November 2014
Notes From Your Updater - On October 14, 2014, the U.S. Supreme Court denied the petition for certiorari in the case of Naquin v. Elevating Boats, LLC, Docket No. 14-28 [see February 2012, December 2012, and April 2014Longshore Updates]. The question presented to the Court was, “Whether the Fifth Circuit in Naquin misapplied the law of the United States Supreme Court, specifically the law established by Consolidated Rail Corporation v. Gottshall and, whether the Circuit Courts including the Naquin Court are in conflict as to the emotional damages recoverable by an injured seaman or railway worker.
On October 14, 2014, the petition for certiorari was denied by the U.S. Supreme Court in the case of Lincoln v. Director, OWCP, et al. [Ceres Marine Terminals, Inc.], Docket No. 13-1457 [see April 2014 Longshore Update]. The questions presented for review were, “Did the Fourth Circuit Court of Appeals erroneously find that Employer's payment of one week's benefits at the maximum compensation rate qualifies as compensation within the meaning of 33 U.S.C. Section 928(a)? Did the Fourth Circuit Court of Appeals err in finding that this Court's decision in Roberts v. Sea-Land Services, Inc., 132 S. Ct. 1350, 182 L.E.d 2d 341 (2012) was not germane to this claim? Did the Fourth Circuit Court of Appeals erroneously concluded that Lincoln failed to raise before the Benefits Review Board the issue that when the Employer filed a notice of controversion prior to July 7, 2011 payment, it signaled that it was controverting his claim, and thus, by doing so, irrevocably triggered Section 928(a)?
On October 14, 2014, a petition for certiorari was filed in the case of American Commercial Lines, LLC v. United States of America, et al., Docket No. 14-438 [see August 2014 Longshore Update]. The question presented for review is, “Does the Oil Pollution Act, 1990, 33 U.S.C. §§2701-2762, displace pre-existing general maritime law so as to require the dismissal of the third-party complaint filed by American Commercial Lines LLC against Environmental Safety & Health Consulting Services, Incorporated and United States Environmental Services, L.L.C. seeking to recover non-contractual payments made to them by the National Pollution Funds Center for phantom labor and equipment never supplied and for payment for untrained or illegal workers at the contractual rates applicable to properly trained, legally qualified laborers?”
On September 10, 2014, another petition for writ of certiorari was filed with the U.S. Supreme Court in the case of Naquin v. Elevating Boats, LLC, Docket No. 14-306 [see February 2012, December 2012, and April 2014Longshore Updates]. The question presented to the Court is, “Whether a land-based repair supervisor and land-based crane operator, who performs routine maintenance and repair on boats that are docked in a shipyard service canal, and who has spent less than one percent of his work time on any vessel in navigation or on open water, is a ‘seaman’ under the Jones Act.”
On October 6, 2014, the petition for certiorari was denied by the U.S. Supreme Court in the case of Dize v. Association of Maryland Pilots, Docket No. 13-1268 [see October 2013 Longshore Update]. This litigation involved seaman status and the question presented by the petition was: “When applying the Chandris 30-percent rule, may a court consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or must a court categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held?
On October 6, 2014, the petition for certiorari was denied by the U.S. Supreme Court in the case of Downer, et al. v. Royal Caribbean Cruises, Ltd., Docket No. 13-1445 [see June 2013 and December 2013 Longshore Updates]. This case involved a putative class action alleging that Royal Caribbean unlawfully withheld or delayed payment of, or failed to pay, stateroom attendant wages. The question presented by the petition was: “Whether the Eleventh Circuit's decision compelling arbitration, under foreign law, of seafarers' claims against a cruise line, consisting of forced labor and wage deductions, deprives them of their American statutory rights in violation of the ‘effective vindication doctrine.’”
On October 6, 2014, the petition for certiorari was denied by the U.S. Supreme Court in the case of Lyles v. Seacor Marine, Inc., Docket No. 14-5139 [see March 2014 Longshore Update]. This case involved a persistent pro se seaman, who has already been threatened with sanctions by the court, relief from the judgment that dismissed his claims under the Jones Act and general maritime law against Seacor Marine.
On October 24, 2014, the Fifth Circuit court of Appeals published a revised en banc opinion in the case of McBride, et al. v. Estis Well Service, LLC. The opinion was still 73-pages in length and the outcome remained the same, I am happy to report.
On October 24, 2014, the Supreme Court of Texas denied the Motion for Rehearing in the case of King Fisher Marine Service, L.P. v. Tamez, Docket No. 13-0103 [see September 2014 Longshore Update]. This appeal involved the Court’s affirmance ofa “specific order” exception to contributory negligence under the Jones Act.
RECEIPT OF LHWCA BENEFIT DOES NOT CREATE FEDERAL JURISDICTION (CONT.)
BYNUM V. NORFOLK SOUTHERN RAILWAY COMPANY
Gilbert Bynum was employed by Norfolk Southern Railway Company as a control operator and brakeman at its coal terminal, created for the sole purpose of loading coal from railroad cars onto ocean-bound vessels. Bynum's job was to release the brakes on loaded coal cars, causing them to roll downhill into a rotary dumper, which would rotate the coal car 180 degrees and dump the coal onto conveyors, which move the coal onto the pier for deposit into the holds of coal ships. Bynum was allegedly injured in a trip and fall incident, supposedly related to coal dust and debris that had been allowed to accumulate between and aside the railroad tracks. Following his injury, Bynum applied for and received benefits under the LHWCA. Bynum subsequently commenced a FELA action in state court, alleging negligence against Norfolk Southern and seeking thirty million dollars in damages. Norfolk Southern removed the case to federal court. Bynum moved to remand the case to state court, arguing that his claim, which was filed in state court under FELA, could not be removed to federal court. The federal court granted Bynum's motion to remand the matter to state court [see September 2013 Longshore Update]. Norfolk Southern appealed that remand and filed a mandamus petition asking the federal appellate court to vacate the district court's order and dismiss the case, or alternately, to order the district court to address the merits of its defense to the FELA claim. The Fourth Circuit concluded that it lacked jurisdiction to review the district court's order on appeal [see July 2014 Longshore Update]. On remand, the state court finally addressed the question of whether the exclusivity provision in the LHWCA barred a railroad brakeman's action for damages under the FELA. The court found that Bynum was engaged in "maritime employment" as the term was construed under§902(3) in the federal courts because his employment duties involved the loading of coal on vessels. The court went on to hold that, pursuant to §905(a), liability under the LHWCA was the exclusive remedy for railroad workers in maritime employment, such as the brakeman, who attempted to assert FELA claims. Section §905(b) of the LHWCA did not create an exception that applied to the brakeman. Norfolk Southern’s special plea in bar was sustained and Bynum’s case was dismissed. (Cir. Ct. Virginia, September 25, 2014) 2014 Va. Cir. LEXIS 54
QUESTIONS OF FACTS EXIST WITH RESPECT TO BORROWED SERVANT STATUS
TAJONERA, ET AL. V. BLACK ELK ENERGY OFFSHORE OPERATIONS, LLC, ET AL.
Avelino Tajonera, a welder employed by D&R Resources, LLC, was injured in an explosion on an offshore oil platform and later died from his injuries. D&R provided workers for onshore and offshore work and had entered into a Master Service Agreement ("MSA") with Grand Isle Shipyard, Inc. providing that D&R employees, including Tajonera, would perform work for Grand Isle at times. Grand Isle was a contractor of Black Elk Energy Offshore Operations, LLC, the owner of the oil platform where the explosion occurred. After Tajonera’s estate filed suit, Grand Isle moved for summary judgment, contending that Tajonera was a borrowed servant of Grand Isle at the time of his injury, such that under the provisions of the LHWCA plaintiffs were barred from bringing tort claims against Grand Isle. Plaintiffs and Black Elk opposed the motion, contending that six of the Ruiz factors - control, meeting of the minds, employee's acquiescence to the work situation, employer's termination of relationship with the employee, right to discharge the employee, and obligation to pay the employee - favored a finding that Tajonera was not a borrowed employee of Grand Isle. After analyzing the nine Ruiz factors, the court found that disputed issues of material fact existed with respect to factors 1, 3, 5, 8, and 9. Accordingly, Grand Isle's motion for summary judgment was denied. (USDC EDLA, October 10, 2014) 2014 U.S. Dist. LEXIS 145783
And on the Admiralty front . . .
TIME CHARTERER NOT LIABLE FOR CREW MEMBER INJURIES
BARRON V. BP AMERICA PRODUCTION COMPANY
Kenneth Barron was allegedly injured while working on a vessel owned by John Fraleigh. The vessel was performing monitoring and cleanup work as part of BP's Vessels of Opportunity Program when Barron suffered his injuries. Specifically, Barron alleged that he was thrown from his seat due to the vessel’s excessive speed and allegedly suffered vertebral burst fractures in his spine as a result. Barron filed suit and the district court granted BP's motion for summary judgment, dismissing the action with prejudice. It held that the charter party between BP and Fraleigh was unambiguously a non-demise time charter, and because BP was a non-demise charterer of vessel involved, it was not liable for Barron’s claims under the Jones Act or for the unseaworthiness of the vessel. As for Barron's negligence claim under general maritime law, the court held that Barron did not present any competent summary judgment evidence or testimony that supported his claim that BP was negligent in its capacity as the vessel’s time charterer. Barron appealed the district court's grant of summary judgment in favor of BP, arguing that the district court erred in its interpretation of the charter party between BP and Fraleigh as a non-demise charter. Barron argued that BP actually controlled the vessel and that, under a proper interpretation of the charter party, BP assumed liability for crew negligence and the vessel's unseaworthiness. The appellate court rejected both contentions, holding that the Master Vessel Charter Agreement at issue unambiguously established that BP was not a demise and that the vessel owner maintained responsibility for the vessel. The appellate court affirmed the district court's grant of summary judgment in favor of BP on Barron's claims under the Jones Act and for unseaworthiness. The appellate court also agreed with the district court’s ruling that Barron had not presented any competent summary judgment evidence or testimony tending to demonstrate that BP acted negligently by purportedly utilizing an undersized vessel. The district court's grant of summary judgment in favor of BP and its dismissal of Barron's action with prejudice was affirmed. (5th Cir, October 1, 2014, UNPUBLISHED) 2014 U.S. App. LEXIS 18773
11THCIRCUIT AFFIRMS ORDER COMPELLING ARBITRATION
TRIFONOV V. MSC MEDITERRANEAN SHIPPING COMPANY SA, ET AL.
Nikolay Trifonov was allegedly injured while working as a crew member aboard a cruise ship owned by Mediterranean Shipping Company SA (MSC), which was registered and flagged in Panama. Trifonov filed his seaman’s complaint in state court, asserting claims under the Jones Act and general maritime law. MSC removed the case to federal court and filed a motion to compel arbitration based on a provision of the collective agreement it had entered into with Trifonov's seafarer's union, which was incorporated into Trifonov's employment contract. The district court granted MSC's motion, dismissed Trifonov's complaint, and ordered the parties to proceed to arbitration in compliance with the Agreement. Trifonov appealed the district court's order compelling him to arbitrate his claims against MSC, arguing that his agreement to arbitrate failed to satisfy one of the Convention's jurisdictional factors. He contended that, pursuant to section 1 of the Federal Arbitration Act, which expressly excludes “contracts of employment of seamen” from the definition of "commerce," his employment contract is no "commercial" legal agreement for purposes of the Convention. The appellate court found that Trifonov's argument was foreclosed by Bautista, in which the 11th Circuit concluded that the Convention recognized no exception for seamen employment contracts. Trifonov next contended that the arbitration clause was void as against public policy, based on the Supreme Court's "effective vindication exception," arguing that enforcing the arbitration agreement would waive prospectively his rights secured under United States law. The appellate court rejected Trifonov's arguments as "premature" at this stage in the proceedings, relying on its opinion in Lindo, which it held to be still good law, despite Trifonov’s arguments to the contrary. In the light of the appellate court’s binding precedent, the appellate court held that the district court correctly granted MSC's motion to compel arbitration. (11thCir, October 21, 2014, UNPUBLISHED) 2014 U.S. App. LEXIS 20102
ALL YOU NEED TO DO TO BE A PUTATIVE SEAMAN IS GET IN A BOAT
MARSTON V. GENERAL ELECTRIC COMPANY, ET AL.
Jeffrey Harbison, an employee of defendant URS Corporation, was assigned to perform archeological surveys in connection with General Electric Company's dredging project, when a boat he was operating on the river as part of his employment duties lost power and was swept over the Thompson Island Dam, where he drowned. His wife commenced this action asserting a claim against URS under the Jones Act. Parsons Engineering of New York, Inc. and Saratoga Safety, Inc., contractors on the dredging project, asserted cross claims against URS for common-law and contractual indemnity. Prior to answering, URS moved, pursuant to CPLR 3211 (a) (1) and , to dismiss plaintiff's Jones Act cause of action and the cross claims for indemnification asserted by Parsons and Saratoga Safety. Supreme Court denied the motion to dismiss and granted plaintiff's motion to amend the complaint. URS appealed the lower court ruling, arguing that plaintiff failed to sufficiently state a Jones Act violation by failing to allege that decedent was a "seaman" under the statute and that, even if a claim was properly stated, the affidavits submitted in support of the motion to dismiss conclusively establish that the decedent did not qualify for seaman status under the Jones Act. The appellate court began its analysis by noting that, to warrant the relief sought, URS would need to establish conclusively that plaintiff had no cause of action. The factual affidavits that URS submitted to support dismissal of the complaint, pursuant to CPLR 3211 (a) (7), described decedent's duties for URS as a land-based archeologist and indicate that, other than the date of his death, the only other times he was on a boat in connection with the Hudson River project included three days in 2006 and six days in 2009. The affidavits also noted that decedent was also assigned to other URS projects during this time frame, but did not sufficiently describe whether his activities while assigned to the General Electric dredging project were limited to the times that he spent on the water in 2006 and 2009. The appellate court pointed out that the determination of whether decedent was a seaman was fact-specific and, depending on the nature and duration of his duties on this assignment, it was possible that his status had converted to that of a seaman at the time of his fatal accident. The appellate court held that the lower court properly declined to make factual determinations in the context of the CPLR 3211 motion. Since URS's motion to dismiss the cross claims for common-law indemnity hinged on whether the Jones Act was applicable, the motion to dismiss those cross claims was also properly denied. The denial of URS’s motion to dismiss was affirmed. (NY Sup. Ct. 3rd App., October 30, 2014) 2014 N.Y. App. Div. LEXIS 7399
IT’S NOT ERROR OF LAW; IT’S A CREDIBILITY DETERMINATION
TROGLEN V. HYDRAULIC WELL CONTROL, ET AL.
Marshall Troglen began working for Hydraulic Well Control/Boot and Coots Services, LLC (B&C) in a land-based warehouse. Soon thereafter, Troglen expressed interest in offshore work. B&C was hired by Nexen, an oil and gas company that develops energy resources, to restore its well located on a platform fixed to the outer continental shelf. Troglen was assigned to work as a helper for this job by B&C. Troglen was allegedly injured while working on the fixed platform. The injury occurred when an errant toss by his co-employee resulted in a piece of Teflon striking Troglen in the face. The piece of Teflon was in the shape of a pipe and weighed approximately two-and-a-half pounds. Troglen filed a petition for damages against B&C, alleging entitlement to various compensation based on his status as a seaman under the Jones Act. In response, B&C filed a motion for summary judgment asserting that Troglen was not entitled to the compensation sought because he was not a seaman under the Jones Act. The trial court denied B&C's motion finding that a genuine issue of material fact existed on the issue. After conducting a trial on the merits, the trial court rendered and signed a judgment that Troglen failed to carry his burden to prove that he was a seaman under the Jones Act and, thus, dismissed his claims against B&C. After Troglen’s motion for a new trial was denied, he filed this appeal, arguing that trial court erred by using an incorrect legal standard in its deliberation of whether Troglen was a seaman, thereby committing an error of law in dismissing his claims under the Jones Act. Although Troglen did not directly state how he contends the trial court incorrectly applied the Chandris test, in reviewing his brief in its entirety, the appellate court concluded that Troglen was asserting that the trial court incorrectly based its finding that he failed to carry his burden to prove that he was a Jones Act seaman solely upon how much time he physically spent on a vessel. The appellate court observed that, on this particular job, B&C's employees, as well as other employees from different companies, ate, slept, and used the restroom facilities on a jack-up rig that was attached to the fixed platform by a gangway. Although Troglen contended he was on the jack-up rig 50% of the time, the trial court determined that Troglen was not credible and, as such, it did not give credence to his assertion. Accordingly, the appellate court found no merit to Troglen's assertion that the trial court committed legal error by using an incorrect legal standard in its deliberation of whether he was a seaman. The trial court merely made a credibility determination to find, as fact, how much time Troglen physically spent on the jack-up rig Following a review of the entire record and the testimony about Troglen duties, the appellate court found that a reasonable factual basis existed for the trial court to find that Troglen failed to carry his burden to prove that he was a Jones Act seaman. The summation of the witness testimony could reasonably be interpreted that Troglen's connection to the jack-up rig was tenuous and, therefore, not substantial in duration or nature as required by the second prong of the Chandris test. Finding no error on the part of the trial court, the judgment of the trial court was affirmed. (La. App. 3rd Cir, October 8, 2014) 2014 La. App. LEXIS 2431
APPELLATE COURT PARTIALLY REVERSES SANCTIONS ORDER
IN RE: NOBLE DRILLING
Salvadore Maciel was cleaning a deck on an oil rig when his leg slipped into an exposed hole, causing Maciel to allegedly injure his shoulders, ankle, and back. At the time, Maciel was employed by CleanBlast, which had been hired to perform maintenance work on the rig. Maciel saw the area in which the hole was located while performing a hazard inspection before working in the area, but denied that he saw the hole itself. Maciel sued Noble and its related business entities under the LHWCA, alleging negligent maintenance of the vessel, failure to warn, and failure to make safe the premises, among other causes. Noble filed an answer and asserted eleven affirmative defenses, including contributory negligence and that Maciel's claims were precluded as a result of the open and obvious character of the vessel conditions in question. During his deposition, Maciel testified that photographs were taken of the incident site soon after his alleged injury occurred. Maciel later demanded production of the time-of-incident photos, which Noble had a difficult time locating, but was eventually able to produce. Maciel filed a motion for sanctions based on the missing time-of-incident photos. Among other things, Maciel argued that Noble did not diligently search for the time-of-incident photos and that he had been prejudiced by the failure to produce the photos. Maciel requested that the court enter an order striking Noble's pleadings. The trial court granted Maciel's motion for sanctions and the trial court signed a sanctions order requiring Noble to pay $136,498.05 in attorney's fees and expenses, excluded "staged photographs" taken subsequent to the date of the accident because those photos did not depict the deck as it actually was at the time of the incident; and struck Noble's defenses of "open and obvious" and "contributory negligence." The court found that Noble's failure to produce the time-of-incident photos compromised Maciel's ability to prove that the condition of the deck was unreasonably dangerous. In this separate proceeding, Noble sought mandamus relief from the trial court's sanction order, in the underlying case of Maciel v. Noble Drilling (Jim Thompson) LLC, striking two of Noble's defenses, and further seeking a reduction of monetary sanctions from $136,498.05 to the amount of $86,000. The sanctions were imposed following Noble's alleged 15-month delay producing photographs of an accident scene taken the day Maciel was injured on a Noble drilling rig. Noble argued that the trial court abused its discretion in striking its defenses and awarding over $50,000 in additional monetary sanctions that were unsupported by timely proof or the need to obtain discovery. Maciel contended that striking Noble's defenses does not amount to a "death penalty" sanction because the trial court specifically found that Noble did not present the court with any evidence that those sanctions being considered by the court would compromise Noble's ability to defend the case on the merits. The appellate court disagreed, noting the focus of the inquiry should not be the merits of the case; but on the alleged misconduct and the harm caused by the misconduct. Noble was not required to prove the validity of its pleaded affirmative defenses to preserve them for trial. Therefore, any failure to present evidence of those defenses at a sanctions hearing was not waiver of those defenses. Accordingly, the appellate court rejected Maciel's argument that Noble has acquiesced to striking these two pleaded defenses. The appellate court found that the trial court's sanction order was improper for two reasons. First, the order prevented Noble from presenting its affirmative defenses even though its sanctionable conduct had already been remedied. The trial court's order striking Noble's affirmative defenses foreclosed an avenue that would enable Noble to present evidence relevant to those affirmative defenses and support corresponding jury questions that may be requested by Noble. As such, it functioned as a death penalty sanction. Additionally, the death penalty sanction was improper because the primary purpose of discovery sanctions is to promote compliance and that purpose was satisfied without the necessity of the trial court's order. Noble also sought review of the $50,498.05 in additional monetary sanctions imposed that went beyond the $86,000 in sanctions Noble was not disputing. The appellate court refused to address the monetary sanctions as not subject to mandamus because they can be properly reviewed on appeal from a final judgment. Noble's mandamus petition was grant3ed in part and the trial court was ordered to vacate the portion of its order striking Noble's defenses of "open and obvious" and "contributory negligence." (Tex. 1st App., October 16, 2014) 2014 Tex. App. LEXIS 11478
I’M DREAMING OF A POT OF GOLD AT THE END OF A RAINBOW (CONT.)
JONES V. TIDEWATER INC. ET AL.
Jackson Jones filed suit against Tidewater, Inc., and numerous other defendants (although Jones only served Tidewater), alleging he sustained a head injury while unloading freight aboard Tidewater’s vessel. Jones also claimed that Tidewater violated OSHA rules in directing him to clean chemical storage tanks without protective gear, exposing him to toxic chemicals. Conveniently, Jones claimed amnesia which prevented him from recalling the incident until recently, along with exposure to exhaust fumes and other chemicals. Jones made claims under the Jones Act, the LHWCA, and alleged wrongful termination, discrimination, and civil rights violations. In 2005, Jones had filed suit alleging similar claims against Tidewater, which were dismissed with prejudice on the basis of prescription, and the judgment was affirmed by the appellate court [see February 2008 Longshore Update]. Tidewater moved to dismiss Jones’ most recently file claims, contending that his claims against it were barred by res judicata and that his most recent petition was merely a subsequent attempt to re-litigate the same claims that were already dismissed with prejudice in the earlier case. Tidewater also argued that Jones’ allegations failed to meet the federal pleading standard and could not survive a 12(b)(6) motion to dismiss. Applying the Oreck test to the pleadings, the court found that the nucleus of operative fact was the same in this action as that in the previous action, and principals of res judicata barred the present claims. The court also noted that all of Jones’ claims against Tidewater arose out of his employment, which terminated 35 years ago. As Jones had failed to specifically plead any new exceptions to prescription in his claims against Tidewater, his claims against Tidewater were prescribed under the law. Finally, the court concluded that Jones had failed to provide sufficient factual allegation to support his claims. Tidewater's Motion to Dismiss Based on res judicataand prescription was granted. (USDC EDLA, October 2, 2014) 2014 U.S. Dist. LEXIS 140144
JUDGE DARROW HASN’T HAD THE OPPORTUNITY TO DIGEST EN BANCMCBRIDE
IN RE: INGRAM BARGE COMPANY
Brandon Hall, an Ingram Barge Company employee, was allegedly injured while working on one of Ingram's barges. Hall was wrapping a mooring line to connect the barge to a metal pin on Lock and Dam 13, which is operated by the United States Army Corps of Engineers. The line snapped, striking Hall in the head and causing his claimed injuries. Ingram filed a limitation action, asserting admiralty jurisdiction and seeking to exonerate itself from liability for the accident or, alternatively, limit its liability to the value of its barge and pending freight. Hall answered and counterclaimed for unseaworthiness and Jones Act negligence, and demanded that these claims be tried by a jury. Ingram impleaded the United States. Ingram then moved to strike Hall’s jury demand, and, separately, to dismiss Hall's claims. The United States joined Ingram in both motions. Ingram and the United States argued that there was no right to a jury trial in a limitation action, and that Hall's claims for non-monetary losses did not state a claim upon which relief could be granted. The United States additionally argued that its statutory waiver of sovereign immunity requires a bench trial. The court rejected Ingram’s argument that, because a limitation action is an admiralty proceeding, both the limitation action and Hall's personal injury claims against Ingram should be tried without a jury. The court found it did not follow that, because Hall had no right to a jury trial in an admiralty proceeding, or that because limitation actions may be best tried without juries, Hall's claims should not be tried to a jury. Since Hall would have been entitled to have his Jones Act claim heard by a jury, he would also have been entitled to have his unseaworthiness claim heard by a jury, had he brought both in a civil action under federal question jurisdiction. Thus, the court concluded Hall was entitled to a jury on those issues. Hall acknowledged that he had no right to a jury trial on the limitation action itself. The court held that the limitation could and should be tried to the court, and the Jones Act and unseaworthiness claims to the jury, and that both would be tried in the same proceeding, in the interest of judicial economy and because the questions and evidence presented are likely to be substantially the same. The United States argued separately that Hall's jury demand should be stricken as to the United States because, insofar as it waives its sovereign immunity, it does so only for the purposes of a bench trial. The court pointed out the Suits in Admiralty Act, which waives sovereign immunity certain cases, simply withdraws sovereign immunity; it does not create anything. Merely because Hall's claims against Ingram are permitted to proceed with a jury did not mean that the United States' limited waiver of sovereign immunity for suits in admiralty permits it to be sued by means outside the scope of that waiver. Accordingly, all of Ingram's claims against the United States would be tried to the court and not to a jury. Ingram argued that Hall could not, as a matter of law, recover punitive damages or loss of consortium damages, or other non-pecuniary damages on either his Jones Act claim or his unseaworthiness claim, and that therefore, his claims must be dismissed pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted. Obviously, not having the benefit of yet reading the 5th Circuit’s recent en banc opinion in McBride, the court rejected Ingram’s argument, holding that Hall had stated a claim upon which relief could be granted because he could recover for loss of consortium and punitive damages on a theory of unseaworthiness under the general maritime law. Both Ingram's motion to strike jury demand, and the United States's response joining that motion, were granted in part and denied in part. Ingram's motion to dismiss, and the United States' response joining that motion, were denied. (USDC CDIL, September 29, 2014) 2014 U.S. Dist. LEXIS 136934
Updater Note: When Judge Darrow finally gets around to reading the 5th Circuit’s en banc opinion in McBride, I suspect she will be somewhat embarrassed.
BROKEN SHOWER SHOE DOES NOT EQUAL NEGLIGENCE OR UNSEAWORTHINESS
MYERS V. HERCULES OFFSHORE SERVICES, LLC
Gerrard Myers, a roustabout and Jones Act seaman, filed suit against Hercules Offshore Services, LLC, alleging that he injured his ankle while exiting a stainless steel shower aboard Hercules' vessel. He claimed that the shower was unreasonably dangerous, and his injury was caused by Hercules' negligence and the vessel's unseaworthiness because Hercules failed to provide shower mats or handrails in the shower. Myers was wearing flip-flops as shower shoes. Hercules’ manager testified that when he asked Myers what happened, Myers told him that his shoe broke and he slipped. Myers was asked if he wanted to go ashore to see a doctor, and Myers refused.
Myers later denied that he ever said that his flip-flops broke. After considering the evidence and testimony presented, the court found that Myers failed to establish either that Hercules' alleged negligence or the alleged unseaworthiness of its vessel caused the alleged accident and injury. Instead, the weight of the evidence led the court to the conclusion that Myers slipped and fell when his flip-flop broke, which was not attributable either to Hercules' alleged negligence or the alleged unseaworthiness of the vessel. Both witnesses testified that Myers told them and wrote in the accident report that his shoe broke as he was exiting the shower. Although Myers testified that he did not say that his flip-flop broke, both witnesses were adamant that there was no reason that the report would have indicated a broken flip-flop if that information had not been supplied by Myers. Further, the testimony at trial established that the vessel was stationary and secured to the water bottom at the time of Myer's accident. The testimony also established that the vessel did not have any noticeable sway in this position and that the showers were never used when the vessel was under tow. Further, the court noted that there are no regulations or other requirements that such a vessel have handrails in the shower. Thus, the vessel was not unseaworthy for lacking handrails or mats in the shower. The court concluded that Myers' fall was the result of his flip-flop breaking as he exited the shower and dismissed the case with prejudice. (USDC EDLA, October 17, 2014) 2014 U.S. Dist. LEXIS 148292
TOO MANY INCONSISTENCIES; TOO MANY LIES
GLAZE V. HIGMAN BARGE LINES, INC.
Higman Barge Lines, Inc. hired Frank Glaze as a relief captain. At that time, Glaze had worked on tugboats in various capacities since 1972. In 2010, Glaze was assigned to Higman's tugboat to work as a relief pilot. Glaze worked aboard various boats until October 1, 2013. Glaze failed to return to work after his hitch ended on October 1, 2013, and never reported any type of accident or injury to Higman during his employment. On August 30, 2013, Glaze was examined by a physician as part of his application to renew his captain's license. Glaze denied any physical injury or limitations, and the physician found that he did not to have any physical limitations. On September 5, 2013, Glaze saw a physician with complaints of right arm and back pain, but denied any recent injury. On October 2, 2013, Glaze saw a different physician complaining of knee pain, but again could not recall any specific injury, but that he had been achy. On October 22, 2013, Glaze applied to his insurance company for disability benefits, claiming that he was injured on July 25, 2013, while chipping with a needle gun. On December 9, 2013, Glaze filed this suit against Higman alleging that he was injured while working aboard their vessel on or about August 27, 2013, a date on which Glaze was off from work, and claiming that Higman was negligent under the Jones Act, provided an unseaworthy vessel, and was liable for maintenance and cure. The lawsuit was Higman's first notification of Glaze's claimed injury. Higman moved for summary judgment arguing that Glaze could not prove that he was injured in the service of a Higman vessel on any specific date as alleged in the complaint. Higman pointed out all of the inconsistencies in the dates on which Glaze claims to have been injured, the fact that Glaze never reported an injury to Higman or any physician during the time that he claims to have been injured, and that the one person Glaze claimed witnessed him using a needle gun, testified that he never saw Glaze use a needle gun in July or August 2013. Higman also argued there is no proof that it was negligent under the Jones Act or that it provided an unseaworthy vessel. The court found that Glaze had failed to create a genuine issue of material fact regarding any of his claims for negligence, unseaworthiness or maintenance and cure. Citing all of the inconsistences between Glaze’s complaint and his deposition testimony, the court found that Glaze could not pinpoint when the accident allegedly occurred and there is nothing to corroborate that he had an accident. The one person Glaze claimed saw him do the work, testified at his deposition that he never saw Glaze doing chipping work. The court held Glaze could not prove that he had any accident or suffered any injury, involving a needle gun while working aboard a Higman vessel, and Higman's motion for summary judgment was granted, as to all of Glaze's claims, which were dismissed with prejudice. (USDC EDLA, October 23, 2014) 2014 U.S. Dist. LEXIS 150973
COURT REFUSES TO TOLL LIMITATIONS STATUTE BASED ON ALLEGED AMNESIA
THE FISHING COMPANY OF ALASKA, INC. V. WATSON
Walter Wendell Watson allegedly suffered a physical injury in 2001, while he worked aboard one of The Fishing Company of Alaska, Inc.’s (FCOA) fishing vessels. FCOA eventually sought a declaratory order from the court stating that it owed no further maintenance and cure to Watson for his alleged 2001 injury. Watson alleged that he was still due maintenance and cure for continued medical issues arising from the 2001 injury, including physical symptoms that became known in 2008 and 2012, and for the ongoing PTSD he allegedly suffered as a result of the 2001 accident. Watson, who was proceeding pro se, also counterclaimed against FCOA for negligence. FCOA moved for summary judgment on Watson’s counterclaim, arguing that to the extent Watson sought to raise any counterclaims based on negligence, such claims were barred by the statute of limitations and should be dismissed. Watson opposed the motion, arguing that his counterclaims should be tolled because complete loss of memory resulting from his PTSD precluded him from bringing his claims earlier. Watson also brought a motion for severe sanctions, asking the court to strike an exhibit filed by FCOA in support of its motion, which referenced a prior criminal history for Watson, and asked the court to preclude FCOA from defending itself at all in this action moving forward. As an initial matter, the court noted that Watson was objecting to the introduction of a copy of a published decision in a former lawsuit Watson brought. The court noted that no actual evidence of any criminal history had been submitted to the court. More importantly, on motions for summary judgment the court makes no credibility determinations, and did not do so in this case with respect to Watson’s credibility or character. Finally, the court observed that Watson failed to produce any legal authority supporting the sanctions he requested. Turning to Watson’s counterclaim for negligence, the court noted that the running of the statute of limitations was apparent on the face of the complaint. With respect to Watson’s allegation that the statute of limitations should be equitably tolled because his amnesia (allegedly resulting from his PTSD) precluded him from bringing his claims sooner, the court found no legal basis for equitable tolling. Watson offered no legal authority to the contrary. Accordingly, his cause of action accrued at the time of the occurrence. Further, the medical records which Watson supplied to the court, while supporting a diagnosis of PTSD, did not provide any information with respect to Watson’s alleged memory loss or how it may have prevented him from acting on his personal injury claims. The court found that any counterclaims based on negligence had not been filed within the applicable statute of limitations, and there was no basis on which to toll the statute. Watson’s motion for sanctions was denied and FCOA’s motion for summary judgment was granted and Watson’s counterclaim was dismissed. (USDC WDWA, October 22, 2014) 2014 U.S. Dist. LEXIS 150083
COURT REFUSES TO INCREASE LIMITATION FUND BASED ON CONTRACT VALUE
IN RE: CAMPBELL TRANSPORTATION COMPANY, INC.
Campbell Transportation Company brought an action pursuant to the Limitation of Liability Act, seeking exoneration or limitation of liability after being sued by Raymond and Patricia Kirich on a theory of negligence. The Kirichs claimed that Kirich suffered injuries when he fell onto the gunnel of one of Campbell’s barges, while it was docked. At the time of the alleged incident, Kirich was an employee of Richard Lawson Excavating, assigned to unload gravel from the barge, pursuant to a contract between Campbell and Hanson Aggregates. Upon filing its limitation action, Campbell deposited as security the fair market value of the barge involved, and also provided an affidavit indicating that there was no pending freight at the time of the incident. The Kirichs moved to increase the limitation fund to include the entire value of the contract between Campbell and Hanson as pending freight, arguing that the relevant "voyage" consisted of the entirety of the towage services performed by Campbell under its contract with Hanson. Campbell opposed the motion, arguing that contract between itself and Hanson was in effect for multiple years, and provided that Campbell would transport barge loads of sand, gravel, and crushed stone for Hanson between various points and zones of origin and destinations. Importantly, the agreement provided that freight was considered fully earned when the tow was delivered to its destination. The court found that the master contract consisted of several separate and distinct voyages, rather than one overarching, multi-year voyage. As such, pending freight must be limited to the particular voyage at issue under the contract, not the entirety of the master transportation agreement. To include the entire value of the master transportation agreement as pending freight would be to increase the fund beyond the scope of the voyage. Turning to the relevant voyage here, the court found that Campbell’s barge was already docked two days prior to Kirich's accident. As such, the voyage already had ended by the time Kirich fell on the barge. Accordingly, there was no pending freight, and under these circumstances, the court refused to increase the limitation fund and the Kirichs’ motion was denied. (USDC WDPA, October 16, 2014) 2014 U.S. Dist. LEXIS 147290
COURT APPLIES THE “FLOTILLA DOCTRINE” IN LIMITATION CASE
CROSBY MARINE TRANSPORTATION, LLC. V. TRITON DIVING SVCS., LLC, ET AL.
Crosby Marine Transportation, LLC, filed a limitation proceeding arising out of an incident in which two of its tugs WHICH were transporting a barge, collided with a vessel owned and operated by Triton Diving Services, LLC. On the date of the incident, Mark Rottinghaus, who was an employee of Crosby, alleged that he sustained injuries to his head, neck and back as a result of the collision. Rottinghaus filed a Jones Act and general maritime lawsuit against Crosby and Triton in state court. Triton filed a cross-claim against Crosby in the state court action, alleging that Crosby was at fault for the collision. Crosby subsequently filed this limitation action in federal court pursuant to the Limitation of Liability Act. According to the Affidavit of Valuation of its tug, the value of the vessel immediately following the incident was $872,000.00. The freight pending at the time of the allision was $187,063.30. Simultaneously with the filing of its petition, Crosby filed an ad interim stipulation and posted security in the amount of its interest in the tug and pending freight together with interest at the rate of 6% per annum from the date of the stipulation and for costs, which the court approved. . Rottinghaus moved to increase security, pursuant to FRCP Supp. Adm. R. F(7), asserting that the amount of security provided by Crosby was inadequate because it reflected Crosby's interest in only one of two vessels that formed a "flotilla" under Crosby's common ownership, since the vessels were engaged in a common enterprise under a single command when the collision occurred. He further contended that the security provided was insufficient to satisfy the claims made by Rottinghaus and Triton in the limitation action. The court acknowledged that the flotilla doctrine requires, for limitation of liability purposes, the owner's tender of all of the vessels in the flotilla, or the value thereof, pending resolution of the underlying claims. Observing that both of Crosby’s tugs were both owned by the same owner, and both were engaged in a common enterprise, that is, towing the same barge, the court found that the flotilla doctrine applied. The motion to increase security was granted. The court ordered that both of Crosby’s tugs involved in the incident would be appraised by a court-appointed appraiser or, alternatively, the parties could stipulate and agree to the valuation of both vessels and the freight involved. (USDC WDLA, October 8, 2014) 2014 U.S. Dist. LEXIS 145808
LATE CLAIMANTS NOT ALLOWED TO JOIN LIMITATION ACTION (CONT.)
IN RE: MISS BELMAR II FISHING, INC.
This admiralty action arose out of the grounding of a ferry in the Virgin Islands. After the grounding, two companies, Miss Belmar II Fishing Inc. and Aquatic Management LLC, filed two separate limitation of liability proceedings, which were consolidated by the court. Thereafter, the court ordered that any pending suits or actions outside of the limitation of liability proceeding be stayed, and further enjoined the commencement of any new suits or actions outside of the limitation of liability proceeding. Ultimately resolved that motion by way of a consent order listing 61 claimants who had timely filed and one new claimant who was granted leave to file a late answer and claim, making the total number of claimants 62. Of the 62 claimants, 43entered stipulations of dismissal, leaving 19 pending claims on the docket. Over a year after the court entered an order of default, precluding the addition of new claimants to this litigation, proposed claimants filed a motion to set aside default and permit the late filing of answers and claims. After reviewing proposed claimants' submissions, the court refused to conclude that proposed claimants had shown cause for the delay, let alone good cause. They were on constructive notice of the suit. Even after they had actual notice, they took no action to join the suit despite the passage of many months. The motion filed by proposed claimants to set aside default and permit the late filing of answers and claims was denied [see April 2014 Longshore Update]. A subsequent motion to stay the limitation action and vacate entry of injunction was filed by a multitude of claimants, asking the court to grant relief from its prior order enjoining them from bringing separate state court actions on their claims. Claimants made various stipulations in their brief in support of the motions. Claimants did not dispute that there are multiple claimants; rather, they assert that the multiple claims can be addressed by stipulation, thus making a concursus unnecessary. However, the court observed that, under the stricture laid down by Gorman, such stipulations must be carefully examined. If they leave even the potential that the vessel owner may be exposed to liability in excess of the value of the vessel, the injunction must remain in force. The court noted that the complexity of the case, and the difficulty of fitting it within the single claimant exception through the use of stipulations, was readily apparent at oral argument. Overlying all of this was the further complication that there were two separate petitioners, two consolidated exoneration claims, and two separate funds. In this regard, Miss Belmar and Aquatic argued that they retained the right to bring indemnification claims against one another. The court found that, while the stipulations offered by claimants covered many potential claims, they did not cover them all, nor was it apparent from the record that all remaining claimants had agreed to participate in those stipulations. Because the court found that the stipulations were insufficient to convert the multiple claimant case into the functional equivalent of the single claimant exception, the request for relief from the stay was denied. (USDC DNJ, October 15, 2014)
Updater Note: Thanks to Alton Evans, Jr., of the firm Betancourt, Van Hemmen, Greco & Kenyon, LLC, Red Bank, NJ, for bringing this decision to my attention.
COURT REINSTATES LIMITATION STAY BASED ON INDEMNIFICATION CLAIM
IN RE: MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC
Marquette Transportation Company Gulf-Inland, LLC, as owner and operator of a towing vessel, filed a complaint seeking exoneration from or limitation of liability regarding any loss, damage or injury caused by a collision between its tug and a vessel owned by John Tran. The court subsequently issued an order that restrained, stayed, and enjoined the further prosecution of any and all actions arising from the aforementioned collision. After the court ordered the stay, claimants Susan Tran (individually and as a personal representative and widow of the decedent, John Tran, on behalf of herself and her minor child, Marsha Tran), Quoc Tran, Jeanie Tran, and Nancy Pham filed a stipulation agreeing that Marquette was entitled to litigate all issues relating to limitation of liability in federal court and waiving any claim of res judicatarelevant to any issue related to limitation of liability based on any judgment in any court other than this one. Claimants further stipulated that they would not seek or enforce any judgment in excess of the value of the tug and her freight pending the adjudication of the petition seeking limitation of liability. Finding that the stipulations adequately protected Marquette's right to seek limitation of its liability, the court lifted the stay for the limited purpose of permitting the aforementioned claimants to pursue an action against Marquette in Louisiana state court. After the court lifted the stay, the Tran claimants filed a petition for damages against Kirby Inland Marine, LP in Louisiana state court, alleging Marquette’s tug was towing two barges owned by Kirby when the accident at issue occurred. After receiving the petition, Kirby filed an answer and claim in the limitation action seeking indemnity and contribution from Marquette and refusing to agree or be bound by the Tran stipulations. Marquette moved to reinstate the court's prior order, restraining prosecution of any and all claims against Marquette arising out of the collision between its tug and the Tran vessel, contending that reinstatement was necessary because a new party, Kirby, a new claimant under the Limitation of Liability Act, had not filed stipulations that adequately protected Marquette's right to limitation. The court acknowledged that Kirby's indemnity and contribution claims jeopardize Marquette's statutory right to limited liability, noting that parties seeking contribution and indemnity are "claimants" within the meaning of the Limitation Act. As Kirby had not joined or otherwise agreed to be bound by the Tran stipulations, the court concluded that it must reinstate the stay to protect Marquette's "absolute" right to limit its liability. Marquette's motion to reinstate the stay was granted. (USDC EDLA, October 22, 2014) 2014 U.S. Dist. LEXIS 150189
NO AMBIGUITY FOUND IN INDEMNIFICATION PROVISIONS OF CONTRACT
GROGAN V. TRITON DIVING SERVICES, LLC, ET AL.
Jakarta Grogan alleged that he was injured, while he was working on a vessel offshore, as an employee of Tiger Rentals, Ltd. d/b/a Tiger Safety (Tiger). Named as defendants were W&T Offshore, Inc. and Triton Diving Services, LLC., who filed cross-claims for contractual defense and indemnity against each other. The claims of Grogan and an intervenor were settled with the defendants, and all other claims were dismissed. Therefore, the only claims remaining to be resolved by the court were the defendants' cross-claims for contractual defense and indemnity. Triton and W&T had entered into a contract by which Triton agreed to provide a dive support vessel, personnel, and equipment to support W&T's pipeline re-commissioning project. The contract incorporated by reference a Master Service Contract (MSC) between Triton and W&T, which contained the defense and indemnity provisions at issue. In order for the working environment aboard the pipeline platform to be returned to safe levels for the continuation of the de-watering process, safety and monitoring equipment had to be obtained and H2S monitoring and training for personnel had to be arranged. Tiger was recommended as the contractor to handle the H2S issues. Grogan, was employed by Tiger and was one of the technicians assigned to work on the H2S issue. Once Grogan arrived on the platform, a company representative for W&T on the vessel, gave Grogan his day-to-day instructions. Grogan's alleged injury occurred after his work on the job was completed and after he was advised by W&T that he would be leaving the vessel and going back to shore. Defendants later settled the claims of the Grogan and an intervenor. After reviewing the evidence, the court concluded that the indemnity provisions set forth in the MSC were not ambiguous. The language of the MSC contemplated that persons working on W&T's pipeline re-commissioning project would be classified as either members of the W&T Group or as members of the Contractor Group depending on whether they were the invitees on the Work site of W&T or Triton. Based on the facts of the case, the court concluded that Grogan was the invitee of W&T and not the invitee of both Triton and W&T. Therefore, Grogan, Tiger's employee, was a member of the W&T Group. Having reached this conclusion, it was the ruling of the court that W&T owed Triton indemnity for its defense costs and the amounts paid in settlement of Grogan's claims. Therefore, judgment was entered granting Triton's cross-claim against W&T and denying W&T's cross-claim against Triton. (USDC WDLA, October 23, 2014) 2014 U.S. Dist. LEXIS 150770
ANOTHER REMOVAL ACTION BITES THE DUST. COURTS ARE NOT BUYING RYAN.
BARTEL V. CENTRAL GULF LINES, INC.
Willard Bartel, the personal representative of the Estate of Eugenio Garcia, filed suit in state court, alleging that between 1945 and 1973, the decedent was employed by Central Gulf Lines, Inc., where he contracted and died of lung cancer as a result of asbestos exposure while working on vessels owned or operated by Central Gulf. Bartel brought causes of action under both the Jones Act and general maritime law, but did not demand a jury trial. Central Gulf removed the case to federal court, arguing that the court had subject matter jurisdiction under the admiralty jurisdiction statute, 28 U.S.C. §1333(1) and that removal was proper pursuant to 28 U.S.C. §1441. Bartel moved to remand his action to state court, asserting that removal was improper because his Jones Act claim was non-removable pursuant to 28 U.S.C. §1445(a) and his general maritime law claim was non-removable pursuant to the"saving to suitors" clause of 28 U.S.C. §1333(1). In opposition, Central Gulf argued that in light of the 2011 amendments to §1441, general maritime claims are removable and the assertion of a Jones Act claim does not prevent the removal of actions in which general maritime claims are alleged. The court noted that Central Gulf did not raise any specific statutory argument for why the court should find removal jurisdiction in the action. Instead, Central Gulf relied on recent decisions relying on the analysis in Ryan v. Hercules Offshore, Inc., which concluded that changes to the second sentence of §1441(b) (as it read prior to the 2011 amendments) removed the statutory basis for the non-removability of admiralty claims in the absence of another basis for jurisdiction. The court noted that four decisions in the district, allowing removal of general maritime claims under the admiralty jurisdiction statute, were distinguishable from the instant action. Here, the plaintiff had alleged a non-removable Jones Act claim. There was no allegation that the court had original federal question jurisdiction. Central Gulf did not argues that the Jones Act claim was improperly pled. Therefore, the court found that the Jones Act claim was not removable under §1445(a), and the general maritime claim was not removable under §1441©. The court declined to determine whether plaintiff's general maritime claim would be removable in the absence of the Jones Act claim. The magistrate judge recommended that the case be remanded to state court. (USDC MDLA, October 1, 2014 ) 2014 U.S. Dist. LEXIS 150196
ANOTHER REMOVAL ACTION BITES THE DUST. COURTS ARE NOT BUYING RYAN.
BARTEL V. CHAS. KURZ & CO., INC., ET AL.
Willard Bartel, the personal representative of the Estate of Edwards Rogers, Jr., filed suit in state court, alleging that between 1956 and 1992, the decedent was employed by Chas. Kurz & Co., Inc., Keystone Shipping Co., Crowley Maritime Corporation, and Marine Transport Lines, Inc., where he allegedly contracted and died of lung cancer as a result of asbestos exposure while working on vessels owned or operated by the defendants. Bartel brought causes of action for recovery against the defendants under both the Jones Act and general maritime law, but did not demand a jury trial. Crowley removed the case to federal court, arguing that the court had subject matter jurisdiction under the admiralty jurisdiction statute, 28 U.S.C. §1333(1) and that removal was proper pursuant to 28 U.S.C. §1441. Bartel moved to remand his action to state court, asserting that removal was improper because his Jones Act claim was non-removable pursuant to 28 U.S.C. §1445(a) and his general maritime law claim was non-removable pursuant to the"saving to suitors" clause of 28 U.S.C. §1333(1). In opposition, Crowley argued that in light of the 2011 amendments to §1441, general maritime claims are removable and the assertion of a Jones Act claim does not prevent the removal of actions in which general maritime claims are alleged. The court noted that Crowley did not raise any specific statutory argument for why the court should find removal jurisdiction in the action. Instead, Crowley relied on recent decisions relying on the analysis in Ryan v. Hercules Offshore, Inc., which concluded that changes to the second sentence of §1441(b) (as it read prior to the 2011 amendments) removed the statutory basis for the non-removability of admiralty claims in the absence of another basis for jurisdiction. The court noted that four decisions in the district, allowing removal of general maritime claims under the admiralty jurisdiction statute, were distinguishable from the instant action. Here, the plaintiff had alleged a non-removable Jones Act claim. There was no allegation that the court had original federal question jurisdiction. Crowley did not argues that the Jones Act claim was improperly pled. Therefore, the court found that the Jones Act claim was not removable under §1445(a), and the general maritime claim was not removable under §1441©. The court declined to determine whether plaintiff's general maritime claim would be removable in the absence of the Jones Act claim. The magistrate judge recommended that the case be remanded to state court. (USDC MDLA, October 1, 2014) 2014 U.S. Dist. LEXIS 150257
ANOTHER REMOVAL ACTION BITES THE DUST. COURTS ARE NOT BUYING RYAN.
BARTEL V. ALCOA STEAMSHIP COMPANY, INC., ET AL.
Willard Bartel, the personal representative of the Estate of Joseph Tague, filed suit in state court, alleging that between 1945 and 1992, decedent was employed by Alcoa Steamship Company, Inc., Crowley Marine Services, Inc., as successor by merger to Delta Steamship Lines, Inc., f/k/a Mississippi Shipping Co., Inc., Delta Steamship Lines Inc., and Waterman Steamship Corporation, where he allegedly contracted and died of lung cancer as a result of asbestos exposure while working on vessels owned or operated by the defendants. Bartel brought causes of action for recovery against the defendants under both the Jones Act and general maritime law, but did not demand a jury trial. Alcoa removed the case to federal court, arguing that the court had subject matter jurisdiction under the admiralty jurisdiction statute, 28 U.S.C. §1333(1) and that removal was proper pursuant to 28 U.S.C. §1441. Bartel moved to remand his action to state court, asserting that removal was improper because his Jones Act claim was non-removable pursuant to 28 U.S.C. §1445(a) and his general maritime law claim was non-removable pursuant to the"saving to suitors" clause of 28 U.S.C. §1333(1). In opposition, Alcoa argued that in light of the 2011 amendments to §1441, general maritime claims are removable and the assertion of a Jones Act claim does not prevent the removal of actions in which general maritime claims are alleged. The court noted that Alcoa did not raise any specific statutory argument for why the court should find removal jurisdiction in the action. Instead, Alcoa relied on recent decisions relying on the analysis in Ryan v. Hercules Offshore, Inc., which concluded that changes to the second sentence of §1441(b) (as it read prior to the 2011 amendments) removed the statutory basis for the non-removability of admiralty claims in the absence of another basis for jurisdiction. The court noted that four decisions in the district, allowing removal of general maritime claims under the admiralty jurisdiction statute, were distinguishable from the instant action. Here, the plaintiff had alleged a non-removable Jones Act claim. There was no allegation that the court had original federal question jurisdiction. Alcoa did not argues that the Jones Act claim was improperly pled. Therefore, the court found that the Jones Act claim was not removable under §1445(a), and the general maritime claim was not removable under §1441(c). The court declined to determine whether plaintiff's general maritime claim would be removable in the absence of the Jones Act claim. The magistrate judge recommended that the case be remanded to state court. (USDC MDLA, October 2, 2014) 2014 U.S. Dist. LEXIS 152168
COURT GRANTS MOTION TO TRANSFER
BASWELL V. YAZOO RIVER TOWING
Jonathan Baswell, a seaman, filed a complaint for damages against his employer, Yazoo River Towing, under the Jones Act and general maritime law, claiming that he slipped and fell while helping to transfer liquid fertilizer, via hose, between two barges and attributed his resultant right shoulder injuries to Yazoo’s negligence and the unseaworthiness of Yazoo’s vessel. Baswell sought to recover compensatory and punitive damages, plus maintenance and cure, interest, and court costs. Yazoo filed its answer to the complaint along with a motion to transfer the case to the United States District Court for the Southern District of Mississippi, pursuant to 28 U.S.C. §1404(a). Baswell opposed to motion to transfer, alleging that venue was proper in the current forum because the court enjoyed personal jurisdiction over Yazoo. Neither side contested that the Southern District of Mississippi also enjoyed subject matter and personal jurisdiction/venue over the instant matter and Yazoo. The court went on to find that the Southern District of Mississippi was clearly more convenient than the Western District of Louisiana, based upon both the public and the private factors in the case. After consideration of the relevant factors, the court found that at least five factors favored transfer to the Southern District of Mississippi, whereas, but one factor marginally favored retention. Accordingly, good cause supported transfer and the court granted Yazoo’s motion, ordering the case transferred to the United States District Court for the Southern District of Mississippi. (USDC WDLA, October 28, 2014) 2014 U.S. Dist. LEXIS 152555
FANE LOZMAN (THE FLOATING HOME GUY) STILL PREVAILING IN THE COURTS
LOZMAN V. CITY OF RIVIERA BEACH
Fane Lozman, proceeding pro se, moved to have the court reconsider that portion of the court's prior summary judgment order which disposed of Lozman’s1983 claim based on alleged equal protection violations. The City of Rivera Beach opposed the motion. In its original summary judgment order, the court had found that Lozman's equal protection selective enforcement claim failed because the summary judgment record does not contain sufficient evidence from which a reasonable person could infer that the plaintiff and other marina residents and lessees were similarly situated. At the time of the disposition on that claim, Lozman’s summary judgment papers referred to his own declaration for the proposition that other marina lessees were in arrears on their dockage fees, but that he was the only one singled out for enforcement of a maritime lien under the City's assertion of federal maritime jurisdiction over Lozman’s floating home and subsequent arrest, seizure and destruction of the structure. Lozman’s declaration cited the transcript of trial testimony provided in the federal admiralty proceedings to support this assertion, but the only page which appeared as an attachment to the declaration from that transcript was page 194, and this limited segment of the testimony did not contain any substantive testimony on the issue of other marina lessee's arrearages. In his motion for reconsideration, Lozman indicated that lapses in the clerk's scanning equipment resulted in frequent inadvertent gaps in documents which he manually submitted for filing with the court in the past, and that the omission of four additional pages of trial testimony in the admiralty proceeding was likely the product of such a scanning error. Having reviewed the omitted portions of trial testimony, the court found some competent evidence from which a reasonable trier of fact might conclude that similarly situated persons (other marina lessees in arrearage on their dockage fees) were treated differently from Lozman, thus establishing the central element of Lozman’s selective enforcement claim. Lozman claimed that he was treated differently from others similarly situated and that the City's motivation for that disparate treatment was a malicious intent to injure him and to punish him for the exercise of his First Amendment rights, contending he was singled out for unique regulatory and enforcement treatment based on a constitutionally impermissible animus. The court found that, even assuming, arguendo, the existence of variations in the safety or aesthetics of other marina vessels/structures at the time the City made a decision to pursue Lozman for collection activity, whether safety/aesthetic factors underlay the actual motivation behind the City's enforcement scheme or whether this explanation is offered as a pretext to justify discriminatory treatment of Lozman raises a genuine issue of material fact for determination by the finder of fact at trial. For summary judgment purposes, the court found adequate evidence in the record from which a jury might find the presence of "similarly situated" marina lessees who were treated differently from Lozman, thus creating a genuine issue of material fact on this first element of his selective enforcement Equal Protection claim. Lozman’s motion for reconsideration on the equal protection segment of the court's summary judgment order was granted and the court vacated that portion of its prior summary judgment order which granted the City's motion for summary judgment on the equal protection claim. (USDC SDFL, October 29, 2014) 2014 U.S. Dist. LEXIS 153095
Updater Note: Although not a maritime case, I found this case worthwhile to review. Lozman and the City of Rivera Beach appear to be still at each others throats. It’s also rare to see a court reverse itself and even rarer to see it done for a pro se plaintiff.
Quotes of the Month . . .“You are part of the world’s most feared and trusted force. Engage your brain before you engage your weapon.”--General James Mattis
“Demonstrate to the world there is ‘No Better Friend, No Worse Enemy’ than a U.S. Marine.” --General James Mattis
“Fight with a happy heart and strong spirit” --General James Mattis
Tom Langan
Risk Management Director
Weeks Marine, Inc.
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