U.S. Supreme Court has granted certiorari in the case of McBride v. CSX Transportation in order to review this very issue, the appellate court nonetheless affirmed, noting that a grant of certiorari does not alter binding precedent. Additionally, the appellate court found no abuse of discretion in the district court’s decision to admit Clark’s expert witnesses’ testimony—notwithstanding its refusal to wholly credit their assessment of the extent of Clark’s benzene exposure—and no clear error in the district court’s finding of specific causation. The judgment of the district court was affirmed. (5th Cir., February 4, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 2354
JAILHOUSE LAWYER’S RICO ACTION IS DISMISSED (CONT)
VICKERS V. WEEKS MARINE, INC., ET AL.
Circuit Court Opinion
Jimmie Vickers, an allegedly injured seaman, formally employed by Atlantic Sounding Co. Inc., filed a lawsuit pro se, alleging that Weeks Marine, Inc. and its wholly-owned subsidiary company, Atlantic Sounding (hereinafter “Weeks”), violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Vickers, a “jailhouse lawyer” alleged that Weeks engaged in a pattern of activity designed to manipulate the forums of various lawsuits filed by seamen they employed. Weeks filed a motion to dismiss the complaint, arguing that Vickers had no standing to assert violations under RICO because RICO does not extend to damages resulting from personal injury. The court initially pointed out that RICO creates a civil cause of action for a person injured in his business or property by reason of a violation of 18 U.S.C. § 1962, and that the phrase “injury to business or property” excludes personal injuries. The court concluded that Vickers’ complaint must be dismissed because Vickers failed to allege any damage to his business or property, and had only claimed to be injured economically and physically. Vickers’ complaint contained no allegations of other injuries not related to his alleged personal injury. Because all of Vickers’ alleged injuries are either directly related to, or pecuniary losses resulting from, a personal injury, the court held that he did not have standing to file a RICO claim. Weeks’ motion to dismiss was granted and Vickers’ RICO complaint was dismissed with prejudice. [see May 2010 Longshore Update] Vickers appealed contending that the trial court erred in dismissing his case, because the bodily injury he sustained ultimately caused economic damage to his corporation, Vickers Marine, Inc. In a short per curiam decision, the appellate court initially pointed out that, as there is no recovery under RICO for personal injuries, a plaintiff does not have standing to sue under 18 U.S.C. §1964(c) based on such injuries. The court concluded that any economic injury to Vickers’s corporation was the result of Vickers’s bodily injury. Thus, the district court did not err in dismissing his RICO action for lack of standing. The district court’s judgment was affirmed. (5th Cir, February 25, 2011, UNPUBLISHED)
Updater Note: Congratulations to Matt Popp of Waits, Emmett & Popp in New Orleans on another well-fought victory. Now we’ll just wait for the petition for certiorari.
NEGLIGENT FOR ASKING A DECKHAND TO RETRIEVE A MOORING LINE?
BONIN V. RYAN MARINE SERVICES, INC.
Circuit Court Opinion
This appeal involved a suit brought by Lavern D. Bonin, under the Jones Act and pursuant to general maritime law, against his employer, Ryan Marine Services, Incorporated, for injuries that he allegedly sustained to his left shoulder in the course of his employment. After a bench trial, the district court found in favor of Bonin and awarded him damages of $203,168. On appeal, Ryan Marine challenged the district court's findings of fact as to (1) negligence; (2) causation; and (3) the appropriate damages for Bonin's lost wages. Ryan Marine contended that there is no evidence or expert testimony to support a finding that its vessel captain was negligent. Ryan Marine also argued that even if Bonin or his fellow deckhand were qualified to testify as to whether the vessel captain was negligent, their testimony did not demonstrate negligence. The appellate court disagreed, noting that the record contained evidence that the vessel captain ordered the two other men to retrieve a heavy, waterlogged mooring line under dangerous conditions. Ryan Marine further contended that there was no showing of casual relationship between the vessel captain’s actions and Bonin’s injury. The appellate court pointed to the district court’s finding that the captain was negligent in sending the two men out to retrieve the mooring line at all, rather than simply ordering them to cut the mooring line, and that Bonin suffered the injury to his shoulder while attempting to retrieve the line. The appellate court also rejected Ryan Marine's final argument, that the evidence did not support the damages awarded to Bonin. The appellate court found that the district court held that any pre-existing condition that Bonin had was not acute or debilitating, and that this finding was plausible in light of the record as a whole. The appellate court concluded that the district court did not clearly err in its findings as to negligence, causation, or damages and affirmed the judgment in all respects. (5th Cir, February 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 3227
Updater Note: Thank goodness they didn’t publish this atrocity.
FAILURE TO NOTIFY COAST GUARD IS A CONTINUING OFFENSE
UNITED STATES V. CANAL BARGE CO.
Circuit Court Opinion
The US Court of Appeals for the Sixth Circuit ruled that the willful failure to notify the Coast Guard of a hazardous condition on a vessel is a continuing offense for purposes of venue. Canal Barge Co.’s barge was loaded with benzene and was under towage by Canal’s tug. While the barge was on the Mississippi River near St. Louis, it sprang a leak, emitting benzene. The pilot on the towboat instructed deckhands to seal the leak with a bar of soap. When notified by the pilot, the port captain instructed the pilot to apply a temporary epoxy patch. Meanwhile, the barge was taken down the Mississippi River to Cairo and then up the Ohio River toward its intended destination. The epoxy patch failed while the barge was near Louisville, four days after the initial leak. It was then that the Coast Guard was notified for the first time. A three-count indictment filed two years later in the Western District of Kentucky charged Canal Barge, its port captain, tow boat caption and pilot with: (1) conspiracy to violate the Ports and Waterways Safety Act (PWSA); (2) violation of the PWSA; and (3) negligent violation of the Clean Water Act. After a two-week trial, the defendants moved for a judgment of acquittal, arguing that the government had failed to prove that venue was proper in the Western District of Kentucky. The district court reserved ruling on the motion, and the jury returned a guilty verdict on Count 2, but acquitted the defendants of the remaining two counts. After being prosecuted and convicted, Canal again moved for dismissal, contending that the offense was committed, if at all, when the benzene leak initially occurred near St. Louis and could not be tried in any other venue. The district court granted the motion. The United States challenged the trial court’s decision granting Canal’s post-verdict motion for judgment of acquittal for lack of proper venue in the government's prosecution of a charge of willful failure to "immediately notify" the Coast Guard of a "hazardous condition" aboard a vessel, a violation of 33 U.S.C. §1232(b)(1) and 33 C.F.R. §160.215. The appellate court ruled that the offense of failing to notify the Coast Guard continued until proper notification was given. Since the barge traveled through several federal districts prior to the notification, defendant was subject to prosecution in any of those districts. In reversing the district court's decision, the appellate court held that venue was proper because Canal’s violation was a continuing offense under 18 U.S.C. §3237(a). The court reversed the district court's decision and remanded. (6th Cir., January 7, 2011) 2011 U.S. App. LEXIS 460; 2011 FED App. 0007P
EFT MUST BE RELEASED IF FINAL JUDGMENT NOT EXECUTED IN TIME
EITZEN BULK A/S V. ASHAPURA MINECHEM, LTD., ET AL.
Circuit Court Opinion
In this case, Ashapura Minechem, Ltd. appealed from a district court order denying its motion to vacate maritime attachments of electronic fund transfers ("EFTs") entered pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Rule B"). Fed. R. Civ. P. Supp. R. B, arguing that the Second Circuit had previously held that EFTs are not properly attachable under Rule B, citing Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009). In Jaldhi, the court held that EFTs were not properly attachable under Rule B, and that the holding applied retroactively to all cases open on direct review. In the instant case, the district court concluded that EFT's attached pre-Jaldhi had to be released where a creditor obtained a final judgment but had not executed it against the attached funds that were being retained by banks in suspense accounts pursuant to Rule B attachments. The appellate court held that EFTs attached pre-Jaldhi must be released where the plaintiff obtained a final judgment but has not executed it against the attached funds that are being retained by banks in suspense accounts pursuant to Rule B attachments. The attachment of EFTs between defendant and third parties was invalid under the rule announced in Jaldhi. Because the judgment against defendant was not executed against the funds, its finality did nothing to alter the legal basis of plaintiff's retention of the funds in the suspense accounts. So far as the equities between the parties favoring plaintiff were concerned, the court had specifically forbidden resort to equitable considerations in addressing motions to vacate pre-Jaldhi attachment orders. The district court was obligated, pursuant to Jaldhi and Hawknet, to vacate the attachment order. The appellate court vacated the district court's order denying defendant's motion to vacate the Rule B attachment and remanded with instructions to release those funds. (2nd Cir, February 15, 2011) 2011 U.S. App. LEXIS 2922
APPELLATE COURT HOLDS ARBITRATION AGREEMENT IS ENFORCEABLE
RODRIGUES V. ROYAL CARIBBEAN CRUISES LTD.
Circuit Court Opinion
Arcadian Rodrigues allegedly sustained injuries while employed on Royal Caribbean Cruises, Ltd’s vessel. Rodrigues claimed that Royal Caribbean requested him to move two cabin beds in contravention with company policy and put him on luggage detail so that he handled heavy overweight bags. Rodrigues claimed that he suffered a back injury as a result of performing one or both of these activities. Rodrigues, a citizen of India, filed suit against Royal Caribbean in state court, asserting claims under the Jones Act and general maritime law. Royal Caribbean removed the case to federal court and requested the court to enforce the arbitration agreement that was part of its collective bargaining agreement (CBA). The court granted Royal Caribbean’s motion and Rodrigues appealed the district court’s judgment dismissing his civil action and requiring that he proceed to arbitrate his claims against Royal Caribbean. On appeal, Royal Caribbean argued that the court should compel arbitration because (i) the arbitration provision contained in the CBA is binding as all jurisdiction prerequisites have been satisfied, and (ii) Rodrigues waived any challenge to arbitration by invoking the arbitration process. Rodrigues argued that the arbitration agreement was unenforceable as void against public policy because it deprived him of his statutory rights under the Jones Act. As an initial matter, the court determined that it had jurisdiction to determine the enforceability of the arbitration provision in the case, as Royal Caribbean as removal of the case to federal court was proper. The court rejected Rodrigues’s argument that the removal was improper because the arbitration provision did not specifically state that Jones Act claims and Seaman Wages claims fall within its scope, holding that the arbitration provision involved in the case extended to any dispute. Turning to the enforceability of the arbitration provision, the court rejected Rodrigues’s argument that he would be precluded from pursuing his statutory remedy under the Jones Act, relying on the Eleventh Circuit’s recent decision Thomas. The court pointed out that, unlike the agreement at issue in Thomas, the arbitration provision applicable to Rodrigues did not contain a choice of law provision. Thus, there was a possibility that U.S. law will be applied and that there will be a subsequent opportunity for review. Accordingly, the court held that the arbitration provision was not unenforceable for the reasons stated in Thomas. The court also rejected Rodrigues’s argument that the arbitration provision should be deemed unenforceable because there is a disparity in the parties’ bargaining power, holding that Rodrigues failed to establish that such an affirmative defense exists under the Convention. The court granted Royal Caribbean’s motion compelling arbitration and denied Rodrigues’s motion for remand. (11th Cir, February 15, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 2792
VACUUM SUPPLIER NEGLIGENCE AND SEAMAN SUCKS UP THE MONEY
NICHE OILFIELD SERVICES, LLC V. CARTER
Appellate Court Opinion
John Carter, Jr. was allegedly injured while cleaning a vessel in navigable waters. Carter subsequently underwent surgery and received other medical treatment for injuries he attributed to falling from the ladder inside the tank after losing consciousness. Southern Tank Specialists was hired to clean a vessel owned and employed Carter as part of its five-man cleaning crew. Southern Tank hired Niche Oilfield Services, LLC to provide a vacuum truck for use in cleaning the vessel. The incident occurred after rain began falling during the cleaning operation and a tarp was draped over the manhole. Carter allegedly lost consciousness when the tarp was sucked into the manhole while Carter was using the vacuum, cutting off Carter's air supply as the vacuum simultaneously sucked oxygen from the tank. A jury attributed 80 percent of the injury-causing negligence to Niche, 15 percent to Southern Tank, and the remainder to Tidewater. The jury awarded $810,000 in damages encompassing awards for past and future medical care, pain and mental anguish, lost earning capacity, and physical impairment. Niche challenged the final judgment of the of the trial court that was entered in favor of Carter, contending the jury relied on inadmissible hearsay and that the evidence was legally and factually insufficient to support the jury's verdict. Niche also contended that a new trial was warranted based on the cumulative effect of the erroneous admission of hearsay statements. The appellate court held that the evidence was sufficient to support the jury's negligence finding because hearsay evidence tending to establish that Niche’s truck driver left his post was admitted repeatedly without objection during the testimony of the crew member, his brother and co-worker, and his employer's regional manager. The appellate court also concluded that the trial court did not err by denying Niche’s request to apply a dollar-for-dollar credit under Texas law based on a pre-trial settlement and instead applying general maritime law because: (1) Carter sufficiently invoked maritime law in the trial court; (2) the tort at issue occurred on navigable waters; (3) the general features of the type of incident encompassed an injury to a worker while maintaining a vessel in navigable waters; and (4) the repair and maintenance of a vessel on navigable waters was a traditional maritime activity and providing compensation for shipboard injuries was a traditional function of the admiralty laws. The judgment was affirmed. (Tex. 14th App, February 10, 2011) 2011 Tex. App. LEXIS 937
APPELLATE COURT TOLLS ABANDONMENT PERIOD AND REVERSES DISMISSAL
HINDS V. GLOBAL INTERNATIONAL MARINE, INC.
Appellate Court Opinion
Mickel James Hinds filed a petition for damages on May 28, 2004 alleging that he severely injured his neck, shoulder, and arm on June 3, 2001 while he was employed as a Jones Act seaman aboard a vessel owned and/or operated by Global International Marine, Inc. Global responded by filing the peremptory exception of prescription and, alternatively, a motion to dismiss the action pursuant to LSA-C.C.P. art. 123(B). The exception and motion were originally set for hearing, but then continued and reset for a date and time convenient to the court. Hinds filed a second unopposed motion to continue, again requesting that the matter be continued and reset for a date and time convenient to the court. The motion remained pending with the court for nearly three years, until the proposed order was marked "MOOT," returned unsigned to the Clerk of Court, and filed. After Hinds retained substitute counsel and reopened his case, Global filed a motion to have the action deemed abandoned for Hinds’ failure to take any step in its prosecution for more than three years. A hearing was held and the trial court dismissed the suit as abandoned. Hinds appealed the dismissal of his lawsuit. The appellate court initially noted that in order to prevent abandonment, LSA-C.C.P. art. 561 imposes three requirements on a party. First, a party must take some "step" towards prosecution of the lawsuit. A "step" is either a formal action before the court that is intended to hasten the suit towards judgment or the taking of formal discovery. Second, the "step" must be taken in the court where the suit is pending and, except for formal discovery, must appear in the suit record. Third, the "step" must be taken within the legislatively prescribed time period. The appellate court held that Hinds’ motion to continue and request that the matter be reset, with accompanying order, was a "step" in the prosecution of his suit. While the appellate court acknowledged more than three years passed between the date of Hinds’ next motion to reset, without any "steps" being taken, it expressed concern over the fact that Hinds’ request to reset the hearing remained pending before the court unanswered. The court framed the issue before it as whether Hinds should be penalized for that period of time. The court observed that Hinds made several requests that Global’s exceptions be reset for hearing. While the court considered his second request, Hinds continued conducting discovery and enrolled new counsel, both actions that are inconsistent with the intent to abandon the claim. When the court, in effect, denied Hinds’ motion by declaring it "moot", the step initiated by Hinds was completed. Therefore, the appellate court held that the abandonment period began to run anew the day after the court denied Hinds’ motion. Because Hinds took another "step" in the prosecution of his action within three years of the court's action, the appellate court concluded that the matter was not abandoned at the time of Global’s motion to dismiss. The judgment of the trial court was reversed and the matter is remanded to the trial court for further proceedings. (La. App. 1st Cir, February 11, 2011) 2011 La. App. LEXIS 175
DIFFICULT FOR ANY JURY TO ASSIGN AN OBJECTIVE, ECONOMIC NUMBER
SHELBY V. SEARIVER MARITIME INC.
This is an appeal from the final judgment after the jury awarded Mack Shelby $8 million in damages for harm sustained from exposure to petroleum products containing benzene and other hydrocarbons while employed as an able-bodied seaman by SeaRiver Maritime Inc. SeaRiver sought reversal of the judgment on grounds that include insufficient evidence of causation, excessive damages, and attorney misconduct during closing arguments. Shelby worked with petroleum products containing benzene, a known carcinogen, and other hydrocarbons. Benzene is one of a few carcinogens to have a "cumulative effect," whereby doses of benzene continue to accumulate in the human body over time. Shelby brought this action, asserting claims against SeaRiver under the Jones Act and general maritime law, based upon SeaRiver's alleged failure to comply with federal regulations governing benzene exposure levels, to warn him of the health risks of exposure to benzene and other hydrocarbons, and to provide him with appropriate protective equipment to abate these risks. Shelby alleged that, because of these failures, he was over-exposed to benzene and other hydrocarbons on SeaRiver vessels, leading to the loss of his right kidney and other related health problems. Following trial, a jury found Shelby’s cancer and related health problems were caused by SeaRiver's failure to provide him a safe place to work and to maintain seaworthy vessels. The jury awarded Shelby a total of $8 million dollars. SeaRiver moved for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the medical expert’s causation opinions lacked foundation and were not supported by substantial evidence that benzene exposure could have caused plaintiff's harm. SeaRiver also argued that the jury's awards for future pain and suffering and future economic loss were not supported by substantial evidence, and that a new trial was required to address the excessive damage awards and the related attorney misconduct. The trial court denied these motions, prompting this timely appeal. The appellate court found that the record reflected that Shelby’s medical expert relied on his extensive professional background in internal medicine, occupational medicine and toxicology, as well as the identified peer-reviewed scientific studies, to opine that benzene exposure can play a causal role in the development of kidney cancer. The fact that other peer-reviewed studies reached contrary conclusions, call for further research, or were conducted under circumstances in certain ways distinguishable from those relied on By Shelby’s medical expert, did not render Shelby’s expert opinion speculative or baseless. Rather, these facts are relevant to the probative weight of the opinion, which remains a matter for the jury rather than the appellate court. Based on the record, the appellate court concluded the trial court properly accepted into evidence Shelby’s medical expert’s opinion that benzene exposure can cause kidney cancer. The appellate court also found that the record, considered as a whole, provided a reasonable basis for the jury's finding that SeaRiver's negligence in facilitating or failing to prevent Shelby’s exposure to harmful levels of benzene and other hydrocarbons during his 17 years of handling petroleum products and other chemicals on SeaRiver vessels played some part, however small, in his kidney cancer and related harm. Finally, the appellate court rejected SeaRiver’s challenge to the damages awarded and charges of attorney misconduct. The court found no evidence the trial court lacked firm and even-handed control over the proceedings, or that the overall atmosphere of trial was tainted with prejudice due to counsel's conduct. Rather, the record merely reflected aggressive litigation by both sides over what were undoubtedly complex issues. The court noted that while it is no doubt difficult for any jury to assign an objective, economic number as compensation for a person's subjective pain, anxiety and discomfort, it found nothing in the record to indicate, as a matter of law, that the jury based its award (which was less than Shelby’s counsel requested) on anything other than the evidence before it. The trial court’s judgment was affirmed. (Ca. 1st App., February 18, 2011, UNPUBLISHED) 2011 Cal. App. Unpub. LEXIS 1230
QUESTIONS OF FACT AS TO WHETHER SEAMAN DESERTED HIS VESSEL (CONT.)
ATLANTIC SOUNDING COMPANY, INC. V. VICKERS, ET AL.
Jimmie Vickers was a dredge tender operator for Atlantic Sounding Company, Inc., when he allegedly sustained a shoulder injury by falling against the console or steering wheel (depending upon which version of his story you want to believe) of the boat he was operating. After Vickers deserted his vessel, avoided the post-accident substance testing, and Atlantic Sounding completed its investigation, the employer filed a declaratory judgment action, asking the court to determine whether Vickers was injured as he claimed, whether Vickers reached maximum medical improvement, whether Vickers willfully deserted his vessel without a justifiable reason, and whether he was not entitled to maintenance and cure under admiralty law. Vickers filed his Answer and asserted a Counterclaim for Jones Act negligence, unseaworthiness, and punitive damages for Atlantic’s Sounding’s failure to pay maintenance and cure. Vickers then moved for partial summary judgment on the grounds that there are no material facts in dispute to contradict his status as a Jones Act seaman. Thus, as a matter of law, he contended that he was entitled to maintenance and cure for the injuries he allegedly suffered while operating the tender boat for Atlantic Sounding. The court concluded that material fact questions remain as to whether Vickers was a Jones Act seaman at the relevant times and whether Atlantic Sounding properly terminated maintenance and cure payments to Vickers following the accident and denied summary judgment. [see July 2010 Longshore Update] Prior to his bench trial, counsel for Vickers withdrew and Vickers, proceeding pro se, moved to dismiss his Jones Act and unseaworthiness claims. Vickers retained his claim for maintenance and cure and his request for sanctions against Atlantic Sounding. After considering all the evidence in the case, as well as the arguments of the parties and demeanor of the witnesses, the court found that despite Vickers admission that he had not incurred any living expenses associated with his injury, Atlantic Sounding had nonetheless paid Vickers $4,500 in maintenance and $26,417 in cure up until the point when Vickers attained maximum cure. The court also found that Vickers failure to complete prescribed physical therapy amounted to willful misconduct, constituting an abandonment of treatment, precluding any further maintenance and cure. The court also found the Vicker’s failed to accurately disclosed his medical history, an act which could itself be a bar to maintenance and cure. The court held that the facts and law supported the conclusion that Atlantic Sounding was entitled to judgment as a matter of law. Atlantic Sounding’s motion to dismiss Vickers’ counterclaim for maintenance, cure and sanctions was granted. (USDC SDMS, February 25, 2011) 1:09-cv-00346
Update Note: Congratulations to Richard Salloum, of Franke & Salloum in Gulfport, MS on an excellent defense verdict. Most of my readers know how difficult it can be to get a total defense verdict when you are dealing with a pro se claimant. Only Richard Salloum, with his charismatic demeanor and excellent litigation skills, pulls off a coup like this one. Thanks, Richard.
SEAMAN FAILS TO MEET HIS BURDEN THAT AN ALLEGED INJURY OCCURRED
ATLANTIC SOUNDING CO., INC. V. WILLIAMS
Atlantic Sounding Company, Inc. employed Demond Williams as a deckhand and member of the crew of its dredge. On the date of Williams’ alleged injury the cutterhead of the dredge struck a
20” gas pipeline, causing an explosion. Williams continued to work for a week following the date of the explosion, until he regular rotation was complete, without ever completing an injury report or complaining about an injury. Williams deserted the vessel by not timely reporting for duty following his time off. Atlantic Sounding received notice via letter from Williams’ counsel that he had been injured and was seeking medical evaluation, and making demand for maintenance and cure. Nearly two weeks after the explosion, Williams made a one time visit to a hospital emergency room complaining of headaches and neck pain. Williams was later seen by a doctor his attorney sent him to, who diagnosed a cerebral concussion and a cervical injury based upon a story Williams gave the doctor about an alleged fall from a ladder on one of the boats at the scene of the explosion. Following its investigation of Williams’ allegations, Atlantic Sounding filed a motion with the court seeking a declaratory judgment that it was not obligated to provide maintenance and cure to Williams. At trial all witnesses, with the exception of Williams, testified that Williams never reported that he had been involved in any personal accident, never requested medical treatment, and did not complain of headaches after the explosion. Even Williams admitted that he had failed to report the accident. The court noted that there were glaring inconsistencies between Williams’ trial testimony and his deposition testimony. Atlantic Sounding’s surveillance also contradicted Williams’ deposition testimony respecting physical functions that he testified he could not perform. Given these facts and the conflicting testimony, the court found that it was unable to conclude that Williams was injured during his service to the ship. The court found that Williams failed to meet his burden of proving not only that a disability occurred (which the lack of reporting and surveillance indicated was doubtful), but also that he was in the service of the vessel when such occurred. Moreover, the court found the divergence of Williams’ testimony from all others on the scene created significant doubt as to Williams’ recall of the incident. Thus, based upon the entire record, the court refused to conclude that Williams was entitled to maintenance and cure. The court entered judgment in favor of Atlantic Sounding and against Williams, granting declaratory relief that no maintenance and cure was owed. (USDC EDLA, February 24, 2011) 2:10-cv-00890
Updater Note: Congratulations to Matt Popp of Waits, Emmett & Popp on another fine win. Although some may ascribe this victory to a totally unbelievable plaintiff and the jurist we were lucky enough to draw, I personally know it was the result of good preparation and excellent litigation skills.
ROUGH SEAS AND IMPERFECT NON-SKID RAISE QUESTIONS OF FACT FOR FALLON
DAFFERN V. CHERAMIE MARINE, LLC
Chad Daffern allegedly sustained injuries while employed as a seaman by Cheramie Marine, LLC onboard a Cheramie utility vessel. Daffern claimed that amid severe weather and rough sea conditions, as he was climbing the stairway connecting the deck and the wheelhouse, he was suddenly thrown from the stairway, causing him to fall to the deck and to sustain his alleged injuries. Daffern filed a seaman’s complaint asserting negligence and unseaworthiness under the Jones Act and general maritime law. Cheramie moved for summary judgment, arguing that both the Jones Act and the unseaworthiness claims fail as a matter of law. In support of that contention, Cheramie pointed to Daffern’s deposition testimony, which indicated that Daffern could not even remember the details regarding his fall from the stairway, including whether he had "three point contact" at the time of his fall. Daffern opposed the motion noting that there was evidence that the acting first captain and the second captain of the vessel knew that the rough sea conditions rendered it unsafe for the vessel to remain in the area, but that a decision was made not to move the vessel to shore or to shallow waters. Daffern pointed to testimony that the second captain found that the seas were roughly 10 or 11 feet and informed Cheramie’s home office that it was dangerous for the vessel to remain at its location. Yet, he was told by the home office to keep the vessel out in the field. With respect to the vessel's alleged unseaworthiness, Daffern argued that the stairway lacked sufficient non-skid surfacing. The court held that Daffern had adduced sufficient evidence to show that there is a genuine issue of fact as to whether Cheramie was negligent and whether that negligence caused Daffern injuries. When viewed in the light most favorable to Daffern, the court concluded that the evidence could support the finding that Cheramie was negligent, since negligence can be found in the decision to keep the vessel out in the field despite the rough sea conditions and despite the understanding that those sea conditions made it unsafe for the vessel to remain at its location. Although the court acknowledged that there was clear evidence of contributory negligent on the part of Daffern, the court held that under the circumstances, Cheramie’s motion for summary judgment with respect to Daffern’s Jones Act claim must be denied. The court also found that the preliminary expert report of Daffern’s liability expert presented sufficient evidence to support the finding that the stairway was unsafe, that this condition rendered the vessel unseaworthy, and that the absence of sufficient non-skid surfacing played a substantial part in causing Daffern to fall from the stairway. Because Daffern adduced sufficient evidence to show that there is a genuine issue of fact as to his claim of unseaworthiness, Cheramie’s motion in respect to unseaworthiness was also denied.
NO “WARD OF THE COURT” REASONABLE DOUBT FOR YOU, SHUCKER
LOVOS V. OCEAN FRESH SEA CLAM, LTD.
Catalina Lovos worked for Ocean Fresh Sea Clam, Ltd. as a clam shucker on a per diem basis. Lovos alleged that, while working aboard an Ocean Fresh vessel, he was struck in the back by a large diameter hose that was used to suck clams off the bottom of the bay and suffered injuries to his back and neck. Lovos brought a seaman’s action against Ocean Fresh under the Jones Act and general maritime law to recover damages for his alleged injuries. Ocean Fresh questioned the validity of the alleged accident and Lovos moved for partial summary judgment pursuant to FRCP 56 on his claim for maintenance and cure. Ocean Fresh opposed the motion, arguing there were genuine issues of material fact concerning whether Lovos was injured while in the ship's service that precluded a grant of partial summary judgment. After reviewing the deposition testimony the court agreed that there was record evidence that called into question whether Lovos was injured by a falling hose or otherwise while working aboard Ocean Fresh’s vessel. Although Lovos reported working with the vessel captain’s son and a mate, both testified that they did not observe any object, including a hose, fall on Lovos. Moreover, Lovos never reported the injury or complained of pain or discomfort on the date of the alleged occurrence and did not seek medical attention until several days later. The vessel captain testified that he had observed and supervised Lovos throughout the day on the date of the alleged hose incident and that Lovos showed no signs of injury or discomfort and there was no record of any hose breaking loose on the date in question. In view of the conflict in the evidentiary record, the court concluded that the question as to whether Lovos was injured while in the service of Ocean Fresh’s vessel raised a material triable issue that could not be resolved on partial summary judgment. Lovos’s motion for partial summary judgment on his maintenance and cure claim was denied.(USDC EDNY, January 26, 2011) 2011 U.S. Dist. LEXIS 8682
STATUTE OF LIMITATIONS NOT TOLLED BY STATE COURT COMPLAINT
FLORES V. COASTAL MARINE EQUIPMENT, INC.
Luis B. Flores filed his lawsuit against Coastal Marine Equipment, Inc. on March 12, 2010, alleging that he was injured on January 26, 2006, by a defective winch while he was working on board Coastal’s vessel. Flores asserted claims for product liability, negligence, negligence per se, misrepresentation, and gross negligence pursuant to the Jones Act, the general maritime law and other applicable state and federal laws. Flores originally sued Coastal in a Texas state court, but that lawsuit was dismissed for lack of personal jurisdiction. Flores claimed that the present lawsuit was filed within thirty days of the dismissal of the state court lawsuit and claimed the statute of limitations should be tolled pursuant to 28 U.S.C. §1367(d). Coastal moved to dismiss pursuant to FRCP 12(b)(6), arguing that Flores’s Complaint was barred by the applicable statutes of limitations. Flores failed to respond to Coastal’s motion. The court initially noted that the three year statute of limitations applied to all of Flores’s causes of action. Further, Flores’s lawsuit was filed over four years after his alleged injury occurred. The only argument Flores advanced in an effort to toll the limitations period concerned 28 U.S.C. § 1367(d). The court found the cited statute inapplicable to claims that are originally filed in state court and subsequently dismissed. Therefore, the court held that Section 1367(d) did not toll the limitations periods applicable to Flores’s lawsuit. Since the limitations periods applicable to Flores' claims had expired, Flores’s lawsuit against Coastal was dismissed. (USDC SDMS, February 3, 2011) 2011 U.S. Dist. LEXIS 10859
LIMITATION CLAIM PROHIBITED BY ROBINS DRY DOCK, BUT . . .
IN RE: PRIDE OFFSHORE, INC.
This maritime dispute arose out of damage allegedly caused when a Pride Offshore, Inc. jack-up rig detached from its moorings during Hurricane Ike. Pride filed a complaint in exoneration or alternatively for limitation of liability, and Century Exploration New Orleans, Inc. filed a claim. Century alleged that part of the wreckage from Pride Offshore’s jack-up rig struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Parts of the jack-up rig wreckage had settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPC). Century had property interests in one such pipeline and contributed to its repairs. Century claimed approximately $21 million in damages caused solely by, and wholly due to, the unseaworthiness of Pride Offshore’s jack-up rig, the negligence of her master and crew, and the negligence of her owners and operators. Pride Offshore moved for summary judgment, arguing that the economic-loss rule precludes Century’s claim. Century responded with a different theory and asked for leave to amend to add allegations of recklessness and intentional misconduct. Pride Offshore replied, arguing that the court should grant its motion for summary judgment and deny Century's motion to amend as futile. Pride Offshore argued that summary judgment is appropriate for two reasons. The first is that Century’s amended claim is insufficient because it fails to allege that Pride Offshore knew of Century’s contract with TGPC. The second is that Century lacked evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. Pride Offshore argued that there is no exception to the Robins Dry Dock rule for intentional or reckless conduct. Century argued that Pride Offshore intentionally placed a patently inadequate rig on the sea floor, knowing that it would not withstand hurricane force conditions and would not remain on site. Because Century had effectively sought leave to amend without filing a proposed amended complaint, the court found it difficult to determine whether Century proposed to allege that Pride Offshore knew of specific contracts between Century and TGPC or that Pride Offshore knew that Century had to have contracts with some pipeline owner. To provide a sufficient basis to rule on the futility claim, the court granted Century leave to file an amended complaint, noting that the allegations in an amended claim would enable Pride Offshore to clarify the basis for its motion to dismiss and enable the court to rule whether the allegations are sufficient. The motion for summary judgment based on the adequacy of the pleadings was granted, with leave to amend. Since Century had acknowledged that it had no proprietary interest in the pipeline, the court concluded that its contribution to the repair costs did not raise a fact issue as to whether it has a negligence claim against Pride Offshore seeking to recover such payments. The granted Pride Offshore’s motion for summary judgment based on the absence of a proprietary interest in the damaged pipeline. (USDC SDTX, February 2, 2011) 2011 U.S. Dist. LEXIS 10012
TRUMP DOESN’T ALWAYS WIN (CONT.)
RODRIGUEZ V. TRUMP CASINO
Catherine Rodriguez, a dealer on a gaming boat owned by Trump Casino, allegedly sustained injuries as she was walking through the employee cafeteria. Rodriguez allegedly fell and claimed the fall originated from something sticky or tacky on a floor mat which caused her to twist her ankle and fall over. The cafeteria is in a land-based pavilion located between the Trump vessel and the Majestic Star Casino, another gaming vessel, and is cleaned, decorated, and managed by Buffington Harbor LLC. At the time of the injury, Indiana law prohibited a casino vessel from being moored to the dock on a permanent basis. Rodriguez sought relief under the Jones Act and the general maritime law. maritime personal injury doctrines of maintenance and cure and unseaworthiness. Trump filed a motion for summary judgment that the court granted in part and denied in part [see September 2009 Longshore Update]. In denying Trump's motion on the Jones Act claim, the court found, in relevant part, that there was no way to determine whether Buffington Harbor or any of its employees had notice of the floor's condition. Because notice, either actual or constructive, is an essential element that Rodriguez must prove to succeed on her claim, Trump asked the court to reconsider its earlier decision, arguing that the court made an error of law by placing the burden of proof on the wrong party. Rodriguez moved for summary judgment on the sole issue of whether she was within the scope of her employment at the time of her injury. The court denied the motion for reconsideration, noting that Trump misconstrued the court's original holding. The court pointed out that it was not holding that the record was devoid of evidence to support Rodriguez's position that Trump had constructive notice of the condition of the cafeteria. Rather, the court was simply stating that it could not determine as a matter of law from the facts before it whether Trump did or did not receive notice or, more appropriately put, the court was stating that a genuine issue of material fact existed. Turning to Rodriguez's motion for summary judgment, the court noted that Rodriguez was not traversing Buffington Harbor's property for the purpose of accessing the parking lot at the time she was injured, nor was she on her employer's premises fulfilling her job duties. Rodriguez's actions were more attenuated from her employment than in the cases holding that the employee was within the scope of his employment as a matter of law. Rodriguez had clocked out, was off of her employer's premises, and was having a drink at Buffington Harbor at the time of the incident. While her physical and temporal proximity to her employment created a triable issue of material fact, it did not, as a matter of law, require the court to conclude that she was within the scope of her employment. Rodriguez’s motion for summary judgment was denied. (USDC NDIN, February 4, 2010) 2011 U.S. Dist. LEXIS 11346
SHAPE AND TYPE OF LIGHTING NOT MATERIAL IN EXONERATING BOAT OWNER
IN RE: GORE MARINE CORPORATION
A dredge owned by Great Lakes Dredge & Dock Company, LLC (GLDD), completed its work for a beach renourishment project and was in the process of transporting necessary equipment to its location. Two such pieces of necessary equipment were a crane barge and approximately 1,100 - 1,800 feet of dredge pipe which had been involved in the beach renourishment project. Because of anticipated bad weather, this equipment was anchored beyond the "demarcation line" by the lead tug, owned and operated by Gore Marine. At the appropriate time, the proper deck lights on the tug were turned on and the tug captain tightened the pipeline and took the responsibility to check the lights on the pipeline. Another tug, owned and operated by Triple S Marine, was attached to the opposite end of the pipeline and that is where the tugs and equipment were staged for the remainder of the evening. Donna Skaggs and her friend John Gillen, aboard a 24-foot Boston Whaler equipped with twin 225 horsepower Yamaha outboard motors, were returning from a fishing trip and allided with the pipeline that evening. The impact of the allision propelled Ms. Skaggs forward towards the cabin and Mr. Gillen into the water. Mr. Gillen estimates that he was in the water for about fifteen minutes as he swam along the dredge pipeline towards the crane barge. Although both Ms. Skaggs and Mr. Gillen reported that they could see no visible lights on the pipeline, the Coast Guard report indicated the pipeline was well lit. Following the incident in question, Gore Marine filed a Complaint for Exoneration From or Limitation of Liability. In due course, claims were filed by Skaggs, GLD&D and Triple S Marine. The court initially found that Gore Marine’s tug was a vessel at anchor at a temporary location in the open water, and was not in a channel, near a channel, or in an area in which overnight anchoring was prohibited. Since the case involved an allision, under the Oregon Rule there was a rebuttable presumption that the fishing vessel was at fault in the allision. The court rejected most of Skaggs’ allegedly negligent acts or violations by Gore Marine, intended to rebut the Oregon Rule presumption and to establish her entitlement to the Pennsylvania Rule presumption. However, the court did find that COLREGS Rule 24(g) applied and, while the pipeline was well lit, it was not specifically compliant with Rule 24(g). Therefore, the court ruled that Skaggs had rebutted the presumption in the Oregon Rule that her fishing vessel was at fault. Because of the Rule 24(g) violation, the Pennsylvania Rule provided for a presumption that Gore Marine’s tug was at least a contributory cause of the allision. However, the court found that Skaggs fishing vessel also committed two primary violations which brought it within the Pennsylvania Rule. Since both towing vessel and the pipeline were well lit, and at the very least the fishing vessel violated her duties regarding speed and course given the uncertainty about the situation she encountered, the court held that Skaggs’ vessel violated Rules 6 and 7, considering the totality of the circumstances. When both vessels involved in an allision are operating in violation of statutes designed to prevent such mishaps, the Pennsylvania rule requires a finding find that the statutory fault of both vessels contributed to the accident, unless the court finds that the fault of either could not have been a cause of the allision. The court found that the lack of the diamond shapes and the lack of all-round white non-blinking lights on the pipeline could not have been the cause of the allision. The court held that the accident was caused by Skaggs's failure to see the lights, not because of the shape or color of the lights. Accordingly, the court found that shape, color, and flashing of the lights on the pipeline could not have contributed to the allision. Judgment of exoneration was entered in favor of Gore Marine. (USDC MDFL, February 10, 2011) 2011 U.S. Dist. LEXIS 13305
FOREIGN SEAMAN EXCLUDED FROM JONES ACT COVERAGE BY 46 U.S.C. §30105
COSTINEL V. TIDEWATER, INC. ET AL.
Olaru Costinel, a Romanian citizen, entered into a contract with EMCS Limited to work aboard a vessel owned by T. Benetee, L.L.C. Costinel’s contract with EMCS calls for the application of the law of the Isle of Man and for jurisdiction in the courts of the Isle of Man to be applicable to all disputes. Costinel filed a complaint for damages against Tidewater Inc. and T. Benetee, pursuant to the Jones Act and alleging that he was employed as a seaman by Tidewater, Inc. and that he worked aboard a T. Benetee vessel in Nigeria, when he contracted malaria and suffered permanent paralysis in his left arm and his lower body. Costinel argued that Tidewater is liable to him under the Jones Act and under the general maritime law doctrine of unseaworthiness. He further asserted claims for punitive damages and maintenance and cure. Tidewater filed its answer and defenses, including the Jones Act exclusion and forum non conveniens defenses. Tidewater and T. Benetee argued that Costinel’s claims should be dismissed under the Jones Act Exclusion, 46 U.S.C. §30105, which restricts recovery by non-citizens and non-resident aliens for incidents in waters of other countries. Costinel did not dispute that his case falls under the Jones Act exclusion at least as to part 30105(b); instead, he chose to attack Tidewater’s position by arguing that his case qualifies for an exception to the exclusion found in §30105(c). Section 30105(c) provides for the non-application of §30105(b) if Costinel can show that a remedy is not available under the laws of either Nigeria, the site of the injury, or Romania, his country of citizenship. Tidewater and T. Benetee assert that Costinel failed to sustain his burden of showing that no adequate remedies are available to him under the laws of Nigeria or Romania such that the Jones Act exclusion would not apply. The court found that the defendants had established that Costinel is a non-citizen; the injury occurred within the territorial waters or waters overlaying the continental shelf of Nigeria; and Costinel was employed at the time of the incident by a person engaged in the exploration, development, or production of offshore mineral or energy resources, as required by the statute. Costinel failed to meet his burden of showing the Jones Act exclusion does not apply because no remedy is available under the laws of Nigeria or Romania. Accordingly, the court held that Costinel could not meet his burden to prove the exception to the Jones Act exclusion. As to Costinel’s remaining causes of action, the court denied the defendants’ forum non conveniens motion, holding that the public interest factors weighed in favor of Costinel’s choice of forum, noting that Louisiana and its citizens have a strong interest in policing the behavior of its corporations and in seeing that Louisiana corporations treat their employees fairly. Further, the court concluded that the forum is the most convenient for the parties, as well as the public. The court granted defendants’ motion for summary judgment on Costinel Jones Act claim, but denied defendants' motion to dismiss for forum non conveniens. (USDC EDLA, February 3, 2011) 2011 U.S. Dist. LEXIS 10434
COURT APPLIES MARITIME LAW TO MESOTHELIOMA CLAIM
SWEENEY V. SABERHAGEN HOLDINGS, INC., ET AL.
Leo H. Sweeney filed this asbestos-related personal injury action in state court, asserting claims against multiple parties including Crane Co., a valve manufacturer. The matter was removed to federal court and then transferred to the Eastern District of Pennsylvania to be included in the multi-district Asbestos Liability Litigation. Sweeney alleged that he developed mesothelioma as a result of occupational exposure to asbestos-containing products while working on various naval vessels and at commercial shipyards between 1941 and 1978. With regard to Crane in particular, Sweeney claimed that he was exposed to asbestos-containing packing used in conjunction with Crane valves when he performed maintenance and repair on those valves during his service onboard various naval vessels between 1941 and 1956. The court initially noted that Sweeney had failed to produce any evidence indicating that Crane manufactured or distributed asbestos-containing replacement parts for its valves. And, while his testimony established exposure from the packing of Crane valves, Sweeney made clear that he had never, in his entire career, installed a new valve. He could not recall whether the packing was dry or lubricated, or whether it contained asbestos. Most importantly, he was unable to identify the manufacturer of these particular valves. The expert opinions of Sweeney’s industrial hygienists were also of no value to Sweeney on the question of product identification. Crane moved for summary judgment on two grounds, asserting: (1) that Sweeney could not demonstrate sufficient exposure to Crane’s products, and (2) that any exposure Sweeney can demonstrate was due to asbestos components that were replacement parts manufactured by other companies for which Crane is not legally responsible. Crane also raised a choice of law question, arguing that maritime law should apply as the alleged tort occurred on the navigable waters and the activity bore a substantial relationship to traditional maritime activity. Sweeney countered that the maritime location test is not satisfied in that "the alleged tortuous act in this case is Crane's design, manufacture, and/or distribution of a defective and inherently dangerous product," and Sweeney’s mesothelioma manifested while he was on land. The court rejected these arguments, noting that Sweeney failed to provide any legal support for the proposition that either of these events, rather than the location of Sweeney’s exposure, determines where the tort was committed for purposes of the location test. Additionally, the court noted that simply designing and manufacturing valves, even ones that contain asbestos internal parts, is not tortuous conduct unless and until a particular plaintiff is exposed to that asbestos - until that time, no tort has been committed. Additionally, due to the long latency period of asbestos-related diseases, the location of the plaintiff when the disease manifests is a matter of pure chance, and is not an appropriate focus for a jurisdictional test. Therefore, the court concluded that maritime law governed Sweeney’s action. In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, that he was exposed to the defendant's product, and the product was a substantial factor in causing the injury he suffered. Accordingly, a mere "minimal exposure" to a defendant's product not sufficient to establish causation. Additionally, under maritime law a defendant is only legally responsible for component parts which it either manufactured or distributed. Accordingly, Crane could not be held legally responsible for replacement parts which it neither manufactured nor distributed. The court held that maritime law applied to this action and that Sweeney’s evidence was insufficient to survive summary judgment under that standard, in that he could not establish any threshold exposure to asbestos-containing parts manufactured or distributed by Crane. Rather, the evidence established that any asbestos-containing parts of Crane valves to which Plaintiff may have been exposed would have been replacement parts manufactured and distributed by companies other than Crane. The court granted Crane’s motion for summary judgment. (USDC EDPA, February 13, 2011) 2011 U.S. Dist. LEXIS 13563
Quotes of the Month . . .“Expect the worst and you won't be disappointed.”--Helen Macinnes
“There is no sense in crying over spilt milk. Why bewail what is done and cannot be recalled?”--Sophocles
“Destiny is not a matter of chance, it is a matter of choice; it is not a thing to be waited for, it is a thing to be achieved.”--William Jennings Bryan
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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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.
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Redistribution permitted with attribution.
Notes From Your Updater - Mike Niss, Longshore Division Director at the U.S. Department of Labor, will retire on February 28, 2011. Mike has served as the Director of the Longshore & Harbor Workers’ Compensation system since 1999, and was appointed to the Senior Executive Service in 2008. He leaves civil service to join his wife, horses, and dogs at their home in New Mexico. I still remember when Mike Niss took over the post of Director from Joe Olympio, who had been shipped off to Y2K never-never land. Mike was a refreshing change and well received by all in the Longshore community. With both John Chamberlain and Mike Niss headed into those enjoyable retirement years, one would think there would be a huge vacuum at National office. But fear not my Longshore friends! Miranda Chiu, currently Branch Chief for Policy and Regulation, will take over as Acting Director of the Longshore Division. Ms. Chiu is extremely well qualified and highly respected in the industry, having worked in the San Francisco Longshore district office as a Claims Examiner, as a paralegal at a major Longshore law firm, and as a claims supervisor in private industry before taking on her duties as Branch Chief in 2002. Ms. Chiu holds a Masters Degree in Comparative Literature, has published a section of The Longshore Textbook, 2nd and 3rd Editions, and has won numerous awards for her work at the Department of Labor. Beside all that hoopla, she is a really nice person. I, for one, look forward to working with Ms. Chiu. On behalf of the Longshore community, I wish both Mike Niss and John Chamberlain a long and enjoyable retirement. I also congratulate Miranda Chiu on her new position and wish her much success in her future endeavors.
The United States Supreme Court has granted the petition for certiorari in the case of Pacific Operations Offshore, LLP v. Valladolid, Docket No. 10-507, on February 22, 2011. The question presented to the court is: When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation? Josh Gillelan represents the respondents in the case.
On January 4, 2011,the Seventh Circuit Court of Appeals denied a rehearing or rehearing en banc in the case of Deering v. National Maintenance & Repair, Inc, 627 F.3d 1039; 2011 U.S. App. LEXIS 620 [see January 2011 Longshore Update]. This was the case in which the 7th Circuit refused to follow the 5th Circuit and held that a shipowner-employer is prohibited from pursuing a claim against its negligent seaman-employee for property damage.
OWCP Fee Schedule Change - Effective 12/05/10, the fee schedule allowance for anesthesia services will be based upon the formula: (Time Units + Base Units) x Conversion Factor. In addition, every anesthesia procedure billed to OWCP must include one of the following modifiers: AA, QY, QK, AD, QX, or QZ. When multiple procedures are performed during a single anesthetic administration, reimbursement is based on the line item representing the most complex procedure.
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. His web site, http://www.johnchamberlainconsulting.com/ , is up and running.
THE TERM “COMPENSATION,” UNDER LHWCA, DOES NOT INCLUDE MEDICAL
WHEELER V. NEWPORT NEWS SHIPBUILDING AND DRY DOCK COMPANY, ET AL
Circuit Court Opinion
BRB Decision
ALJ Decision
Stephanie Wheeler allegedly sustained an injury to both knees while working for Newport News Shipbuilding & Dry Dock Company. She sought and was awarded scheduled permanent partial disability compensation, as well as a period of temporary total disability compensation. Wheeler later sought continuing permanent total disability compensation, which the Newport News contested. Following a new hearing, an ALJ issued an order denying Wheeler's claim for permanent total disability compensation. Wheeler appealed, and the Board affirmed on September 12, 2003. No further appeal was taken from that order, and by that date, Newport News had completed its compensation payments for Wheeler's scheduled permanent partial disability. Following the 2003 BRB decision, Wheeler continued to seek regular medical treatment for her knees, which Newport News authorized and paid. On September 13, 2007, Wheeler submitted a request for modification of her permanent partial disability award, pursuant to Section 22 of the Act, once again seeking total disability benefits as a result of the deteriorating condition of her knees. Wheeler’s request for modification was rejected as untimely by an ALJ because the request was not filed within one year "after the date of the last payment of compensation" or "after the rejection of a claim," as set forth in Section 22. In determining Wheeler's request for modification was untimely, the ALJ expressly rejected Wheeler's argument that the term "compensation" as used in Section 22 of the Act includes the voluntary payment by an employer of a claimant's medical expenses. Wheeler appealed the ALJ's decision to the Board. The opinion and order of the Board affirmed the ALJ's denial of Wheeler's modification request, finding the request was untimely and thus time-barred. Wheeler appealed from the decision of the Benefits Review Board, denying her request for modification as untimely. The Fourth Circuit Court of Appeals concluded that, in view of the lack of any controlling precedent and the lack of the clear inclusion or exclusion of medical benefits as part of compensation in either the definition of "compensation" or the text and structure of §922, the meaning of "compensation" in §922 was ambiguous. The legislative history of §922 reflected Congress's attempt to strike such a balance, and supported the conclusion that "compensation" in §922 did not include payment of medical benefits. The court concluded that the term "compensation" in §922 did not include voluntary payments by an employer for medical services provided to an employee. As such, the payments of such services did not extend the §922 limitations period, and because Wheeler did not file her request for modification within the one year period set forth in §922, it was time-barred. The decision of the Board was affirmed. (4th Cir, February 15, 2011) 2011 U.S. App. LEXIS 2889
Updater Note: The Solicitor (oops, I meant the Director, OWCP) and Greg Camden recently teamed up at the 4th Circuit, in an attempt to destroy one of the last vestiges of repose under the Act, by claiming that making a medical payment to a health care provider in an otherwise time-barred claim, restarts the limitations period under section 22 of the Act. Signaling a close decision, the appellate court asked for additional briefing after oral argument on the issues of legislative history and judicial deference to the Director, and finally decided that, at least under section 22 of the Act, “compensation” does not mean medical payments paid under section 7. The holding in this case appears to apply broadly even to medical expense co-pays and reimbursements. My thanks to Jonathan Walker, of Mason, Mason, Walker & Hedrick, P.C. in Newport News, VA, for sharing this decision and his comments with me.
FORMAL HEARING BEFORE MMI LANDS EMPLOYER CONTINUING TTD AWARD
TETRA TECHNOLOGIES, INC. V. DIRECTOR, OWCP, ET AL. [MCCLENDON]
Circuit Court Opinion
BRB Decision
ALJ Decision
Kevin McClendon allegedly was struck on his head and neck, and knocked unconscious, by a falling wing valve during the course of his employment as an “A” operator/rigger with Tertra Technologies, Inc. McClendon subsequently sought medical treatment for complaints related to his back, neck, and both shoulders. Tetra voluntarily paid LHWCA benefits to McClendon for eight months. Following a formal hearing, the ALJ found that McClendon’s neck, back, and shoulder conditions were causally related to his employment with Tetra. The ALJ also determined that McClendon’s left shoulder condition had reached maximum medical improvement (MMI), but that his back, neck and right shoulder conditions had not, and that McClendon was unable to return to gainful employment. The ALJ awarded McClendon continuing temporary total disability compensation. On appeal to the BRB, Tetra challenged the ALJ’s findings regarding the nature and extent of claimant’s disability, claimant’s entitlement to medical benefits, the calculation of claimant’s average weekly wage, and its liability for an assessment pursuant to Section 14(e) of the Act. The BRB concluded that, based upon the medical evidence, the ALJ rationally found that McClendon had not reached MMI. Accordingly, the Board also affirmed the ALJ’s conclusion that McClendon was entitled to temporary total disability compensation. The Board went on to reject all of Tetra’s remaining challenges and affirmed the ALJ’s findings in all respects. On further appeal, the Fifth Circuit Court of Appeals also rejected Tetra’s arguments, finding no error, and, in a short per curiam decision affirmed essentially for the reasons given by the BRB. (5th Cir, January 31, 2010, UNPUBLISHED) 2011 U.S. App. LEXIS 2018
EMPLOYER FORCED TO PAY APPELLATE COST FOR IMPROPER INTERVENTION
PLASTIC SURGERY ASSOCIATES V. THE NACHER CORPORATION
Appellate Court Opinion
This dispute arose from an alleged work-related injury suffered by a Nacher Corporation employee, Johnathan Goodie. As a part of the Goodie’s medical care, Nacher authorized treatment by a Plastic Surgery Associates (PSA) associate physician. The treatment rendered to Goodie by PSA, as authorized by Nacher and as calculated under the Louisiana workers' compensation schedule, totaled $11,750.17. The payment to PSA for this treatment is the issue in this litigation. Goodie entered into a settlement agreement with Nacher and its insurer, not under the Louisiana Workers' Compensation Act, but pursuant to Section 8(i) of the LHWCA. The settlement, which meticulously detailed Goodie's medical care and purported to satisfy all of his claims for compensation and medical treatment, provides a total settlement amount of $20,356.98 paid directly to Goodie. In breaking down the categories of the settlement, the settlement agreement stated that $5,354.76 of the total amount was for outstanding medical bills, $4,307.67 was for future medical treatment, and $4,300.22 was for legal representation. The Section 8(i) settlement was eventually approved by the District Director. PSA filed a disputed claim for compensation against Nacher, seeking payment of the $11,750.17 owed for Goodie's medical treatment, before the Louisiana Workers’ Compensation Board rather than the LHWCA District Director. Nacher filed its exception of no subject matter jurisdiction and attached a copy of the previously-approved Section 8(i) settlement agreement between Goodie, Nacher, and Nacher’s insurer under the LHWCA. Before PSA filed any response to the exception, the workers’ compensation judge (WCJ) issued a judgment granting the exception and dismissing PSA's claim. PSA appealed the judgment. The appellate court reversed on a technicality, noting that La. Code Civ. P. art. 929(A) provides that declinatory exceptions require a hearing to determine the merits of a declinatory exception when decided in advance of the trial of the case. Noting that the WCJ decided the issue without holding a hearing and giving PSA an opportunity to be heard, the appellate court held that the WCJ's dismissal of PSA's claim was an improper ex parte order. The appellate court vacated the WCJ's judgment and remand the matter so that a hearing may be held to decide the merits of the declinatory exception of no subject matter jurisdiction. The court assessed all costs of the appeal to Nacher and its insurer. (La. App. 3rd Cir, February 2, 2011) 2011 La. App. LEXIS 112
JACK UP RIG ON OCS NOT A VESSEL IN NAVIGATION
BARKER V. HERCULES OFFSHORE, INC., ET AL.
Francis Barker, Jr, a welder employed by Frank's Casing, Inc., which was under contract to Hercules Offshore, Inc, was working on board Hercules' mobile offshore jack-up drilling unit, which at that time was attached to the seabed on the Outer Continental Shelf. Barker sustained his alleged injuries when he and his co-welder and longtime best friend Thomas B. Broussard were attempting to remove the pollution/oil pan in order to run a 60" pipe casing underneath the drilling floor. With Barker watching, the pan on which Broussard was standing fell into the ocean floor about 100 feet below. Broussard managed to hang onto a beam for some time, but then lost his grip. Barker was able to hold onto a beam, but he witnessed Broussard fall into the water, striking a beam on the way. Broussard's body was lifted from the water and flown out by helicopter. Barker asserts that he suffered severe permanent psychological trauma and physical pain and suffering, followed later by a cerebral stroke, which he claims was caused by the injuries he suffered from the accident. Barker brought suit under general maritime law and, alternatively, under §905(b) of the LHWCA and under Texas tort law to the extent it supplements or supplants maritime law, seeking general, special and punitive damages. Hercules removed the suit from state court to federal court. Barker moved to remand to case to state court, arguing that the tort at issue occurred on a vessel (a jack up drilling rig in the Gulf of Mexico off of Galveston, Texas), located on navigable water on the Outer Continental Shelf, and therefore maritime law, not OCSLA, applied to his action against third parties. Urging the court to deny the motion to remand, Hercules contended that the court had original federal subject matter jurisdiction based on OCSLA, that the case was properly removed on the basis of a federal question under OCSLA so there is no requirement of diverse citizenship, and that the Court should deny the motion to remand. Hercules also pointed out that the jack-up rig in dispute, on which the incident at issue took place, is also an OCSLA situs. The court initially noted its disagreement with Barker’s argument that the jack up rig is a vessel that was on navigable waters when the accident occurred so that general maritime law applied. The court found that removal was proper because (1) general maritime law, which if applicable might bar removal if it overlapped with OCSLA law, did not apply and therefore there was no overlap with OCSLA and (2) the court had federal question subject matter jurisdiction over cases and controversies "arising out of or in connection with" any operation involving the "development" of minerals on the OCS under OCSLA, citing 43 U.S.C. §1349(b)(1). Although Barker’s pleadings did not cite OCSLA, the court noted that statute governed the suit because the facts as alleged fall with the statute's jurisdictional grant. The court held that a jack up drilling rig affixed to the seabed of the OCS is considered to be a "device" for "the purpose of drilling oil," providing federal jurisdiction under OCSLA, and not a vessel subject to maritime jurisdiction. Nor did Barker’s claim arise from a traditional maritime activity related to navigation or commerce, but out of activities for developing oil and gas on the OCS. Thus there is no admiralty jurisdiction, and removal of his action was not precluded by overlapping jurisdiction. Barker’s motion to remand was denied. (USDC SDTX, February 1, 2011) 2011 U.S. Dist. LEXIS 9400
LHWCA PRECLUDES SUIT AGAINST FELLOW EMPLOYEE & PREEMPTS STATE LAW
BECNEL, ET AL. V. ANCO INSULATIONS, INC., ET AL.
Carl Becnel, Sr. worked as an electrician for Avondale Industries, Inc, where he was allegedly exposed to asbestos during his career. Becnel’s wife and two sons brought an asbestos products liability action against several defendants, including James O'Donnell, who served as an executive officer for Avondale, alleging that he failed to provide Becnel with a safe working environment at Avondale. Defendants have moved for summary judgment as O'Donnell's insurer, contending that the LHWCA, a federal statute, immunizes O'Donnell from liability insofar as O'Donnell was Becnel's co-employee. The court found that the applicability of the LHWCA to Becnel presented a problem to plaintiffs’' theory of liability because the LHWCA clearly immunizes a party's co-employees from civil liability under §933. Pointing to this provision of law, the moving defendants argued that the LHWCA preempts Louisiana state law to the extent it permits a party to sue his or her co-employee following a work-related injury. After a careful review of the relevant legal principles and the parties' submissions, the court concluded that the LHWCA preempts Louisiana state law insofar as Louisiana law permits certain plaintiffs to recover in negligence against their co-employees. The defendants' motion for summary judgment was granted. (USDC EDPA, January 28, 2011) 2011 U.S. Dist. LEXIS 9920
COURT AWARDS MAINTENANCE WITHOUT FINDING OF SEAMAN STATUS
STODGHILL V. C&M INDUSTRIES, INC. ET AL.
Elgin Stodghill filed a motion in state court seeking a temporary injunction to enjoin C&M Industries, Inc. to make temporary payments of maintenance and cure to him immediately in order to forestall his eviction from his residence and to permit him to continue receiving medical care and treatment for alleged injuries that he sustained while working aboard C&M’s vessel. C&M opposed the motion, arguing that the court could not order payments of maintenance and cure without establishing as a factual matter that Stodghill is a Jones Act seaman rather than a Longshore worker. The court rejected this argument, noting that C&M had cut off payments it had been making to Stodghill under the Longshore Act and had thereafter thwarted his rights to receive them by asserting in those proceedings that Stodghill was a Jones Act seaman rather than a longshoreman. The court observed that C&M had also made maintenance payments to Stodghill, but had cut those payments off as well. The court concluded that C&M was liable to pay him either maintenance or Longshore compensation. In light of C&M’s earlier position that . Stodghill was entitled to maintenance, as revealed by their voluntary payments to him of such amounts, coupled with their contention to the Department of Labor that he was not entitled to Longshore compensation because he was a Jones Act seaman, the court issued its injunction to require that C&M continue to treat him as such; but made no determination as to his status as either a Jones Act seaman or a Longshoreman. The court also found it likely that Stodghill would succeed on the merits and would suffer irreparable harm if no payments are made. C&M was ordered to make maintenance payments to Stodghill in the amount of $811 per week, both retroactively and going forward. effective retroactive to August 15, 2010. Defendants shall be credited with any amounts that have already been paid to Plaintiff. If in any future proceeding in this Court or elsewhere, Plaintiff is determined to be a Longshore worker, any payments owed to him under that statutory compensation scheme shall be credited with all payments made pursuant to this order for maintenance. (Va. Cir. Ct, December 22, 2010, UNPUBLISHED) 2010 Va. Cir. LEXIS 198
Updater Note: Just what we need - another admiralty-challenged judge awarding maintenance at a hugely inflated rate, without making the appropriate finding that the employee even qualifies as a seaman. Try reading the 3rd Circuit’s recent decision in Collick v. Weeks Marine, Inc., Judge Hall. Maybe you’ll learn something!
LHWCA IS OFFSHORE WORKER’S EXCLUSIVE REMEDY
ABRAM V. NABORS OFFSHORE CORPORATION
Ricky Abram worked for Nabors Offshore Corporation, as a roustabout and floor hand, and was allegedly injured while working on a drilling rig attached to the Outer Continental Shelf. Abram filed suit under the Jones Act in state court, but Nabors removed the case to federal under the Outer Continental Shelf Lands Act (OCSLA). Abram moved to remand. After requesting additional briefing on the subject, the court found that Abram was not a seaman under the Jones Act. Following the court’s ruling, Abram renewed his motion for remand, while Nabors moved for summary judgment. Noting its prior ruling that Abram did not qualify as a Jones Act seaman at the time he was injured, the court held that the case was properly removed from the state court on the basis of original jurisdiction under OCSLA. The court found that, because Abram is not a seaman within the meaning of the Jones Act, his exclusive remedy was the LHWCA, as extended by OCSLA. Abram's renewed motion to remand was denied and the court granted Nabors’ Motion for Summary Judgment. (USDC SDTX, February 8, 2011) 2011 U.S. Dist. LEXIS 12001
And on the Admiralty front . . .
5TH CIRCUIT REJECTS PROXIMATE CAUSE STANDARD IN JONES ACT CASE
CLARK V. KELLOGG BROWN & ROOT, LLC
Circuit Court Opinion
Aubrey Clark worked for Brown & Root Marine Operators (“Brown & Root”), a predecessor of Kellogg Brown & Root, L.L.C. (KBR), from 1972 to 1986 as a helper, rigger, and leadman aboard various barges owned by Brown & Root. The district court found that, while working for Brown & Root, Clark was exposed to benzene and used benzene as a solvent to clean his tools, his hands, and his equipment. Clark used benzene, on average, about every other day; however, the number of times he used it varied from day to day and from week to week. Clark was later diagnosed with acute myelogenous leukemia (AML) and filed suit against KBR, alleging that his benzene exposure while working for Brown & Root had caused his AML, and that KBR was liable to him for personal injury under the Jones Act as well as under admiralty theories of maintenance and cure and unseaworthiness. The district court held a three-day bench trial and entered findings of fact and conclusions of law finding KBR liable to Clark under the Jones Act but rejecting all other grounds of liability. Clark died shortly after trial. The district court entered a final judgment, and, pursuant to timely motions to alter or amend the judgment, an amended final judgment awarded relief to Richard Clark, administrator of Clark’s estate, (the “Clark Estate”) and against KBR. KBR timely appealed, asserting that the district court applied the wrong standard of proof and made factual, legal, and evidentiary errors with respect to the question of whether benzene exposure caused Clark’s AML, and erred by improperly applying the “featherweight” causation standard to Clark’s Jones Act claim rather than a “proximate” causation standard. KBR also argued that the district court’s finding of fact that benzene was a specific cause of Clark’s AML was clearly erroneous and that the court abused its discretion in allowing Clark’s expert causation witnesses to testify. In an unpublished decision, the US Court of Appeals for the Fifth Circuit ruled that a seaman is entitled to recovery under the Jones Act if his employer’s negligence played any part, even the slightest, in producing the injury or death for which damages are sought. Although KBR pointed out that the U.S. Supreme Court has granted certiorari in the case of McBride v. CSX Transportation in order to review this very issue, the appellate court nonetheless affirmed, noting that a grant of certiorari does not alter binding precedent. Additionally, the appellate court found no abuse of discretion in the district court’s decision to admit Clark’s expert witnesses’ testimony—notwithstanding its refusal to wholly credit their assessment of the extent of Clark’s benzene exposure—and no clear error in the district court’s finding of specific causation. The judgment of the district court was affirmed. (5th Cir., February 4, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 2354
JAILHOUSE LAWYER’S RICO ACTION IS DISMISSED (CONT)
VICKERS V. WEEKS MARINE, INC., ET AL.
Circuit Court Opinion
Jimmie Vickers, an allegedly injured seaman, formally employed by Atlantic Sounding Co. Inc., filed a lawsuit pro se, alleging that Weeks Marine, Inc. and its wholly-owned subsidiary company, Atlantic Sounding (hereinafter “Weeks”), violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”). Vickers, a “jailhouse lawyer” alleged that Weeks engaged in a pattern of activity designed to manipulate the forums of various lawsuits filed by seamen they employed. Weeks filed a motion to dismiss the complaint, arguing that Vickers had no standing to assert violations under RICO because RICO does not extend to damages resulting from personal injury. The court initially pointed out that RICO creates a civil cause of action for a person injured in his business or property by reason of a violation of 18 U.S.C. § 1962, and that the phrase “injury to business or property” excludes personal injuries. The court concluded that Vickers’ complaint must be dismissed because Vickers failed to allege any damage to his business or property, and had only claimed to be injured economically and physically. Vickers’ complaint contained no allegations of other injuries not related to his alleged personal injury. Because all of Vickers’ alleged injuries are either directly related to, or pecuniary losses resulting from, a personal injury, the court held that he did not have standing to file a RICO claim. Weeks’ motion to dismiss was granted and Vickers’ RICO complaint was dismissed with prejudice. [see May 2010 Longshore Update] Vickers appealed contending that the trial court erred in dismissing his case, because the bodily injury he sustained ultimately caused economic damage to his corporation, Vickers Marine, Inc. In a short per curiam decision, the appellate court initially pointed out that, as there is no recovery under RICO for personal injuries, a plaintiff does not have standing to sue under 18 U.S.C. §1964(c) based on such injuries. The court concluded that any economic injury to Vickers’s corporation was the result of Vickers’s bodily injury. Thus, the district court did not err in dismissing his RICO action for lack of standing. The district court’s judgment was affirmed. (5th Cir, February 25, 2011, UNPUBLISHED)
Updater Note: Congratulations to Matt Popp of Waits, Emmett & Popp in New Orleans on another well-fought victory. Now we’ll just wait for the petition for certiorari.
NEGLIGENT FOR ASKING A DECKHAND TO RETRIEVE A MOORING LINE?
BONIN V. RYAN MARINE SERVICES, INC.
Circuit Court Opinion
This appeal involved a suit brought by Lavern D. Bonin, under the Jones Act and pursuant to general maritime law, against his employer, Ryan Marine Services, Incorporated, for injuries that he allegedly sustained to his left shoulder in the course of his employment. After a bench trial, the district court found in favor of Bonin and awarded him damages of $203,168. On appeal, Ryan Marine challenged the district court's findings of fact as to (1) negligence; (2) causation; and (3) the appropriate damages for Bonin's lost wages. Ryan Marine contended that there is no evidence or expert testimony to support a finding that its vessel captain was negligent. Ryan Marine also argued that even if Bonin or his fellow deckhand were qualified to testify as to whether the vessel captain was negligent, their testimony did not demonstrate negligence. The appellate court disagreed, noting that the record contained evidence that the vessel captain ordered the two other men to retrieve a heavy, waterlogged mooring line under dangerous conditions. Ryan Marine further contended that there was no showing of casual relationship between the vessel captain’s actions and Bonin’s injury. The appellate court pointed to the district court’s finding that the captain was negligent in sending the two men out to retrieve the mooring line at all, rather than simply ordering them to cut the mooring line, and that Bonin suffered the injury to his shoulder while attempting to retrieve the line. The appellate court also rejected Ryan Marine's final argument, that the evidence did not support the damages awarded to Bonin. The appellate court found that the district court held that any pre-existing condition that Bonin had was not acute or debilitating, and that this finding was plausible in light of the record as a whole. The appellate court concluded that the district court did not clearly err in its findings as to negligence, causation, or damages and affirmed the judgment in all respects. (5th Cir, February 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 3227
Updater Note: Thank goodness they didn’t publish this atrocity.
FAILURE TO NOTIFY COAST GUARD IS A CONTINUING OFFENSE
UNITED STATES V. CANAL BARGE CO.
Circuit Court Opinion
The US Court of Appeals for the Sixth Circuit ruled that the willful failure to notify the Coast Guard of a hazardous condition on a vessel is a continuing offense for purposes of venue. Canal Barge Co.’s barge was loaded with benzene and was under towage by Canal’s tug. While the barge was on the Mississippi River near St. Louis, it sprang a leak, emitting benzene. The pilot on the towboat instructed deckhands to seal the leak with a bar of soap. When notified by the pilot, the port captain instructed the pilot to apply a temporary epoxy patch. Meanwhile, the barge was taken down the Mississippi River to Cairo and then up the Ohio River toward its intended destination. The epoxy patch failed while the barge was near Louisville, four days after the initial leak. It was then that the Coast Guard was notified for the first time. A three-count indictment filed two years later in the Western District of Kentucky charged Canal Barge, its port captain, tow boat caption and pilot with: (1) conspiracy to violate the Ports and Waterways Safety Act (PWSA); (2) violation of the PWSA; and (3) negligent violation of the Clean Water Act. After a two-week trial, the defendants moved for a judgment of acquittal, arguing that the government had failed to prove that venue was proper in the Western District of Kentucky. The district court reserved ruling on the motion, and the jury returned a guilty verdict on Count 2, but acquitted the defendants of the remaining two counts. After being prosecuted and convicted, Canal again moved for dismissal, contending that the offense was committed, if at all, when the benzene leak initially occurred near St. Louis and could not be tried in any other venue. The district court granted the motion. The United States challenged the trial court’s decision granting Canal’s post-verdict motion for judgment of acquittal for lack of proper venue in the government's prosecution of a charge of willful failure to "immediately notify" the Coast Guard of a "hazardous condition" aboard a vessel, a violation of 33 U.S.C. §1232(b)(1) and 33 C.F.R. §160.215. The appellate court ruled that the offense of failing to notify the Coast Guard continued until proper notification was given. Since the barge traveled through several federal districts prior to the notification, defendant was subject to prosecution in any of those districts. In reversing the district court's decision, the appellate court held that venue was proper because Canal’s violation was a continuing offense under 18 U.S.C. §3237(a). The court reversed the district court's decision and remanded. (6th Cir., January 7, 2011) 2011 U.S. App. LEXIS 460; 2011 FED App. 0007P
EFT MUST BE RELEASED IF FINAL JUDGMENT NOT EXECUTED IN TIME
EITZEN BULK A/S V. ASHAPURA MINECHEM, LTD., ET AL.
Circuit Court Opinion
In this case, Ashapura Minechem, Ltd. appealed from a district court order denying its motion to vacate maritime attachments of electronic fund transfers ("EFTs") entered pursuant to Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions ("Rule B"). Fed. R. Civ. P. Supp. R. B, arguing that the Second Circuit had previously held that EFTs are not properly attachable under Rule B, citing Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009). In Jaldhi, the court held that EFTs were not properly attachable under Rule B, and that the holding applied retroactively to all cases open on direct review. In the instant case, the district court concluded that EFT's attached pre-Jaldhi had to be released where a creditor obtained a final judgment but had not executed it against the attached funds that were being retained by banks in suspense accounts pursuant to Rule B attachments. The appellate court held that EFTs attached pre-Jaldhi must be released where the plaintiff obtained a final judgment but has not executed it against the attached funds that are being retained by banks in suspense accounts pursuant to Rule B attachments. The attachment of EFTs between defendant and third parties was invalid under the rule announced in Jaldhi. Because the judgment against defendant was not executed against the funds, its finality did nothing to alter the legal basis of plaintiff's retention of the funds in the suspense accounts. So far as the equities between the parties favoring plaintiff were concerned, the court had specifically forbidden resort to equitable considerations in addressing motions to vacate pre-Jaldhi attachment orders. The district court was obligated, pursuant to Jaldhi and Hawknet, to vacate the attachment order. The appellate court vacated the district court's order denying defendant's motion to vacate the Rule B attachment and remanded with instructions to release those funds. (2nd Cir, February 15, 2011) 2011 U.S. App. LEXIS 2922
APPELLATE COURT HOLDS ARBITRATION AGREEMENT IS ENFORCEABLE
RODRIGUES V. ROYAL CARIBBEAN CRUISES LTD.
Circuit Court Opinion
Arcadian Rodrigues allegedly sustained injuries while employed on Royal Caribbean Cruises, Ltd’s vessel. Rodrigues claimed that Royal Caribbean requested him to move two cabin beds in contravention with company policy and put him on luggage detail so that he handled heavy overweight bags. Rodrigues claimed that he suffered a back injury as a result of performing one or both of these activities. Rodrigues, a citizen of India, filed suit against Royal Caribbean in state court, asserting claims under the Jones Act and general maritime law. Royal Caribbean removed the case to federal court and requested the court to enforce the arbitration agreement that was part of its collective bargaining agreement (CBA). The court granted Royal Caribbean’s motion and Rodrigues appealed the district court’s judgment dismissing his civil action and requiring that he proceed to arbitrate his claims against Royal Caribbean. On appeal, Royal Caribbean argued that the court should compel arbitration because (i) the arbitration provision contained in the CBA is binding as all jurisdiction prerequisites have been satisfied, and (ii) Rodrigues waived any challenge to arbitration by invoking the arbitration process. Rodrigues argued that the arbitration agreement was unenforceable as void against public policy because it deprived him of his statutory rights under the Jones Act. As an initial matter, the court determined that it had jurisdiction to determine the enforceability of the arbitration provision in the case, as Royal Caribbean as removal of the case to federal court was proper. The court rejected Rodrigues’s argument that the removal was improper because the arbitration provision did not specifically state that Jones Act claims and Seaman Wages claims fall within its scope, holding that the arbitration provision involved in the case extended to any dispute. Turning to the enforceability of the arbitration provision, the court rejected Rodrigues’s argument that he would be precluded from pursuing his statutory remedy under the Jones Act, relying on the Eleventh Circuit’s recent decision Thomas. The court pointed out that, unlike the agreement at issue in Thomas, the arbitration provision applicable to Rodrigues did not contain a choice of law provision. Thus, there was a possibility that U.S. law will be applied and that there will be a subsequent opportunity for review. Accordingly, the court held that the arbitration provision was not unenforceable for the reasons stated in Thomas. The court also rejected Rodrigues’s argument that the arbitration provision should be deemed unenforceable because there is a disparity in the parties’ bargaining power, holding that Rodrigues failed to establish that such an affirmative defense exists under the Convention. The court granted Royal Caribbean’s motion compelling arbitration and denied Rodrigues’s motion for remand. (11th Cir, February 15, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 2792
VACUUM SUPPLIER NEGLIGENCE AND SEAMAN SUCKS UP THE MONEY
NICHE OILFIELD SERVICES, LLC V. CARTER
Appellate Court Opinion
John Carter, Jr. was allegedly injured while cleaning a vessel in navigable waters. Carter subsequently underwent surgery and received other medical treatment for injuries he attributed to falling from the ladder inside the tank after losing consciousness. Southern Tank Specialists was hired to clean a vessel owned and employed Carter as part of its five-man cleaning crew. Southern Tank hired Niche Oilfield Services, LLC to provide a vacuum truck for use in cleaning the vessel. The incident occurred after rain began falling during the cleaning operation and a tarp was draped over the manhole. Carter allegedly lost consciousness when the tarp was sucked into the manhole while Carter was using the vacuum, cutting off Carter's air supply as the vacuum simultaneously sucked oxygen from the tank. A jury attributed 80 percent of the injury-causing negligence to Niche, 15 percent to Southern Tank, and the remainder to Tidewater. The jury awarded $810,000 in damages encompassing awards for past and future medical care, pain and mental anguish, lost earning capacity, and physical impairment. Niche challenged the final judgment of the of the trial court that was entered in favor of Carter, contending the jury relied on inadmissible hearsay and that the evidence was legally and factually insufficient to support the jury's verdict. Niche also contended that a new trial was warranted based on the cumulative effect of the erroneous admission of hearsay statements. The appellate court held that the evidence was sufficient to support the jury's negligence finding because hearsay evidence tending to establish that Niche’s truck driver left his post was admitted repeatedly without objection during the testimony of the crew member, his brother and co-worker, and his employer's regional manager. The appellate court also concluded that the trial court did not err by denying Niche’s request to apply a dollar-for-dollar credit under Texas law based on a pre-trial settlement and instead applying general maritime law because: (1) Carter sufficiently invoked maritime law in the trial court; (2) the tort at issue occurred on navigable waters; (3) the general features of the type of incident encompassed an injury to a worker while maintaining a vessel in navigable waters; and (4) the repair and maintenance of a vessel on navigable waters was a traditional maritime activity and providing compensation for shipboard injuries was a traditional function of the admiralty laws. The judgment was affirmed. (Tex. 14th App, February 10, 2011) 2011 Tex. App. LEXIS 937
APPELLATE COURT TOLLS ABANDONMENT PERIOD AND REVERSES DISMISSAL
HINDS V. GLOBAL INTERNATIONAL MARINE, INC.
Appellate Court Opinion
Mickel James Hinds filed a petition for damages on May 28, 2004 alleging that he severely injured his neck, shoulder, and arm on June 3, 2001 while he was employed as a Jones Act seaman aboard a vessel owned and/or operated by Global International Marine, Inc. Global responded by filing the peremptory exception of prescription and, alternatively, a motion to dismiss the action pursuant to LSA-C.C.P. art. 123(B). The exception and motion were originally set for hearing, but then continued and reset for a date and time convenient to the court. Hinds filed a second unopposed motion to continue, again requesting that the matter be continued and reset for a date and time convenient to the court. The motion remained pending with the court for nearly three years, until the proposed order was marked "MOOT," returned unsigned to the Clerk of Court, and filed. After Hinds retained substitute counsel and reopened his case, Global filed a motion to have the action deemed abandoned for Hinds’ failure to take any step in its prosecution for more than three years. A hearing was held and the trial court dismissed the suit as abandoned. Hinds appealed the dismissal of his lawsuit. The appellate court initially noted that in order to prevent abandonment, LSA-C.C.P. art. 561 imposes three requirements on a party. First, a party must take some "step" towards prosecution of the lawsuit. A "step" is either a formal action before the court that is intended to hasten the suit towards judgment or the taking of formal discovery. Second, the "step" must be taken in the court where the suit is pending and, except for formal discovery, must appear in the suit record. Third, the "step" must be taken within the legislatively prescribed time period. The appellate court held that Hinds’ motion to continue and request that the matter be reset, with accompanying order, was a "step" in the prosecution of his suit. While the appellate court acknowledged more than three years passed between the date of Hinds’ next motion to reset, without any "steps" being taken, it expressed concern over the fact that Hinds’ request to reset the hearing remained pending before the court unanswered. The court framed the issue before it as whether Hinds should be penalized for that period of time. The court observed that Hinds made several requests that Global’s exceptions be reset for hearing. While the court considered his second request, Hinds continued conducting discovery and enrolled new counsel, both actions that are inconsistent with the intent to abandon the claim. When the court, in effect, denied Hinds’ motion by declaring it "moot", the step initiated by Hinds was completed. Therefore, the appellate court held that the abandonment period began to run anew the day after the court denied Hinds’ motion. Because Hinds took another "step" in the prosecution of his action within three years of the court's action, the appellate court concluded that the matter was not abandoned at the time of Global’s motion to dismiss. The judgment of the trial court was reversed and the matter is remanded to the trial court for further proceedings. (La. App. 1st Cir, February 11, 2011) 2011 La. App. LEXIS 175
DIFFICULT FOR ANY JURY TO ASSIGN AN OBJECTIVE, ECONOMIC NUMBER
SHELBY V. SEARIVER MARITIME INC.
This is an appeal from the final judgment after the jury awarded Mack Shelby $8 million in damages for harm sustained from exposure to petroleum products containing benzene and other hydrocarbons while employed as an able-bodied seaman by SeaRiver Maritime Inc. SeaRiver sought reversal of the judgment on grounds that include insufficient evidence of causation, excessive damages, and attorney misconduct during closing arguments. Shelby worked with petroleum products containing benzene, a known carcinogen, and other hydrocarbons. Benzene is one of a few carcinogens to have a "cumulative effect," whereby doses of benzene continue to accumulate in the human body over time. Shelby brought this action, asserting claims against SeaRiver under the Jones Act and general maritime law, based upon SeaRiver's alleged failure to comply with federal regulations governing benzene exposure levels, to warn him of the health risks of exposure to benzene and other hydrocarbons, and to provide him with appropriate protective equipment to abate these risks. Shelby alleged that, because of these failures, he was over-exposed to benzene and other hydrocarbons on SeaRiver vessels, leading to the loss of his right kidney and other related health problems. Following trial, a jury found Shelby’s cancer and related health problems were caused by SeaRiver's failure to provide him a safe place to work and to maintain seaworthy vessels. The jury awarded Shelby a total of $8 million dollars. SeaRiver moved for judgment notwithstanding the verdict or, alternatively, for a new trial, arguing that the medical expert’s causation opinions lacked foundation and were not supported by substantial evidence that benzene exposure could have caused plaintiff's harm. SeaRiver also argued that the jury's awards for future pain and suffering and future economic loss were not supported by substantial evidence, and that a new trial was required to address the excessive damage awards and the related attorney misconduct. The trial court denied these motions, prompting this timely appeal. The appellate court found that the record reflected that Shelby’s medical expert relied on his extensive professional background in internal medicine, occupational medicine and toxicology, as well as the identified peer-reviewed scientific studies, to opine that benzene exposure can play a causal role in the development of kidney cancer. The fact that other peer-reviewed studies reached contrary conclusions, call for further research, or were conducted under circumstances in certain ways distinguishable from those relied on By Shelby’s medical expert, did not render Shelby’s expert opinion speculative or baseless. Rather, these facts are relevant to the probative weight of the opinion, which remains a matter for the jury rather than the appellate court. Based on the record, the appellate court concluded the trial court properly accepted into evidence Shelby’s medical expert’s opinion that benzene exposure can cause kidney cancer. The appellate court also found that the record, considered as a whole, provided a reasonable basis for the jury's finding that SeaRiver's negligence in facilitating or failing to prevent Shelby’s exposure to harmful levels of benzene and other hydrocarbons during his 17 years of handling petroleum products and other chemicals on SeaRiver vessels played some part, however small, in his kidney cancer and related harm. Finally, the appellate court rejected SeaRiver’s challenge to the damages awarded and charges of attorney misconduct. The court found no evidence the trial court lacked firm and even-handed control over the proceedings, or that the overall atmosphere of trial was tainted with prejudice due to counsel's conduct. Rather, the record merely reflected aggressive litigation by both sides over what were undoubtedly complex issues. The court noted that while it is no doubt difficult for any jury to assign an objective, economic number as compensation for a person's subjective pain, anxiety and discomfort, it found nothing in the record to indicate, as a matter of law, that the jury based its award (which was less than Shelby’s counsel requested) on anything other than the evidence before it. The trial court’s judgment was affirmed. (Ca. 1st App., February 18, 2011, UNPUBLISHED) 2011 Cal. App. Unpub. LEXIS 1230
QUESTIONS OF FACT AS TO WHETHER SEAMAN DESERTED HIS VESSEL (CONT.)
ATLANTIC SOUNDING COMPANY, INC. V. VICKERS, ET AL.
Jimmie Vickers was a dredge tender operator for Atlantic Sounding Company, Inc., when he allegedly sustained a shoulder injury by falling against the console or steering wheel (depending upon which version of his story you want to believe) of the boat he was operating. After Vickers deserted his vessel, avoided the post-accident substance testing, and Atlantic Sounding completed its investigation, the employer filed a declaratory judgment action, asking the court to determine whether Vickers was injured as he claimed, whether Vickers reached maximum medical improvement, whether Vickers willfully deserted his vessel without a justifiable reason, and whether he was not entitled to maintenance and cure under admiralty law. Vickers filed his Answer and asserted a Counterclaim for Jones Act negligence, unseaworthiness, and punitive damages for Atlantic’s Sounding’s failure to pay maintenance and cure. Vickers then moved for partial summary judgment on the grounds that there are no material facts in dispute to contradict his status as a Jones Act seaman. Thus, as a matter of law, he contended that he was entitled to maintenance and cure for the injuries he allegedly suffered while operating the tender boat for Atlantic Sounding. The court concluded that material fact questions remain as to whether Vickers was a Jones Act seaman at the relevant times and whether Atlantic Sounding properly terminated maintenance and cure payments to Vickers following the accident and denied summary judgment. [see July 2010 Longshore Update] Prior to his bench trial, counsel for Vickers withdrew and Vickers, proceeding pro se, moved to dismiss his Jones Act and unseaworthiness claims. Vickers retained his claim for maintenance and cure and his request for sanctions against Atlantic Sounding. After considering all the evidence in the case, as well as the arguments of the parties and demeanor of the witnesses, the court found that despite Vickers admission that he had not incurred any living expenses associated with his injury, Atlantic Sounding had nonetheless paid Vickers $4,500 in maintenance and $26,417 in cure up until the point when Vickers attained maximum cure. The court also found that Vickers failure to complete prescribed physical therapy amounted to willful misconduct, constituting an abandonment of treatment, precluding any further maintenance and cure. The court also found the Vicker’s failed to accurately disclosed his medical history, an act which could itself be a bar to maintenance and cure. The court held that the facts and law supported the conclusion that Atlantic Sounding was entitled to judgment as a matter of law. Atlantic Sounding’s motion to dismiss Vickers’ counterclaim for maintenance, cure and sanctions was granted. (USDC SDMS, February 25, 2011) 1:09-cv-00346
Update Note: Congratulations to Richard Salloum, of Franke & Salloum in Gulfport, MS on an excellent defense verdict. Most of my readers know how difficult it can be to get a total defense verdict when you are dealing with a pro se claimant. Only Richard Salloum, with his charismatic demeanor and excellent litigation skills, pulls off a coup like this one. Thanks, Richard.
SEAMAN FAILS TO MEET HIS BURDEN THAT AN ALLEGED INJURY OCCURRED
ATLANTIC SOUNDING CO., INC. V. WILLIAMS
Atlantic Sounding Company, Inc. employed Demond Williams as a deckhand and member of the crew of its dredge. On the date of Williams’ alleged injury the cutterhead of the dredge struck a
20” gas pipeline, causing an explosion. Williams continued to work for a week following the date of the explosion, until he regular rotation was complete, without ever completing an injury report or complaining about an injury. Williams deserted the vessel by not timely reporting for duty following his time off. Atlantic Sounding received notice via letter from Williams’ counsel that he had been injured and was seeking medical evaluation, and making demand for maintenance and cure. Nearly two weeks after the explosion, Williams made a one time visit to a hospital emergency room complaining of headaches and neck pain. Williams was later seen by a doctor his attorney sent him to, who diagnosed a cerebral concussion and a cervical injury based upon a story Williams gave the doctor about an alleged fall from a ladder on one of the boats at the scene of the explosion. Following its investigation of Williams’ allegations, Atlantic Sounding filed a motion with the court seeking a declaratory judgment that it was not obligated to provide maintenance and cure to Williams. At trial all witnesses, with the exception of Williams, testified that Williams never reported that he had been involved in any personal accident, never requested medical treatment, and did not complain of headaches after the explosion. Even Williams admitted that he had failed to report the accident. The court noted that there were glaring inconsistencies between Williams’ trial testimony and his deposition testimony. Atlantic Sounding’s surveillance also contradicted Williams’ deposition testimony respecting physical functions that he testified he could not perform. Given these facts and the conflicting testimony, the court found that it was unable to conclude that Williams was injured during his service to the ship. The court found that Williams failed to meet his burden of proving not only that a disability occurred (which the lack of reporting and surveillance indicated was doubtful), but also that he was in the service of the vessel when such occurred. Moreover, the court found the divergence of Williams’ testimony from all others on the scene created significant doubt as to Williams’ recall of the incident. Thus, based upon the entire record, the court refused to conclude that Williams was entitled to maintenance and cure. The court entered judgment in favor of Atlantic Sounding and against Williams, granting declaratory relief that no maintenance and cure was owed. (USDC EDLA, February 24, 2011) 2:10-cv-00890
Updater Note: Congratulations to Matt Popp of Waits, Emmett & Popp on another fine win. Although some may ascribe this victory to a totally unbelievable plaintiff and the jurist we were lucky enough to draw, I personally know it was the result of good preparation and excellent litigation skills.
ROUGH SEAS AND IMPERFECT NON-SKID RAISE QUESTIONS OF FACT FOR FALLON
DAFFERN V. CHERAMIE MARINE, LLC
Chad Daffern allegedly sustained injuries while employed as a seaman by Cheramie Marine, LLC onboard a Cheramie utility vessel. Daffern claimed that amid severe weather and rough sea conditions, as he was climbing the stairway connecting the deck and the wheelhouse, he was suddenly thrown from the stairway, causing him to fall to the deck and to sustain his alleged injuries. Daffern filed a seaman’s complaint asserting negligence and unseaworthiness under the Jones Act and general maritime law. Cheramie moved for summary judgment, arguing that both the Jones Act and the unseaworthiness claims fail as a matter of law. In support of that contention, Cheramie pointed to Daffern’s deposition testimony, which indicated that Daffern could not even remember the details regarding his fall from the stairway, including whether he had "three point contact" at the time of his fall. Daffern opposed the motion noting that there was evidence that the acting first captain and the second captain of the vessel knew that the rough sea conditions rendered it unsafe for the vessel to remain in the area, but that a decision was made not to move the vessel to shore or to shallow waters. Daffern pointed to testimony that the second captain found that the seas were roughly 10 or 11 feet and informed Cheramie’s home office that it was dangerous for the vessel to remain at its location. Yet, he was told by the home office to keep the vessel out in the field. With respect to the vessel's alleged unseaworthiness, Daffern argued that the stairway lacked sufficient non-skid surfacing. The court held that Daffern had adduced sufficient evidence to show that there is a genuine issue of fact as to whether Cheramie was negligent and whether that negligence caused Daffern injuries. When viewed in the light most favorable to Daffern, the court concluded that the evidence could support the finding that Cheramie was negligent, since negligence can be found in the decision to keep the vessel out in the field despite the rough sea conditions and despite the understanding that those sea conditions made it unsafe for the vessel to remain at its location. Although the court acknowledged that there was clear evidence of contributory negligent on the part of Daffern, the court held that under the circumstances, Cheramie’s motion for summary judgment with respect to Daffern’s Jones Act claim must be denied. The court also found that the preliminary expert report of Daffern’s liability expert presented sufficient evidence to support the finding that the stairway was unsafe, that this condition rendered the vessel unseaworthy, and that the absence of sufficient non-skid surfacing played a substantial part in causing Daffern to fall from the stairway. Because Daffern adduced sufficient evidence to show that there is a genuine issue of fact as to his claim of unseaworthiness, Cheramie’s motion in respect to unseaworthiness was also denied.
NO “WARD OF THE COURT” REASONABLE DOUBT FOR YOU, SHUCKER
LOVOS V. OCEAN FRESH SEA CLAM, LTD.
Catalina Lovos worked for Ocean Fresh Sea Clam, Ltd. as a clam shucker on a per diem basis. Lovos alleged that, while working aboard an Ocean Fresh vessel, he was struck in the back by a large diameter hose that was used to suck clams off the bottom of the bay and suffered injuries to his back and neck. Lovos brought a seaman’s action against Ocean Fresh under the Jones Act and general maritime law to recover damages for his alleged injuries. Ocean Fresh questioned the validity of the alleged accident and Lovos moved for partial summary judgment pursuant to FRCP 56 on his claim for maintenance and cure. Ocean Fresh opposed the motion, arguing there were genuine issues of material fact concerning whether Lovos was injured while in the ship's service that precluded a grant of partial summary judgment. After reviewing the deposition testimony the court agreed that there was record evidence that called into question whether Lovos was injured by a falling hose or otherwise while working aboard Ocean Fresh’s vessel. Although Lovos reported working with the vessel captain’s son and a mate, both testified that they did not observe any object, including a hose, fall on Lovos. Moreover, Lovos never reported the injury or complained of pain or discomfort on the date of the alleged occurrence and did not seek medical attention until several days later. The vessel captain testified that he had observed and supervised Lovos throughout the day on the date of the alleged hose incident and that Lovos showed no signs of injury or discomfort and there was no record of any hose breaking loose on the date in question. In view of the conflict in the evidentiary record, the court concluded that the question as to whether Lovos was injured while in the service of Ocean Fresh’s vessel raised a material triable issue that could not be resolved on partial summary judgment. Lovos’s motion for partial summary judgment on his maintenance and cure claim was denied.(USDC EDNY, January 26, 2011) 2011 U.S. Dist. LEXIS 8682
STATUTE OF LIMITATIONS NOT TOLLED BY STATE COURT COMPLAINT
FLORES V. COASTAL MARINE EQUIPMENT, INC.
Luis B. Flores filed his lawsuit against Coastal Marine Equipment, Inc. on March 12, 2010, alleging that he was injured on January 26, 2006, by a defective winch while he was working on board Coastal’s vessel. Flores asserted claims for product liability, negligence, negligence per se, misrepresentation, and gross negligence pursuant to the Jones Act, the general maritime law and other applicable state and federal laws. Flores originally sued Coastal in a Texas state court, but that lawsuit was dismissed for lack of personal jurisdiction. Flores claimed that the present lawsuit was filed within thirty days of the dismissal of the state court lawsuit and claimed the statute of limitations should be tolled pursuant to 28 U.S.C. §1367(d). Coastal moved to dismiss pursuant to FRCP 12(b)(6), arguing that Flores’s Complaint was barred by the applicable statutes of limitations. Flores failed to respond to Coastal’s motion. The court initially noted that the three year statute of limitations applied to all of Flores’s causes of action. Further, Flores’s lawsuit was filed over four years after his alleged injury occurred. The only argument Flores advanced in an effort to toll the limitations period concerned 28 U.S.C. § 1367(d). The court found the cited statute inapplicable to claims that are originally filed in state court and subsequently dismissed. Therefore, the court held that Section 1367(d) did not toll the limitations periods applicable to Flores’s lawsuit. Since the limitations periods applicable to Flores' claims had expired, Flores’s lawsuit against Coastal was dismissed. (USDC SDMS, February 3, 2011) 2011 U.S. Dist. LEXIS 10859
LIMITATION CLAIM PROHIBITED BY ROBINS DRY DOCK, BUT . . .
IN RE: PRIDE OFFSHORE, INC.
This maritime dispute arose out of damage allegedly caused when a Pride Offshore, Inc. jack-up rig detached from its moorings during Hurricane Ike. Pride filed a complaint in exoneration or alternatively for limitation of liability, and Century Exploration New Orleans, Inc. filed a claim. Century alleged that part of the wreckage from Pride Offshore’s jack-up rig struck and damaged pipelines that interfered with Century's operations and necessitated repairs. Parts of the jack-up rig wreckage had settled on top of pipelines belonging to The Williams Companies, Inc. and Tennessee Gas Pipeline Company (TGPC). Century had property interests in one such pipeline and contributed to its repairs. Century claimed approximately $21 million in damages caused solely by, and wholly due to, the unseaworthiness of Pride Offshore’s jack-up rig, the negligence of her master and crew, and the negligence of her owners and operators. Pride Offshore moved for summary judgment, arguing that the economic-loss rule precludes Century’s claim. Century responded with a different theory and asked for leave to amend to add allegations of recklessness and intentional misconduct. Pride Offshore replied, arguing that the court should grant its motion for summary judgment and deny Century's motion to amend as futile. Pride Offshore argued that summary judgment is appropriate for two reasons. The first is that Century’s amended claim is insufficient because it fails to allege that Pride Offshore knew of Century’s contract with TGPC. The second is that Century lacked evidence of a proprietary interest in the pipeline that would support economic-loss damages for negligence. Pride Offshore argued that there is no exception to the Robins Dry Dock rule for intentional or reckless conduct. Century argued that Pride Offshore intentionally placed a patently inadequate rig on the sea floor, knowing that it would not withstand hurricane force conditions and would not remain on site. Because Century had effectively sought leave to amend without filing a proposed amended complaint, the court found it difficult to determine whether Century proposed to allege that Pride Offshore knew of specific contracts between Century and TGPC or that Pride Offshore knew that Century had to have contracts with some pipeline owner. To provide a sufficient basis to rule on the futility claim, the court granted Century leave to file an amended complaint, noting that the allegations in an amended claim would enable Pride Offshore to clarify the basis for its motion to dismiss and enable the court to rule whether the allegations are sufficient. The motion for summary judgment based on the adequacy of the pleadings was granted, with leave to amend. Since Century had acknowledged that it had no proprietary interest in the pipeline, the court concluded that its contribution to the repair costs did not raise a fact issue as to whether it has a negligence claim against Pride Offshore seeking to recover such payments. The granted Pride Offshore’s motion for summary judgment based on the absence of a proprietary interest in the damaged pipeline. (USDC SDTX, February 2, 2011) 2011 U.S. Dist. LEXIS 10012
TRUMP DOESN’T ALWAYS WIN (CONT.)
RODRIGUEZ V. TRUMP CASINO
Catherine Rodriguez, a dealer on a gaming boat owned by Trump Casino, allegedly sustained injuries as she was walking through the employee cafeteria. Rodriguez allegedly fell and claimed the fall originated from something sticky or tacky on a floor mat which caused her to twist her ankle and fall over. The cafeteria is in a land-based pavilion located between the Trump vessel and the Majestic Star Casino, another gaming vessel, and is cleaned, decorated, and managed by Buffington Harbor LLC. At the time of the injury, Indiana law prohibited a casino vessel from being moored to the dock on a permanent basis. Rodriguez sought relief under the Jones Act and the general maritime law. maritime personal injury doctrines of maintenance and cure and unseaworthiness. Trump filed a motion for summary judgment that the court granted in part and denied in part [see September 2009 Longshore Update]. In denying Trump's motion on the Jones Act claim, the court found, in relevant part, that there was no way to determine whether Buffington Harbor or any of its employees had notice of the floor's condition. Because notice, either actual or constructive, is an essential element that Rodriguez must prove to succeed on her claim, Trump asked the court to reconsider its earlier decision, arguing that the court made an error of law by placing the burden of proof on the wrong party. Rodriguez moved for summary judgment on the sole issue of whether she was within the scope of her employment at the time of her injury. The court denied the motion for reconsideration, noting that Trump misconstrued the court's original holding. The court pointed out that it was not holding that the record was devoid of evidence to support Rodriguez's position that Trump had constructive notice of the condition of the cafeteria. Rather, the court was simply stating that it could not determine as a matter of law from the facts before it whether Trump did or did not receive notice or, more appropriately put, the court was stating that a genuine issue of material fact existed. Turning to Rodriguez's motion for summary judgment, the court noted that Rodriguez was not traversing Buffington Harbor's property for the purpose of accessing the parking lot at the time she was injured, nor was she on her employer's premises fulfilling her job duties. Rodriguez's actions were more attenuated from her employment than in the cases holding that the employee was within the scope of his employment as a matter of law. Rodriguez had clocked out, was off of her employer's premises, and was having a drink at Buffington Harbor at the time of the incident. While her physical and temporal proximity to her employment created a triable issue of material fact, it did not, as a matter of law, require the court to conclude that she was within the scope of her employment. Rodriguez’s motion for summary judgment was denied. (USDC NDIN, February 4, 2010) 2011 U.S. Dist. LEXIS 11346
SHAPE AND TYPE OF LIGHTING NOT MATERIAL IN EXONERATING BOAT OWNER
IN RE: GORE MARINE CORPORATION
A dredge owned by Great Lakes Dredge & Dock Company, LLC (GLDD), completed its work for a beach renourishment project and was in the process of transporting necessary equipment to its location. Two such pieces of necessary equipment were a crane barge and approximately 1,100 - 1,800 feet of dredge pipe which had been involved in the beach renourishment project. Because of anticipated bad weather, this equipment was anchored beyond the "demarcation line" by the lead tug, owned and operated by Gore Marine. At the appropriate time, the proper deck lights on the tug were turned on and the tug captain tightened the pipeline and took the responsibility to check the lights on the pipeline. Another tug, owned and operated by Triple S Marine, was attached to the opposite end of the pipeline and that is where the tugs and equipment were staged for the remainder of the evening. Donna Skaggs and her friend John Gillen, aboard a 24-foot Boston Whaler equipped with twin 225 horsepower Yamaha outboard motors, were returning from a fishing trip and allided with the pipeline that evening. The impact of the allision propelled Ms. Skaggs forward towards the cabin and Mr. Gillen into the water. Mr. Gillen estimates that he was in the water for about fifteen minutes as he swam along the dredge pipeline towards the crane barge. Although both Ms. Skaggs and Mr. Gillen reported that they could see no visible lights on the pipeline, the Coast Guard report indicated the pipeline was well lit. Following the incident in question, Gore Marine filed a Complaint for Exoneration From or Limitation of Liability. In due course, claims were filed by Skaggs, GLD&D and Triple S Marine. The court initially found that Gore Marine’s tug was a vessel at anchor at a temporary location in the open water, and was not in a channel, near a channel, or in an area in which overnight anchoring was prohibited. Since the case involved an allision, under the Oregon Rule there was a rebuttable presumption that the fishing vessel was at fault in the allision. The court rejected most of Skaggs’ allegedly negligent acts or violations by Gore Marine, intended to rebut the Oregon Rule presumption and to establish her entitlement to the Pennsylvania Rule presumption. However, the court did find that COLREGS Rule 24(g) applied and, while the pipeline was well lit, it was not specifically compliant with Rule 24(g). Therefore, the court ruled that Skaggs had rebutted the presumption in the Oregon Rule that her fishing vessel was at fault. Because of the Rule 24(g) violation, the Pennsylvania Rule provided for a presumption that Gore Marine’s tug was at least a contributory cause of the allision. However, the court found that Skaggs fishing vessel also committed two primary violations which brought it within the Pennsylvania Rule. Since both towing vessel and the pipeline were well lit, and at the very least the fishing vessel violated her duties regarding speed and course given the uncertainty about the situation she encountered, the court held that Skaggs’ vessel violated Rules 6 and 7, considering the totality of the circumstances. When both vessels involved in an allision are operating in violation of statutes designed to prevent such mishaps, the Pennsylvania rule requires a finding find that the statutory fault of both vessels contributed to the accident, unless the court finds that the fault of either could not have been a cause of the allision. The court found that the lack of the diamond shapes and the lack of all-round white non-blinking lights on the pipeline could not have been the cause of the allision. The court held that the accident was caused by Skaggs's failure to see the lights, not because of the shape or color of the lights. Accordingly, the court found that shape, color, and flashing of the lights on the pipeline could not have contributed to the allision. Judgment of exoneration was entered in favor of Gore Marine. (USDC MDFL, February 10, 2011) 2011 U.S. Dist. LEXIS 13305
FOREIGN SEAMAN EXCLUDED FROM JONES ACT COVERAGE BY 46 U.S.C. §30105
COSTINEL V. TIDEWATER, INC. ET AL.
Olaru Costinel, a Romanian citizen, entered into a contract with EMCS Limited to work aboard a vessel owned by T. Benetee, L.L.C. Costinel’s contract with EMCS calls for the application of the law of the Isle of Man and for jurisdiction in the courts of the Isle of Man to be applicable to all disputes. Costinel filed a complaint for damages against Tidewater Inc. and T. Benetee, pursuant to the Jones Act and alleging that he was employed as a seaman by Tidewater, Inc. and that he worked aboard a T. Benetee vessel in Nigeria, when he contracted malaria and suffered permanent paralysis in his left arm and his lower body. Costinel argued that Tidewater is liable to him under the Jones Act and under the general maritime law doctrine of unseaworthiness. He further asserted claims for punitive damages and maintenance and cure. Tidewater filed its answer and defenses, including the Jones Act exclusion and forum non conveniens defenses. Tidewater and T. Benetee argued that Costinel’s claims should be dismissed under the Jones Act Exclusion, 46 U.S.C. §30105, which restricts recovery by non-citizens and non-resident aliens for incidents in waters of other countries. Costinel did not dispute that his case falls under the Jones Act exclusion at least as to part 30105(b); instead, he chose to attack Tidewater’s position by arguing that his case qualifies for an exception to the exclusion found in §30105(c). Section 30105(c) provides for the non-application of §30105(b) if Costinel can show that a remedy is not available under the laws of either Nigeria, the site of the injury, or Romania, his country of citizenship. Tidewater and T. Benetee assert that Costinel failed to sustain his burden of showing that no adequate remedies are available to him under the laws of Nigeria or Romania such that the Jones Act exclusion would not apply. The court found that the defendants had established that Costinel is a non-citizen; the injury occurred within the territorial waters or waters overlaying the continental shelf of Nigeria; and Costinel was employed at the time of the incident by a person engaged in the exploration, development, or production of offshore mineral or energy resources, as required by the statute. Costinel failed to meet his burden of showing the Jones Act exclusion does not apply because no remedy is available under the laws of Nigeria or Romania. Accordingly, the court held that Costinel could not meet his burden to prove the exception to the Jones Act exclusion. As to Costinel’s remaining causes of action, the court denied the defendants’ forum non conveniens motion, holding that the public interest factors weighed in favor of Costinel’s choice of forum, noting that Louisiana and its citizens have a strong interest in policing the behavior of its corporations and in seeing that Louisiana corporations treat their employees fairly. Further, the court concluded that the forum is the most convenient for the parties, as well as the public. The court granted defendants’ motion for summary judgment on Costinel Jones Act claim, but denied defendants' motion to dismiss for forum non conveniens. (USDC EDLA, February 3, 2011) 2011 U.S. Dist. LEXIS 10434
COURT APPLIES MARITIME LAW TO MESOTHELIOMA CLAIM
SWEENEY V. SABERHAGEN HOLDINGS, INC., ET AL.
Leo H. Sweeney filed this asbestos-related personal injury action in state court, asserting claims against multiple parties including Crane Co., a valve manufacturer. The matter was removed to federal court and then transferred to the Eastern District of Pennsylvania to be included in the multi-district Asbestos Liability Litigation. Sweeney alleged that he developed mesothelioma as a result of occupational exposure to asbestos-containing products while working on various naval vessels and at commercial shipyards between 1941 and 1978. With regard to Crane in particular, Sweeney claimed that he was exposed to asbestos-containing packing used in conjunction with Crane valves when he performed maintenance and repair on those valves during his service onboard various naval vessels between 1941 and 1956. The court initially noted that Sweeney had failed to produce any evidence indicating that Crane manufactured or distributed asbestos-containing replacement parts for its valves. And, while his testimony established exposure from the packing of Crane valves, Sweeney made clear that he had never, in his entire career, installed a new valve. He could not recall whether the packing was dry or lubricated, or whether it contained asbestos. Most importantly, he was unable to identify the manufacturer of these particular valves. The expert opinions of Sweeney’s industrial hygienists were also of no value to Sweeney on the question of product identification. Crane moved for summary judgment on two grounds, asserting: (1) that Sweeney could not demonstrate sufficient exposure to Crane’s products, and (2) that any exposure Sweeney can demonstrate was due to asbestos components that were replacement parts manufactured by other companies for which Crane is not legally responsible. Crane also raised a choice of law question, arguing that maritime law should apply as the alleged tort occurred on the navigable waters and the activity bore a substantial relationship to traditional maritime activity. Sweeney countered that the maritime location test is not satisfied in that "the alleged tortuous act in this case is Crane's design, manufacture, and/or distribution of a defective and inherently dangerous product," and Sweeney’s mesothelioma manifested while he was on land. The court rejected these arguments, noting that Sweeney failed to provide any legal support for the proposition that either of these events, rather than the location of Sweeney’s exposure, determines where the tort was committed for purposes of the location test. Additionally, the court noted that simply designing and manufacturing valves, even ones that contain asbestos internal parts, is not tortuous conduct unless and until a particular plaintiff is exposed to that asbestos - until that time, no tort has been committed. Additionally, due to the long latency period of asbestos-related diseases, the location of the plaintiff when the disease manifests is a matter of pure chance, and is not an appropriate focus for a jurisdictional test. Therefore, the court concluded that maritime law governed Sweeney’s action. In order to establish causation in an asbestos claim under maritime law, a plaintiff must show, for each defendant, that he was exposed to the defendant's product, and the product was a substantial factor in causing the injury he suffered. Accordingly, a mere "minimal exposure" to a defendant's product not sufficient to establish causation. Additionally, under maritime law a defendant is only legally responsible for component parts which it either manufactured or distributed. Accordingly, Crane could not be held legally responsible for replacement parts which it neither manufactured nor distributed. The court held that maritime law applied to this action and that Sweeney’s evidence was insufficient to survive summary judgment under that standard, in that he could not establish any threshold exposure to asbestos-containing parts manufactured or distributed by Crane. Rather, the evidence established that any asbestos-containing parts of Crane valves to which Plaintiff may have been exposed would have been replacement parts manufactured and distributed by companies other than Crane. The court granted Crane’s motion for summary judgment. (USDC EDPA, February 13, 2011) 2011 U.S. Dist. LEXIS 13563
Quotes of the Month . . .“Expect the worst and you won't be disappointed.”--Helen Macinnes
“There is no sense in crying over spilt milk. Why bewail what is done and cannot be recalled?”--Sophocles
“Destiny is not a matter of chance, it is a matter of choice; it is not a thing to be waited for, it is a thing to be achieved.”--William Jennings Bryan
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
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