April 2011 Longshore Update

April 2011

DRUG TEST ONE-STRIKE RULE FOR LONGSHOREMAN UPHELD

With one dissenting opinion, the US Court of Appeals for the Ninth Circuit ruled that the Pacific Maritime Association’s (PMA) one-strike rule, which eliminates from consideration for employment any applicant who tests positive for drug or alcohol use during the pre-employment screening process does not violate the Americans with Disability Act (ADA). Santiago Lopez first applied for employment as a longshoreman in 1997. At the time, he suffered from an addiction to drugs and alcohol. He failed the drug test, which was positive for marijuana. In 2002, Lopez underwent rehabilitation and became clean and sober. In 2004, he reapplied for employment as a longshoreman. PMA rejected the application because of their one-strike rule and the fact that Lopez had earlier failed a drug test. Santiago brought suit, claiming that the PMA violated the ADA and the FEHA by discriminating against him on the basis of his protected status as a rehabilitated drug addict. He argued that the one-strike rule facially discriminated against recovering or recovered drug addicts. Notwithstanding a dissenting opinion, the appellate court found that the triggering event for purposes of the one-strike rule was a failed drug test, not Lopez’s drug addiction. The record belied Lopez’s allegation that the PMA adopted the one-strike rule intentionally to exclude recovering and recovered drug addicts from its work force. A disparate impact claim also failed from a lack of evidence. The appellate court affirmed the dismissal of Lopez’s claim, holding that the triggering event for purposes of the one-strike rule is a failed drug test, not an applicant’s drug addiction.(9th Cir., March 2, 2011)2011 U.S. App. LEXIS 3923

5TH CIRCUIT WATERS DOWN ANDREPONT (CONT.)

In this rather bizarre ruling from the 5th Circuit Court of Appeals, James Carey was awarded a lower average weekly wage than that which the employer paid after the informal conference. James Carey was allegedly injured while working as a longshoreman for Ormet Primary Aluminum Corporation. Ormet voluntarily paid Carey benefits under the LHWCA based upon an average weekly wage (AWW) of $1,423.92. The ALJ later awarded compensation at a lower AWW than Ormet had voluntarily paid. As the requirement that Carey be awarded compensation greater than the employer paid or tendered had not been met, the ALJ denied the requested attorney fee. On appeal, the BRB affirmed the finding that the employer was not liable for Carey’s attorney’s fee pursuant to Section 28(b). Nevertheless, the appellate court cited Savannah Machine & Shipyard Co. v. Director, OWCP as being indistinguishable, where an ALJ awarded attorney's fees under §28(b) and the BRB affirmed, finding that the employer's resistance to the claim necessitated the efforts of his attorney, and holding that the employer was liable for the attorney fees [see January 2011 Longshore Update]. Here Carey moved the appellate court for an award of attorney’s fees for work performed before the court in connection with his successful petition for review of the decision of the BRB. The court cited Boland Marine & Mfg. Co. v. Rihner, for the proposition that it was bound by the prior panel rule, even though that cited case is factually distinguishable from the Carey case. Finding that it had the authority to award Carey attorney’s fees, notwithstanding the fact that Carey had completely failed to obtain any additional compensation, as required by §28(b), the court granted Carey’s motion for attorney’s fees in the amount of $14,706.25. (5th Cir, March 25, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 6194

SHIP REPAIR EXPERT OWED NO DUTY ON BEHALF OF UNITED STATES

Joel Green, an employee of North Florida Shipyard, Inc., was allegedly burned when a spark used to light his cutting torch ignited gas that had accumulated in the starboard aft peak ballast tank of a ship owned by the United States, which was undergoing a steel renewal project. Marine Transport awarded the contract to North Florida Shipyard. Marine Transport did not use any of its personnel to supervise the steel renewal project. Instead, Marine Transport hired Clyde Roberts, a ship repair expert, as the Special Port Engineer to oversee the project. Green complained that the United States, acting through its agent, had failed to ventilate Green's work space adequately to dispel gas that had leaked from his cutting torch. Green sued under §905(b) of the LHWCA. Following a bench trial, the district court found that Roberts was not an agent or a subagent of the United States and concluded that the United States, as a shipowner, did not owe any duty to protect Green. Green appealed the district court judgment, continuing to blame his injuries on the negligence of the United States. Green argued that Roberts's role in the steel renewal project established that he was an agent or subagent of the United States. Green attributes to the United States Roberts' involvement in the project and argued that the starboard aft peak tank was under the active control of the United States. In the alternative, Green argued that the United States had a duty to intervene to protect him. The appellate court concluded that the findings of the district court were not clearly erroneous, and agreed that the United States owed no duty to Green. The appellate court found that the record supported the finding of the district court that Green failed to prove that Roberts was an agent of the United States. The judgment in favor of the United States was affirmed. The court observed that Green had failed to introduce any evidence that the United States either knew that Marine Transport had hired Roberts or consented for Roberts to act on behalf of the United States. The United States had an agency relationship with Marine Transport, not Roberts. The record also supported the finding that Green failed to prove that Roberts was a subagent of the United States. The judgment in favor of the United States was affirmed. (11th Cir, March 22, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 5884

LHWCA DOES NOT PRECLUDE APPLICATION OF §200 OF NY LABOR LAW

Elsayed Eldoh sued defendants owners and contractor for injuries suffered while working on a barge, alleging violations of NY State Labor Law §§200, 240(1), 241(6), and negligence. The trial court denied, in part, the owners' summary judgment motion, denied the contractor's summary judgment motion, and granted Eldoh’s summary judgment motion as against the contractor. The owners and the contractor appealed, arguing that Eldoh’s NY State Labor Law claims were preempted by §905(b) of the LHWCA. The appellate court disagreed. Although the appellate court conceded that the barge was a "vessel" within the meaning of the statute, the statute did not apply to the contractor since it was neither the owner of the vessel, nor Eldoh’s employer. Accordingly, the §§240(1), 241(6) claims insofar as asserted against the contractor were not preempted by the LHWCA. In addition, contrary to the contention of the owners, the LHWCA did not preempt causes of action alleging common-law negligence and violation of §200. Consequently, federal preemption did not defeat the causes of action alleging common-law negligence and violation of Labor Law § 200 insofar as asserted against both the owners and the contractor. Although an employee of the owners never instructed Eldoh how to go about performing his tasks, he admitted that it was his job to assure the contractors worked in a safe manner, and to make sure they followed safety rules and regulations. Nevertheless, the appellate court concluded that neither the owners nor the contractor were entitled to summary judgment on the §200 claims. The order of the trial court was affirmed. (NY Sup. Ct, 2nd App, February 22, 2011) 2011 N.Y. App. Div. LEXIS 1481

NO TURNOVER DUTY OWED TO EXPERIENCED SHIP REPAIRER

Alan Bartholomew, a ship repair worker, who allegedly sustained asbestos-related injuries while working as a marine machinist, filed a complaint seeking damages for his asbestos exposure against numerous defendants, including SeaRiver. He claimed that SeaRiver was liable for vessel owner negligence under §905(b) of the LHWCA. sued Seariver Maritime, Inc. under the LHWCA. However, at the time of Bartholomew's deposition he was unable to name a single SeaRiver vessel where he performed work. The trial court granted SeaRiver’s motion for summary judgment. Bartholomew appealed. The appellate court concluded that Bartholomew failed to raise a triable issue concerning whether asbestos-containing insulation and airborne asbestos was a danger that an expert and experienced ship repair contractor would have reasonably been expected to encounter during the relevant period. Rather than establishing a triable issue of material fact as to whether asbestos-containing pipe insulation and or airborne asbestos fibers constituted an unreasonably dangerous hazard, the evidence supported the conclusion that by 1977, an expert and experienced ship repair contractor should have reasonably expected to encounter asbestos aboard the vessels it repaired, and, as a consequence, should have been mindful of the dangers of asbestos exposure, taking the necessary and required safety precautions. The mere presence of the alleged asbestos-containing products and airborne asbestos fibers, standing alone, could not constitute a breach of the turnover duty of safe condition. The record disclosed no latent hazard for which a warning would have been required. The trial court’s judgment was affirmed. (Cal. 1st App, March 16, 2011) 2011 Cal. App. LEXIS 301

WHO CARES IF IT’S THE WRONG DIAGNOSIS; HE’S PSYCHIATRICALLY

ITT Industries, Inc. hired Stephen Kamal to work as a heavy equipment mechanic in Kuwait. During that two-year period Kamal worked in that capacity, his co-workers and supervisors allegedly verbally harassed him, though he was never physically injured. Because of this harassment, Kamal obtained psychiatric counseling in Kuwait for an extended period until he was repatriated back to the United States for care. Upon returning to the United States Kamal filed a DBA claim for temporary total disability benefits and for medical expenses, asserting that harsh and stressful work conditions caused him severe depression and also aggravated or accelerated a post-traumatic stress disorder ("PTSD"). An ALJ conducted a hearing, where Kamal testified that soon after his arrival in Kuwait, his coworkers began calling him names such as "terrorist," "Taliban," "al Qaeda," and "Hezbollah" on an almost daily basis because of his Arabic heritage. His supervisors did not try to stop the name-calling, and Kamal testified that he did not report the behavior because his own supervisor participated in it. Following the hearing, the ALJ issued a decision in Kamal’s favor, awarding continuing TTD benefits and medical benefits. ITT appealed the ALJ's decision to the BRB, which issued a decision and order affirming the ALJ's opinion, thereby making the ALJ's decision the final decision of the BRB. Having exhausted its administrative remedies, ITT filed an action for judicial review of the BRB's decision, arguing that: (1) the ALJ erred as a matter of law by granting disability benefits because the DSM-IV diagnostic criteria for PTSD and depression were not established; and (2) the ALJ's decision was not supported by substantial evidence. The district court began its review by noting that the ALJ found Kamal’s testimony credible and consistent with the reports he made to his psychiatrists, concluding that Kamal met the first prong of his prima facie case, i.e., showing that a psychological injury occurred. The ALJ then found that Kamal met the second prong of his prima facie case, i.e., that his psychological injury arose out of his employment. The ALJ conceded that ITT did presented sufficient evidence rebutting Kamal’s prima facie case, based upon psychiatric expert testimony that Kamal did not have PTSD but, instead, that he likely had schizophrenia. In examining and weighing the evidence in its entirety the ALJ noted that every psychiatrist who examined Kamal noted that his clear symptoms of depression and anxiety could be caused by his coworkers' harassment. The ALJ gave little weight to the opinion of ITT’s psychiatric expert and concluded that Kamal suffered from depression and PTSD because of his coworkers' harassment while he was employed by ITT in Kuwait. The district court disagreed with this conclusion, because the psychiatric diagnoses upon which the ALJ relied were unsupported by the evidence, Accordingly, the court found that the ALJ's opinion that Kamal had PTSD was not supported by substantial evidence. ITT’s argument on this point was sustained. Nevertheless, the court held that, when making legal determinations, rigid use of psychiatric diagnostic tools such as the DSM-IV need not be established or even discussed by the ALJ in every instance. Accordingly, the court overruled ITT’s first argument, that the BRB erred as a matter of law in ruling that the ALJ is not required to use the DSM-IV in assessing the existence of a psychiatric injury. Next, the court noted that ITT had failed to present any argument against Kamal’s diagnoses of depression other than that these diagnoses were made without applying the criteria of the DSM-IV. As the court had already rejected the need for strict application of the DSM-IV criteria, the court found that the ALJ's determination that Kamal was inflicted with depression as a result of the harassment by his coworkers during his employment within Kuwait was supported by substantial evidence. Accordingly, ITT’s argument to the contrary was overruled. Finally, the court overruled the ALJ's award of medical benefits PTSD and for foot-related workplace injuries, concluding that latter was nothing more than a typographical error. ITT’s motion was denied in all other respects and the compensation award, as modified was affirmed. (USDC SDTX, March 1, 2011) 2011 U.S. Dist. LEXIS 21721

COURT FINDS THAT IRONWORKER QUALIFIES AS A JONES ACT SEAMAN

Lary Abshire and Jacob Kinchen, iron workers, who were employed by Boh Bros. to work on the new I-10 twin span bridge, were allegedly injured when the crew boat in which they were traveling from the work site to shore at the end of the day hit a survey tower that was placed by the Traylor Bros., Inc., Kiewet Southern Co., & Massman Construction Co., A Joint Venture. At the time of the accident, Kinchen, who was not a licensed captain, was operating the boat. Both Abshire and Kinchen claimed that they were seaman, and entitled to recover damages under the Jones Act and the general maritime law. They argue that they fit the definition of seamen because they contributed to the work of the vessel, spent the majority of their time at work on a vessel, and their work was maritime in nature. Boh Bros. contended that Abshire and Kinchen were not seaman, but rather, were longshoremen. Boh Bros. argued that Abshire and Kinchen were iron workers who were responsible for placing girders on top of the bridge. Boh Bros. contends that they were assigned to work on the bridge, not a specific vessel, and that any work they did on the vessel was more akin to traditional longshore or stevedoring work, rather than that of seamen. Boh Bros. paid Abshire and Kinchen all damages that it contends were due under the LHWCA. Abshire and Kinchen filed motions for partial summary judgment in which they sought rulings that they were Jones Act seamen. Boh Bros. filed cross motions, arguing that the court should find that Abshire and Kinchen are longshoremen. The court also concluded that the testimony demonstrated that there was a disputed issue of material fact regarding how much time Abshire would have spent on the vessel, precluding summary judgment regarding whether Abshire met the Chandris duration test. Considering the "total circumstances" of the Abshire’s and Kinchen’s employment, the court found that they both had a substantial connection to the vessel in nature, and met the second prong of the Chandris test. Kinchen’s motion for partial summary judgment as to seaman status was granted, while Abshire’s motion was denied. Boh Bros. cross motion to hold both employees to be longshoremen was denied as well. (USDC EDLA, March 15, 2011) 2011 U.S. Dist. LEXIS 26358

COURT CERTIFIES CLASS ACTION AGAINST MOTHER MAERSK

John Padilla, who worked as a chief cook for Maersk aboard one of its vessels, brought a complaint on behalf of himself and a proposed class of similarly-situated seamen against Maersk under general maritime law for unearned wages. Padilla claims that he and other similarly situated seamen suffered illness and injury in the service of Maersk's vessels and that Maersk paid him unearned wages until the end of voyage, along with maintenance and cure, but failed to pay overtime wages that Padilla otherwise would have earned in service aboard Maersk's vessel. In an earlier case [see April 2009 Longshore Update] the court granted summary judgment in favor of Padilla, finding, among other things, that an injured seaman is entitled to his average overtime earnings in the unearned wage component of his maintenance and cure remedy that "the shipping articles signed by Padilla did not modify or limit Padilla's entitlement under general maritime law to overtime pay; and that, because there were no genuine issues of fact as to the amount of overtime that Padilla performed prior to the onset of the injury, the date of Padilla's discharge, or the date Padilla's voyage ended, there was no factual dispute as to the computation of damages. In this action, Padilla moved to certify a class of at least 347 seamen who were paid unearned wages, maintenance and cure until the end of their voyage or the date of maximum medical improvement, but were not paid overtime wages that they would have otherwise earned in their service aboard Maersk vessels. Maersk filed a brief in opposition to Padilla’s Motion for Class Certification, arguing, among other things, that because the only issue to be tried is the issue of damages the cases should be decided on an individualized basis. The court rejected Maersk’s argument that the matter should digress into a multitude of individual trials, finding that this would fly in the face of the class action objective of avoiding a multiplicity of different rules of law, and allowing for the adjudication of nominal claims not worth the time and expense of individual lawsuits. Maersk also moved for entry of final judgment pursuant to Fed. R. Civ. P. 54(b) as to the prior summary judgment order, so it could take an interlocutory appeal. The court determined that class certification was appropriate, after finding that the claims against Maersk met the preconditions of Rule 23(a) of numerosity, commonality, typicality and adequacy. Padilla’s application to certify a class was granted. The court also found that Maersk’s debatable assertion that a reversal on appeal could avoid much wasted effort in discovery, motions and trials, fell far short of establishing that the case qualified as an infrequent harsh case where there existed some danger of hardship or injustice through delay which would be alleviated by immediate appeal. Maersk’s Motion for Entry of Judgment was denied. (USDC SDNY, October 26, 2010) 271 F.R.D. 444; 2010 U.S. Dist. LEXIS 114437

DISBARRED ATTORNEY BATTLES FOR FEE IN LONGSHORE DEATH CASE (CONT.)

Ruby Emanuel’s husband, James Emanuel, was employed as a longshoreman at the Brooklyn Navy Yard. While working on a dry-docked vessel, he suffered a severe accident that left him a quadriplegic, and ultimately caused his death.[see June 2004 Longshore Update]. Prior to filing for bankruptcy protection, the Rudy Emanuel retained an attorney to prosecute a wrongful death action. Although Emanuel’s attorney obtained a jury verdict of $25,000,000, the court eventually entered a reduced judgment awarding the Emanuel $7,613,566. That judgment was reversed on appeal, shortly before Emanuel’s attorney, Kenneth Heller, was disbarred for actions in an unrelated case. The Appellate Division vacated the judgment and remanded the case for a new trial. It noted that the decedent "fell squarely within the longshoreman category and squarely outside that of seaman." The estate trustee hired new counsel (J&M) to prosecute the wrongful death action and the bankruptcy court approved the trustee's proposal to settle the case for $3,650,000 and denied Emanuel’s first attorney's request for attorney fees. Substitute counsel had requested that prior counsel turn over his files related to the action, but he refused. The first attorney was eventually held in contempt, and sentenced to imprisonment based on his refusal to turn his files over. Emanuel’s first attorney hired counsel and filed a motion for withdrawal of reference of the case to the bankruptcy court, and after the district court denied that motion, he filed a motion for an order transferring jurisdiction to the district court. The bankruptcy court found that the motion to transfer was frivolous, and it ordered Emanuel’s first attorney and his counsel to pay attorney fees and costs the trustee's attorneys incurred to defend that motion. The court awarded the Chapter 7 trustee's law firm fees in the amount of $4,849, and the Chapter 7 trustee's special counsel fees and expenses in the amount of $5,890.75 to compensate them for time and expenses they incurred in defending the first attorney's motion to transfer. The motion to transfer was frivolous because it was based on arguments the first attorney made in his motion to withdraw reference that the district court rejected [see April 2010 Longshore Update]. In this most recent matter, Heller appealed from the Court order denying his claim for legal fees and expenses and moved for an order directing J&M to disclose the name and contact information of the mediator in the settled state court action. In response, J&M filed a motion for sanctions. Heller also sought to stay decision of the appeal pending decision of a motion for an evidentiary hearing. The court found no basis to disturb the Court's decision refusing to award attorney's fees to Heller. The court also concluded that the Court's refusal to consider evidence that Heller attempted to offer was not error. The judgment of the Court was affirmed. The court also denied Heller’s motion for an order directing J&M to disclose the name and contact information of the mediator who assisted in negotiating the settlement of the debtor's wrongful death action in the state court. Finally, J&M’s motion for sanctions and Heller’s application for a stay and motion for an evidentiary hearing were denied. USDC SDNY, March 26, 2011) 2011 U.S. Dist. LEXIS 31983

COURT INTERPRETS BROADENED APPLICATION OF THE CARMACK AMENDMENT

OneBeacon Insurance Company, on behalf of its insured cargo owner Professional Products, Inc. (PPI), brought suit against Haas Industries for loss of cargo during an international shipment to the United States. The district court agreed with Haas Industries that, because the cargo owner was not identified in the bill of lading, it had no standing to sue. OneBeacon appealed the rulings that it lacked standing to sue under the Carmack Amendment and, alternatively, that Haas limited its liability. The appellate court reversed, holding that the 1978 change to the Carmack Amendment broadened the group of parties entitled to recover under a receipt or bill of lading. The US Court of Appeals for the Ninth Circuit ruled that a shipper who was not named in the bill of lading, but who owned the cargo, has standing to bring suit under the Carmack Amendment. Because the insured was a party having an interest in the shipment, it fit within the bill of lading's definition of "shipper." Because PPI had standing to sue, OneBeacon as its subrogee had standing to sue. Haas, however, effectively limited its liability through the same bill of lading by complying with all requirements of the revised Hughes test. Haas only had to provide copies of its rates at the request of the shipper. Haas provided evidence that it established standard rates that incorporated the limitation of liability. The bill of lading expressly limited Haas’s liability in the absence of a higher declared value. By signing the bill of lading without listing a declared value, the parties agreed to the limitation of liability. The appellate court ruled that the carrier in this case was entitled to limit its liability because the shipper had never requested a copy of the rates applicable to the shipment. The court reversed the district court's standing determination. The court affirmed the determination in favor of the limitation of liability. The court remanded the case so that the district court could enter judgment in favor of defendant in an amount consistent with the limitation of liability. (9th Cir., March 9, 2011) 2011 U.S. App. LEXIS 4603

FAILURE TO INSPECT AT UNLOADING DOOMS DAMAGE CLAIM

The US Court of Appeals for the First Circuit affirmed the district court’s granting of summary judgment in favor of defendant insurers on a property damage claim filed by plaintiff cargo owner. Plaintiff purchased fourteen large underground storage tanks. The tanks were manufactured in Dallas and were shipped by barge from Houston to San Juan. Plaintiff purchased insurance from defendants to cover any damage that might occur from the start of loading operations in Houston to berthing of the barge in San Juan. The insurance did not cover damage incurred during the unloading or during transportation to the ultimate destination. The tanks were inspected at the start of loading and found to be satisfactory. The tanks were not inspected when the barge berthed in San Juan. Damage was later discovered and plaintiff asserted that the damage must have occurred during transit on the barge. In affirming summary judgment for the insurers, the court held that plaintiff had adduced no significantly probative evidence to make out a genuine issue of material fact to substantiate its claim. (1st Cir., March 11, 2011) 2011 U.S. App. LEXIS 4964

DOHSA BOUNDARY REMAINS AT THREE NAUTICAL MILES FROM U.S. SHORES

The personal representatives and successors in interest (appellants) to three U.S. Navy crewmen killed in a helicopter crash brought an interlocutory appeal challenging the trial court’s grant of a motion to dismiss and a motion for judgment on the pleadings in favor of appellees based on its conclusion that appellants’ state law claims were preempted by the Death on the High Seas Act (DOHSA).The appellants’ original complaint alleged that defects in the helicopter and its component parts caused the accident, and sought damages for wrongful death. The complaint asserted causes of action for strict products liability, negligence, failure to warn, breach of warranty, and wrongful death and survival under California law and general maritime law. The parties disagreed as to whether DOHSA applied to the area between three and twelve nautical miles from United States shores, where the helicopter accident occurred. The district court issued a ruling granting the appellees’ motion to dismiss, holding that DOHSA preempts appellants' state law and general maritime causes of action for wrongful death. More specifically, the district court held that DOHSA applies to non-commercial aircraft accidents "beyond three nautical miles from shore," and that Presidential Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988) ("Proclamation 5298"), which extended the territorial sea of the United States from three to twelve nautical miles from shore, did nothing to alter DOHSA's applicability. In its holding, the district court relied on then-Judge Sotomayor's dissent in the seminal case of In re Air Crash Off Long Island, New York, on July 17, 1996, 209 F.3d 200 (2d Cir. 2000), and declined to follow the majority opinion. Pursuant to appellants' request, the district court certified the decision for interlocutory appeal, as a case of first impression in the 9th Circuit. Appellants argued that "high seas," as it is used in DOHSA's text, was a political term that excluded all United States territorial waters. Appellees, on the other hand, argued that "high seas" was a geographical boundary referring to all waters beyond the low-water mark. A plain reading of the statutory text led to the conclusion that the boundary beyond which DOHSA applied remained at three nautical miles from U.S. shores. A Presidential Proclamation extending the territorial sea of the United States from three to twelve nautical miles did not change DOHSA. Although DOHSA uses the term "high seas" to describe the scope of the enacted remedial scheme, there was no indication that this term was meant to incorporate into DOHSA the independent and fluid political concept of U.S. territorial waters. The district court’s judgment was affirmed. (9th Cir, March 14, 2011) 2011 U.S. App. LEXIS 4998

CONTRIBUTORY NEGLIGENCE FOR FAILURE TO DISCLOSE PRIOR INJURIES (CONT)

Orlando Ramirez had a long history of injuries and medical care relating to his back and neck and had made workers’ compensation claims for those injuries at least three times. Ramirez filled out an application to work for American Pollution Control Corporation (APCC) as a deckhand, failing to disclose any of these prior claims, despite being specifically asked if he had prior worker’s compensation claims. Ramirez also denied a prior medical history involving the back or neck. Less than a month after being hired, Ramirez allegedly slipped and fell, claiming injuries to the neck, shoulder, elbow and wrist. Ramirez filed suit against APCC, asserting claims for unseaworthiness and negligence under the Jones Act. After a bench trial, the court entered a judgment for Ramirez in the amount of $1800, after reducing the injury award by 40% for contributory negligence, because of Ramirez’s concealment. The court’s judgment was upheld on appeal [see March 2010 Longshore Update]. Ramirez subsequently brought suit for maintenance and cure, alleging that APCC had failed to meet its obligation to provide maintenance and cure for the injuries Ramirez suffered in the same accident. APCC sought summary judgment on Ramirez’s maintenance and cure claim, arguing that Ramirez was collaterally estopped from relitigating whether he suffered his injuries while working for APCC, and alternatively arguing that Ramirez’s concealment of his prior injuries barred his maintenance and cure claim pursuant to the McCorpen doctrine. As Ramirez did not dispute that a connection existed between the withheld information and the injury complained of in the lawsuit, the court concluded that even viewing the evidence in the light most favorable to Ramirez, APCC had met its burden to establish the McCorpen defense. The court granted APCC’s motion for summary judgment and dismissed Ramirez’s claim [see September 2010 Longshore Update], declining to address APCC’s collateral estoppel argument. Ramirez timely appealed, arguing that testimony in the case created a genuine dispute over the materiality of Ramirez’s preexisting injuries. The appellate court disagreed, finding that the testimony clearly showed that Ramirez’s injuries were material for purposes of the McCorpen defense because Ramirez’s disclosure of his previous injuries would have either prevented his employment, or at least delayed it, preventing his having been present at the time of the accident. The appellate court affirmed the judgment of the district court. (5th Cir, March 14, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 5079

PLAINTIFF ENTITLED TO A JURY TRIAL ON HER ADMIRALTY CLAIM

Melinda Luera, was allegedly injured while working for Cooper/T. Smith Stevedoring Co., Inc. as a cargo checker. According to her complaint, was performing stevedoring activities for the M/V VOC ROSE, which was moored to the dock. Luera alleges that the M/V ALBERTA passed the VOC ROSE in close proximity and at an excessive rate of speed, causing the VOC ROSE to surge. The surge in turn caused one of the mooring lines to rupture. The ruptured line struck Luera, causing her alleged injuries. Luera brought claims against the two vessels, in rem, asserting admiralty jurisdiction. In the same complaint, Luera also brought claims against the owners and managers of those vessels, in personam, asserting diversity jurisdiction and demanding a jury trial. The district court, over the defendants’ objection, ordered that all of Luera's claims, including her in rem admiralty claims, be tried together before a jury. The defendants requested that the district court certify its order for appeal. Finding that its order granting Luera a jury trial on all of her claims involved a controlling question of law as to which there was substantial ground for difference of opinion, the district court certified its order for appeal under 28 U.S.C. § 1292(b). On appeal, the defendants argued that Luera is not entitled to a jury trial because she has elected to proceed under the admiralty rules by virtue of the in rem claims in her complaint. The US Court of Appeals for the Fifth Circuit initially found that the defendants were not prejudiced by Luera’s amended complaint and held that the district court did not abuse its discretion in permitting Luera to amend her complaint and withdraw any Rule 9(h) election she may have made. The appellate court then proceeded to consider whether a jury trial is available in a case asserting in rem admiralty claims against two vessels in the same complaint as in personam claims premised on diversity jurisdiction. The court noted that it had not previously addressed the specific issue of whether a plaintiff automatically makes a Rule 9(h) election to proceed under the admiralty rules when the plaintiff specifically asserts only diversity jurisdiction for one claim in the same complaint as a separate claim cognizable only under admiralty jurisdiction. The appellate court observed that Luera had clearly expressed her intent that her claims against the in personam defendants were premised on the district court's diversity jurisdiction, rather than its admiralty jurisdiction, and held that Luera did not make a Rule 9(h) election to proceed under the admiralty rules for those claims. The court went on to conclude that the mere presence of admiralty claims in the same complaint as claims premised on diversity jurisdiction does not preclude a jury trial. The court found that the U.S. Supreme Court’s holding in Fitzgerald was controlling, and that all of the circuits that have addressed the issue have concluded that, under Fitzgerald, admiralty claims may be tried to a jury when the parties are entitled to a jury trial on the non-admiralty claims. The district court was left with two options: try the case partially to the jury and partially to the bench, or try the entire case to the jury. As the district court recognized, Fitzgerald counsels that when one of a plaintiff's claims carries with it the right to a jury trial, the remaining claims, though premised on admiralty jurisdiction, may also be tried to a jury when both arise out of one set of facts. The appellate court affirmed the district court’s ruling, holding that where the claims arise out of one set of facts, only one trier of facts should be used for the trial. The court went on to note that the practice of trying admiralty claims to the bench is simply one of custom and tradition and held that tradition cannot trump Luera's constitutional right to a jury trial for her non-admiralty claims. (5th Cir, March 7, 2011) 2011 U.S. App. LEXIS 4424

APPELLATE COURT AFFIRMS RULING THAT U.S. VESSEL WAS UNSEAWORTHY

Frank Drapela was allegedly injured while working as a bosun on board a vessel assigned to the Ready Reserve Force, a component of the National Defense Reserve Fleet. The vessel was under the control of the Maritime Administration and managed and operated by Keystone Shipping Services, Inc. Drapela claimed that he sustained injuries to his spine secondary to repeated activity that stressed his neck, while pounding D-rings l with a sledgehammer. Drapela filed suit alleging negligence under the Jones Act and unseaworthiness under general maritime law. After a two-day bench trial, the district court rejected the Jones Act negligence claims because the employer had no notice that the method being used to loosen the D-rings (including tool selection) was unsafe. On the issue of unseaworthiness, the district court found that the government did not provide an adequate crew of sufficient manpower to perform the tasks required and that the vessel was unfit because inadequate tools were made available to Drapela to free the 165 frozen D-rings within the time he thought he had to complete the work. Because the purpose of the vessel was to carry cargo for the military, the court found that the D-rings were necessary for that mission and were unfit for that purpose in their rusted state. The government appealed the district court’s finding of unseaworthiness, contending that the condition of the D-rings frozen to the deck was not an unseaworthy condition that caused Drapela's injury. The government argued that to find legal causation based on the frozen D-rings is tantamount to holding that whenever a shipboard component is unseaworthy and requires repair to make it functional, liability results if a seaman is injured in the course of repair. The appellate court ignored the government’s proximate cause argument, noting that the district court expressly found the vessel unseaworthy because of an inadequate crew and inadequate tools to perform the task. The appellate court then examined the records and concluded that there was sufficient evidence to support the district court's finding that the assignment to Drapela to physically free up 165 D-rings in a limited period of time was unreasonably difficult for one person to perform. The record also supported the findings that the tools provided to Drapela to perform the task were inadequate and that the method chosen to perform this task was unsafe. The court held that each of these findings supported the district court's conclusion that the vessel was unseaworthy and the unseaworthy condition caused Drapela’s alleged injury, affirming the district court's judgment. (5th Cir, March 22, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 5975

EMPLOYER MAY NOT MAKE MAINTENANCE & CURE CONTINGENT ON IME

Tuyen Thanh Mai, an employee of American Seafoods Co. LLC (ASC), allegedly injured her left knee while off-loading 40-pound boxes of frozen seafood from a Northern Hawk, LLC fishing vessel. A box supposedly slid from an incline conveyor and struck Mai in her left knee. Mai was eventually diagnosed with a degenerative medial meniscus with a probable tear. Mai eventually underwent a left knee arthroscopy and medial meniscectomy without complication. Alleging no improvement after her initial surgery, Mai subsequently underwent a second surgical procedure for a complex tear of the medial meniscus. Mai continued to alleged discomfort and her physician eventually prescribed a gym membership to develop strength in her lower left leg. At that point ASC ended maintenance and cure payments, contending that it was unclear whether anything Mai was currently doing was curative, and contending that the medical evidence indicated that her treatment is palliative in nature. After Mai’s physician indicated that she was a candidate for r a total knee replacement, ASC conceded that such surgery would be curative in nature and, should Mai undergo such surgery, it would be covered by maintenance and cure. A little over six month after ASC had suspended maintenance and cure benefit, Mai opted to proceed with the total knee replacement procedure. ASC insisted that Mai undergo an IME prior to its approval of surgery, as part of its continuing investigation of Mai’s maintenance and cure claim. Mai’s attorney instructed her not to attend the IME, so ASC filed a declaratory judgment action in federal district court. Mai then filed this action in state court for damages under the Jones Act and general maritime law. ASC later dismissed the federal action. Mai eventually underwent the IME and ASC consultant agreed that the surgery was a reasonable treatment option. ASC approved surgery, but refused to pay maintenance for a portion of the retroactive period. on January 22, 2008. At the end of January, ASC paid maintenance for the period from May 18, 2007, to June 30, 2007, and from January 1, 2008, to January 16, 2008, but refused to pay maintenance for the period from July 2007 to December 2007. Mai underwent surgery on February 4, 2008. A bench trial resulted in judgment in Mai's favor. The court found that the steps taken by ASC after the knee replacement had been authorized were not reasonable, and concluded that ASC’s conduct and refusal to pay maintenance and cure was willful, persistent and unreasonable. The court awarded Mai $4,600.00 in back maintenance, $10,000.00 in compensatory damages, $35,000.00 in future general damages, $75,000.00 in past general damages, $56,317.00 in future loss of income, $108,192.00 in past loss of income, and $11,612.24 in attorney fees and costs. ASC appealed contending the trial court applied the wrong legal standard when it determined that ASC owed Mai back maintenance and that its wrongful failure to timely pay maintenance and cure was unreasonable, willful and persistent. ASC also challenged the sufficiency of the evidence for the court's award of compensatory damages and attorney fees. The appellate court began by noting that Mai’s treating physician had never opined that Mai had reached maximum cure. Additionally, the court found that ASC did not dispute Mai's need for further medical treatment but claimed to be demanding an IME to explore the availability of alternative treatment less expensive than surgery. When Mai declined the IME, ASC took the position that Mai had waived any right to maintenance and cure until her submission to an IME. ASC continued to refuse to pay for this period even after its IME physician agreed that the proposed knee replacement surgery was "a reasonable thing to do. ASC argued that its right to investigate Mai's claim allowed it to demand that Mai attend an IME before it paid additional maintenance and cure, contending that Mai waived her entitlement to maintenance during the time she failed to cooperate with its IME request. The appellate court rejected ASC’s argument, finding that reported maritime law decisions provided little support for ASC’s claim that the scope of its investigation goes so far as to allow a shipowner to avoid maintenance and cure liability for failure to attend an IME. The court observed that absent the lack of any challenge to the qualifications and expertise of Mai’s physician, it had difficulty understanding how the requested IME would have provided sufficient information to support a denial of the requested surgery. In light of the deference given to a seaman under Vaughn, the requested IME would likely be insufficient to support a denial of the treatment proposed by the seaman's treating physician. The court concluded that ASC withheld payment for vital medical treatment pending an IME. It claimed to be searching for cheaper alternative treatment but actually intended to develop expert testimony for anticipated litigation. The appellate court concluded that this conduct frustrates the goals of general maritime law and invited uncertainty, delay, and litigation. The appellate court held that an IME could not be required where, as here, the seaman established her prima facie burden, the vessel owner agreed to pay maintenance and cure, the owner did not question the need for some course of medical treatment or the expertise of the treating physician, and the owner recognized the prescribed course of treatment as curative in nature. Turning to ASC's challenge to the award of compensatory damages and attorney fees, the appellate court found that the trial court could reasonably conclude from the evidence that the true reason for ASC’s challenge to Mai’s proposed surgery was a desire to develop expert testimony for anticipated litigation, rather than any serious question about Mai's need for the TKR. Because ample evidence supported the trial court's findings, the appellate court affirmed the judgment in all respects, including the finding that ASC wrongfully withheld maintenance in an arbitrary, willful, and persistent manner. (Wash. 1st App, March 14, 2011) 2011 Wash. App. LEXIS 615

COURT COMPELS IME NOTWITHSTANDING SEAMAN’S CLAIM OF ALLEGED BIAS

Felix Barras alleged that he was a seaman and a member of the crew of a D&L Salvage, L.L.C. vessel when the vessel sank and he was allegedly injured while in the course and scope of his employment duties. Barras filed suit against D&L, alleging that he suffered serious, permanent, and disabling physical and psychological injuries as a result of the sinking of the vessel, which he alleged were caused by the negligence of D&L or the unseaworthiness of the vessel. As part of its investigation of Barras’s claim, D&L requested Barras to submit to an IME by its chosen medical expert, an orthopedic surgeon. Barras objected, arguing that D&L’s consulting physician was not likely to render an unbiased opinion of Barras's physical condition. D&L moved to compel the IME under FRCP 35(a)(1). The court initially observed that Barras placed his physical condition in controversy when he filed his complaint and alleged that he was injured when the vessel sank. Barras had already been examined by his own physicians, two well-known plaintiff go-to doctors, one of whom had recommended that Barras undergo an anterior cervical discectomy and disc fusion. The court concluded that the issue of whether that surgical recommendation was reasonable in light of Barras’s alleged injuries or causally connected to subject incident were matters that D&L were entitled to explore by having Barras undergo an IME. The court held that D&L had demonstrated both that Barras's physical condition was in controversy and that there was good cause for an IME. Accordingly, D&L’s motion to compel Barras to attend the requested IME was granted. (USDC WDLA, March 15, 2011) 2011 U.S. Dist. LEXIS 32532

COCAINE-HEAD UNABLE TO MAKE HIS CASE BEFORE JUDGE FALLON

Joseph Coleman alleged that he sustained injuries while he was employed by Omega Protein, Inc. onboard one of its vessels. Coleman claimed that he woke up from sleep and went to the bathroom and as he was stepping out of the bathroom, he passed out and hit the threshold of the doorway and then the floor. Coleman filed suit seeking recovery under the Jones Act for Omega’s alleged negligence and under general maritime law for the alleged unseaworthiness of the vessel. Coleman also asserted his right to maintenance and cure and seeks, to the extent that Omega has willfully denied him the requisite maintenance and cure, appropriate punitive damages and attorney's fees. Omega moved for partial summary judgment on Coleman’s claims of Jones Act negligence and unseaworthiness, arguing that Coleman cannot point to any evidence that it was negligent, that the vessel was unseaworthy, or that any negligence or unseaworthiness caused his injury. Citing evidence that Coleman tested positive for cocaine during his post-accident drug screening, and evidence that the consumption of cocaine can cause an individual to pass out, Omega also asserted that Coleman was contributorily negligent. Coleman disputed Omega’s assertion of contributory negligence and argued that summary judgment would be premature because discovery had not been completed. The court rejected Coleman’s argument that the motion must be denied because the period for discovery had not come to an end, noting that Coleman had the opportunity to perform discovery for several months, yet had failed entirely to specify, let alone preliminarily sketch, his theories of liability and to identify evidence supporting those theories. The court granted Omega’s motion for partial summary judgment and dismissed Coleman’s Jones Act and unseaworthiness claims with prejudice. (USDC EDLA, March 15, 2011) 2011 U.S. Dist. LEXIS 26351

I’M STUCK IN MEXICO. CAN WE DO MY DEPOSITION BY VIDEO?

Jesus Moreno filed a lawsuit, alleging that he was employed by Omega Protein, Inc. as a fisherman, when he allegedly sustained a back injury due to Omega's alleged negligence and the alleged unseaworthiness of the fishing vessel he was working on. During the discovery phase of the case, Omega propounded requests for admissions to Moreno, but Moreno’s responses were unverified. Moreno failed to appear for a properly noticed deposition or respond to interrogatories or requests for production. It was eventually determined that Moreno lived in Mexico and had told his counsel that he is unable to return to the United States legally. Omega moved to dismiss Moreno’s complaint. Although the court acknowledged that Moreno’s attorney had diligently tried to represent his client and maintain contact with him, Moreno had also been made aware by his counsel of the necessity for Moreno to participate in the prosecution of his Case without success. The court found that Omega had been prejudiced by the delay in prosecution of Moreno’s case, by being unable to depose Moreno or to determine whether there were witnesses to the alleged accident. Omega’s motion to dismiss was granted and Moreno’s claims were dismissed with prejudice. (USDC WDLA, March 22, 2011) 2011 U.S. Dist. LEXIS 31266

SHOOTING NOT AN INTENTIONAL TORT, BUT NEGLIGENCE STILL ATTACHES

Amanda Beech brought a Jones Act suit for wrongful death, individually and as tutrix and guardian of her minor child, seeking recovery against Hercules Drilling Company, L.L.C. for the wrongful death of her husband Keith Beech, who died after he was accidentally shot by the handgun of co-worker, Michael Cosenza. The widow’s other claims for punitive damages and unseaworthiness had previously been dismissed by the court on summary judgment in favor of Hercules. Cosenza brought a small handgun aboard Hercules vessel, which was contrary to Hercules’ company policy. Cosenza was aware of Hercules’ prohibition against weapons and did not intentionally violate that policy; instead he discovered the gun in a pocket while going through some laundry he had brought onboard. However, Cosenza did not tell anyone that he inadvertently brought the handgun on board, which he had kept hidden in his locker, until he brought it out to show Beech one evening. As Cosenza attempted to sit down with the gun in front of Beech, his arm bumped into a part of the couch and the handgun accidentally discharged. The bullet struck Beech's arm and then traveled into his head. Beech died approximately thirty minutes later and apparently did not undergo any conscious pain or suffering as the result of being shot. Initially, Cosenza panicked, threw the handgun overboard and fabricated a story about what happened. However, within one hour Cosenza admitted the truth about his role in the accident. There were no other witnesses to the shooting, and there was no evidence that there had been any type of disagreement or ill feeling between Cosenza and Beech. As an initial matter, the court found that the shooting was entirely accidental. The court also noted that, although the decedent was on his time off, he was nonetheless onboard the vessel and subject to the call of duty at the time he was shot. The court found that this was a negligently-inflicted injury facilitated by the knowing violation of a company safety rule. The court further found that Cosenza, who negligently inflicted the fatal shot, was acting in the course and scope of his employment for purposes of attaching vicarious liability to Hercules under the Jones Act. No comparative negligence was assigned to the decedent. The court awarded damages in the sum of $969,329 fairly to the widow and her minor son, as well as $150,000 for loss of household services and $75,000 for loss of nurture and guidance for the minor child until age eighteen. (USDC EDLA, March 24, 2011) 2011 U.S. Dist. LEXIS 30570

SEAMAN SHOOTS DOWN HIS LIABILITY ARGUMENTS AT DEPOSITION

Nicholas Williams was employed by International Construction Group, LLC (ICG) as a welder foreman and member of the crew of a derrick barge, which was owned and operated by ICG. Williams alleged that when lifting a pad eye he immediately felt an onset of back pain. Williams eventually filed suit, alleging that his injuries sustained in lifting the pad eye were caused by the negligence and/or strict liability of his employer. ICG moved for a summary judgment ruling that it did not breach its Jones Act obligations and that the barge was not unseaworthy. In support of its motion, ICG relied primarily upon the deposition testimony of Williams himself, particularly Williams’ admission that he was in a position of authority when he decided to lift the pad eye on his own. The court noted that Williams was basing his Jones Act claims upon allegations of insufficient crew. However, Williams’ own deposition testimony contradicted his allegations. Considering Williams’ own deposition testimony, under the applicable Jones Act negligence standard, as well as the applicable case law, the court found that summary judgment denying Williams’ Jones Act claims was appropriate. The court concluded that Williams chose to move the pad eye on his own even though he could have sought out assistance, either from the crew-members present or the available equipment, or used an available pipe which did not require assistance at all. Any negligence contributing to Williams’ injuries was on the part of Williams himself, not ICG. As he did under the Jones Act, Williams also argued that the lack of a full crew and proper equipment rendered the vessel unseaworthy. The court concluded that neither a full crew or any other equipment was necessary for Williams to carry out his assigned task. Considering causation for unseaworthiness is stricter than that for Jones Act negligence, the court held that the vessel was not unseaworthy. Williams’ claims were dismissed with prejudice and summary judgment was granted in favor of ICG. (USDC EDLA, March 23, 2011) 2011 U.S. Dist. LEXIS 30132

LACK OF CREDIBILITY & COMPLAINTS = DENIAL OF MAINTENANCE & CURE

Floyd Badeaux sued Magnolia Fleet, LLC under the general maritime law, alleging that he suffered injuries to his back, neck, spine, ribs, arm and mind when he fell between a deck barge and a tug while attempting to board the latter vessel. Badeaux also alleged that the vessel was unseaworthy. Badeaux’s complaint sought maintenance and cure and general damages in the amount of $4,000,000. The case was bifurcated and tried to the bench solely on the issue of maintenance and cure. Badeaux had a prior history of a work-related neck injury. When he was initially treated, following his most recent fall into the water, Badeaux made no complaints about a back or neck injury. Badeaux was diagnosed with one non-displaced fractured rib, a forearm contusion, and a head abrasion, which the treating physician described as mild. After the incident, Badeaux continued to work at Magnolia Fleet for approximately two weeks, never complaining of pain and his employer took him at his word that he was fine. Badeaux was later fired for cause and threatened reprisals. Badeaux returned to work for another company for approximately a month, when his physical condition allegedly deteriorated. Magnolia Fleet first learned of Badeaux’s alleged injuries when served with his complaint. When Magnolia Fleet learned that Badeaux had passed a physical capacities profile. At trial, Badeaux contended that he is entitled to maintenance and cure because the neck and back injuries that he sustained and the neck and back pain that he now experiences resulted from his accident. Magnolia Fleet disputed this contention and argued that even if Badeaux received his injuries while working for it, the court should bar him from receiving maintenance and cure because of his willful misconduct in fraudulently concealing his pain and injuries from Magnolia Fleet and for violating its injury-reporting policy. The court found that Badeaux was not entitled to maintenance and cure from Magnolia Fleet because the injuries that he sustained during his alleged fall were not the cause of his alleged neck and back pain. The court placed great weight on the lack of medical attention for approximately two months after the accident. There was no evidence that plaintiff sought medical attention during his 12 days of employment at Magnolia Fleet after the accident or during his subsequent employment. The court also took issue with Badeaux’s credibility. The court held that the great weight of the evidence introduced at trial led to its conclusion that no compensable back or neck injury occurred, was aggravated by or manifested itself while Badeaux was in the service of Magnolia Fleet's vessel. Accordingly, the court held that Badeaux was not entitled to maintenance and cure from Magnolia Fleet. (USDC EDLA, February 25, 2011) 2011 U.S. Dist. LEXIS 25799

IT’S NOT OFTEN WE SEE A RESULT LIKE THIS OUT OF A CALIFORNIA COURT

Patrick Vaughn filed an action seeking damages under the Jones Act an general maritime law for an alleged back injury he suffered while he was a member of the crew of a United States vessel, operated by Matson Navigation Company. Vaughan claimed he was injured while the crew of the vessel was involved in the task of "switching out" four life raft canisters on the vessel and contended the United States was liable for damages because (1) Matson failed to perform a "job hazard analysis," and (2) the vessel's boatswain Vaughn to "mule haul" the canisters rather than use a forklift. The United States, on the other hand, contended that Vaughn was not injured while aboard its vessel, or at least not while moving life raft canisters. At the bench trial of the case, the court noted that the testimony of the various witnesses differed significantly in material respects and that there was almost no aspect of the evolution of the operation on which there was agreement. The evidence did demonstrate that Vaughn attended a safety meeting on board the vessel, which included the topic of back injury and slips trips and falls. The court also noted that Vaughn had used a forklift earlier in the operation to move canisters and found that Vaughn had failed to establish that he was told not to use the forklift later in the operation. The court concluded that Vaughn could have used a forklift to move the canisters if he wanted to and did not need to ask permission from anyone to do so. The court also found that the vessel was properly manned and properly equipped. Based upon all the evidence the court held that there was no negligence on the part of the United States, or any of its agents or employees. The vessel was fit for its intended purpose and no unseaworthiness of the vessel caused, or contributed in any manner, to Vaughn’s alleged injuries. Instead, the court found that Vaughn’s damages, if any, were caused by his own failure to use proper lifting techniques and his decision to move the canister without the help and equipment provided to him. The court found that Vaughn had failed to meet his burden of proving negligence or unseaworthiness and dismissed the claim. (USDC CDCA, March 1, 2011) 2011 U.S. Dist. LEXIS 21156

COURT REJECTS DJ ACTION IN FAVOR OF PLAINTIFF’S CONVENIENCE

Mike Hooks, Inc. filed a complaint for declaratory judgment against, Cedric Eskridge, acknowledging its obligation to furnish maintenance and cure to a seaman injured in the service of its vessels, but alleging that Eskridge had thus far failed to provide sufficient information regarding his alleged back injury, leading Mike Hooks to filed the instant declaratory action for this court to determine if Eskridge's injuries were sustained in the course and scope of his employment with Mike Hooks, and/or if Eskridge has attained maximum medical improvement, thus relieving Mike Hooks of any further obligation to provide maintenance or cure payments. A little more than a month later, Eskridge filed suit against Mike Hooks, Inc., also in federal court (but a different division), pursuant to the Jones Act and general maritime law seeks damages and maintenance and cure. Eskridge moved to dismiss Mike Hooks’ DJ action because of his later filed Jones act suit. Eskridge also argued that Mike Hook's DJ action was a preemptive action which the Fifth Circuit sharply criticizes and routinely dismisses. Mike Hooks moved to consolidate the later filed suit into its DJ action, arguing that the two cases involve common questions of law and fact, and that consolidation will avoid unnecessary costs and delays. While the court declined to find that Mike Hooks has a pattern of filing preemptive declaratory actions and noted that it was not persuaded that Mike Hooks’ DJ was preemptive, the court nevertheless held that inequities existed which prevented it from allowing the DJ plaintiff to gain precedence in time and forum. The court found that, because Eskridge's choice of forum is to be "highly esteemed" and it appeared more convenient for the case to be tried in the division of Eskridge's choice, judicial economy would indeed be wasted if the court proceeded with the DJ action. Eskridge's motion to was granted, and Mike Hooks’ the motion to consolidate was denied. (USDC WDLA, March 9, 2011) 2011 U.S. Dist. LEXIS 24720

BAD ARGUMENTS AND LACK OF RECORDS DEFEAT SUMMARY JUDGMENT

This Jones Act negligence claim arose from an alleged ankle injury sustained by Jerome Bruce while he was employed by RCS, LLC, during an attempt to board a crewboat to travel offshore. Bruce worked as a supervisor to a tank cleaning crew employed by RCS, which provided services to various third party oil rigs. On the day of the alleged injury, one of RCS's tank cleaning crews was to take a boat offshore to the to perform a job for W&T Offshore, Inc. The court had previously granted W&T’s unopposed motion for summary judgment. RCS moved for summary judgment, arguing that Bruce could not qualify as a seaman. Bruce opposed RCS’s summary judgment motion, arguing that he meets the first prong of the Chandris test as his job as a cleaning technician contributed to the function of the vessels on which he performed his duties. RCS argued that Bruce’s duties aboard these non-RCS vessels were strictly limited to tank cleaning and related services and never contributed to the function of the vessel or the accomplishment of its mission. The court noted that neither party cited any case law to support their respective positions. Considering the evidence with all reasonable inferences in the light most favorable to the non-moving party, the court held that there existed a genuine issue of fact regarding whether Bruce’s duties as a tank cleaning technician contributed to the function of the vessel(s) on which they were performed or to the accomplishment of their mission. The court also noted that it was unable to reach an analysis of the substance of any temporal connection between Bruce and a vessel (or a fleet of vessels) as neither party had provided records of Bruce’s entire work history with RCS. The court denied RCS’s motion for summary judgment. (USDC EDLA, March 1, 2011) 2011 U.S. Dist. LEXIS 20423

COURT REFUSES TO BIFURCATE CURE ISSUE OR ORDER REQUESTED SURGERY

Larry Williams allegedly injured his back while working for Southern Towing Company. Williams’ original treating orthopaedic surgeon did not believe that surgery was indicated. However, after a little doctor shopping, a subsequent treating orthopaedic surgeon recommended a lumbar fusion. Williams demanded a lumbar fusion as cure. Southern Towing requested an evaluation by Williams’ original treating physician, who recommended facet blocks and see what results occurred before recommending surgery. Williams filed a motion to sever his maintenance and cure claim and have it bifurcated from that of his Jones Act and unseaworthiness claims and heard on an expedited basis. Southern Towing responded, pointing to the absence of any medical opinion, either that of Williams’ original treating physician or an IME, agreeing with the Williams’ position that lumbar fusion is currently indicated. The court held that Williams had failed to explain why Southern Towing should be required to pay for a lumbar fusion on the unilateral say-so of his current treating orthopedist or why the case should be set for trial on the cure issue without Williams first cooperating in obtaining a second opinion. Furthermore, as trial was already set for May 2011, the court found that bifurcating trial would not significantly advance the resolution of the cure issue. Williams’ motion to sever was denied. (USDC SDAL, February 25, 2011) 2011 U.S. Dist. LEXIS 19049

COURT ORDERS SEAMAN TO UNDERGO RECOMMENDED EMG

Youssof Saleh filed suit against American Steamship Co. claiming damages under the Jones Act for injuries he allegedly sustained while working on one of American’s vessels. Saleh claimed that he slipped on board the ship and allegedly suffered a back injury with radiculopathy. Following a physical examination, American’s medical requested that Saleh undergo a electromyogram ("EMG") study, however, Saleh refused comply. American moved to compel Saleh compliance with the recommended diagnostic study. The magistrate judge found that the request for the EMG was supported by good cause and ordered Saleh to appear for the requested EMG. Saleh objected to the magistrate judge's ruling, arguing the magistrate erred in not addressing his argument that he should not be required to undergo an EMG until American had reimbursed certain of his unpaid medical bills. The court concluded that the magistrate judge did not err and refused to allow Saleh to sidetrack the progress of his litigation, refusing a valid medical exam which was first requested almost a year ago, over a reimbursement dispute which was not properly before the court in the first place. The court also rejected Saleh’s objection that the request for the EMG was not supported by good cause, finding that Saleh claimed that he suffered injury to his spine and nervous system, putting his radicular complaints squarely at issue. The court affirmed the magistrate judge's order that Saleh undergo the EMG. (USDC EDMI, March 21, 2011) 2011 U.S. Dist. LEXIS 28651

TYPE OF CHARTER MAKES THE DIFFERENCE WITH RESPECT TO LIABILITY (CONT)

Luis Limon, Manuel Olivarez, and Porfirio Montalvo, employees of Unit Texas Drilling, were on a work boat owned by Berryco Barge Lines, LLC, traveling to a drilling rig owned by Kaiser-Francis Oil Company. While traveling to the rig the work boat struck an unlit barge, bounced off the barge and struck an unmanned manifold platform owned by SL Production Company, L.L.C. and maintained by Kaiser-Francis. The plaintiffs allegedly sustained injuries as a result of the collision/allision. One of the defendants, Garber Brothers, Inc., sought summary judgment dismissing the claims asserted against it by the plaintiffs, and by third-party plaintiff, Berryco. In a prior decision, the court found that the record evidence was insufficient to determine, as a matter of law, the precise nature of the charter agreement between Inland Barge and Garber for the barge. The court also found that the record showed that as a matter of law, Garber had a bareboat charter arrangement with Brammer Engineering, if Garber Brothers had bareboat chartered the barge from Inland Barge. Finally, the court found that the summary judgment record provided an inadequate basis to find, as a matter of law, that Garber could or could not be liable for the absence of lights on the barge when the incident occurred. Garber’s motion for summary judgment was denied [See November 2008, February 2010 and September 2010 Longshore Updates]. In its motion for reconsideration, Garber Brothers identified additional evidence that it asserted shows that, as a matter of law, it bareboat-chartered the barge from Inland Barge Rentals. In response to Garber’s motions, Berryco argued that the evidence was still insufficient to establish a bareboat charter as a matter of law. Berryco emphasized that the summary judgment evidence is as consistent with a time charter as a bareboat charter. As to liability, Berryco responds that even under a bareboat charter of the barge, Garber Brothers can still be held liable for its negligence in chartering an unlit barge and for negligence per se for failing to comply with the General Prudential Rule of the Inland Navigation Rules and other regulations requiring vessels to be lit. The court found that the undisputed evidence in the expanded summary judgment record shows that Inland Barge and Garber Brothers agreed to a bareboat charter. The undisputed evidence also showed that Garber Brothers could make improvements on the barge for its own purposes without permission; and had done so. Garber Brothers's motion for reconsideration was granted and its motion for summary judgment was granted as to Garber Brothers's assertion that it chartered the barge bareboat to Brammer Engineering and as to Garber Brothers's liability for claims based on the OB-819's unseaworthiness and denied as to negligence. Similarly, Inland Barge's motion for summary judgment was granted in part as to Inland Barge's assertion that it chartered the barge bareboat to Garber Brothers and as to Inland Barge's liability for claims based on the OB- 819's unseaworthiness, and denied as to the negligence claim against Inland Barge. (USDC SDTX, March 7, 2011) 2011 U.S. Dist. LEXIS 22293

ARBITRATION AGREEMENTS CONTINUE TO BE UPHELD IN CRUISE INDUSTRY

Adolfo Arzu Martinez, a seaman, was allegedly injured during his employment aboard a Carnival Cruise Lines vessel brought a Jones Act and general maritime action in state court, alleging negligence, unseaworthiness, failure to treat or provide adequate medical care, and failure to provide maintenance and cure. Martinez served as a cabin steward for Carnival, performing duties such as transporting luggage for passengers and alleged back pain associated with his assigned duties. Carnival removed Martinez’s action to federal court, arguing that Martinez’s claims were governed by identical arbitration provisions contained in two separate employment agreements and therefore federal question jurisdiction existed. Martinez filed a Motion for Remand, seeking to remand this case back to state court in its entirety pursuant to Thomas. Carnival moved to compel arbitration, arguing Martinez’s claims must be compelled to arbitration pursuant to the employment agreements, the United Nations Convention on the Enforcement and Recognition of Arbitral Awards, and the Eleventh Circuit's decision in Bautista. Martinez argued the arbitration agreements’ requirement that he arbitrate his Jones Act claim in Panama, pursuant to Panamanian or Bahamian law, would strip him of his statutory rights under the Jones Act and thus would be contrary to public policy. Martinez further argued that the Court may not sever the arbitration provision or compel arbitration of all of his claims under U.S. law. The court found that Martinez must arbitrate all of his claims pursuant to the employment agreements, because the four jurisdictional prerequisites identified in Bautista were undeniably present in this case. The court noted that nothing in Thomas overturned Bautista, suggested all arbitration provisions in seamen's employment contracts were void, or implied that such contracts were not covered by the Convention. The court also found the Convention's "public policy" affirmative defense did not apply in this case so as to void the arbitration provisions contained in the employment agreements. Carnival’s motion to dismiss and compel arbitration was granted, and the parties were directed to arbitrate Martinez’s claims, in the manner and location described in the employment agreements and pursuant to Carnival's stipulation as to the application of U.S. law to Martinez’s Jones Act claim. Martinez’s motion to remand was denied. (USDC SDFL, March 8, 2011) 2011 U.S. Dist. LEXIS 22904

Quotes of the Month . . .“The most erroneous stories are those we think we know best -- and therefore never scrutinize or question.” --Stephen Jay Gould

“If you will just start with the idea that this is a hard world, it will all be much simpler."--Louis D. Brandeis

“A man will be imprisoned in a room with a door that's unlocked and opens inwards; as long as it does not occur to him to pull rather than push.”--Ludwig Wittgenstein

Tom Langan

Corporate Risk Manager

Weeks Marine, Inc.

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