April 2016
Notes From Your Updater - Signal Mutual Indemnity Association, Ltd. and co-sponsors extend readers an invitation to join them in Seattle, Washington for one of the premier annual maritime conferences. This one is entitled, “In Search of the 21st Century Longshoreman: The Broadening Boundaries of Jurisdiction under the Act” This premier educational experience is co-sponsored by Northwest Longshore Administrators Association, National Association of Waterfront Employers, Longshore Claims Association, and Shipbuilders Council of America. The conference will take place Monday, May 23, 2016 through Wednesday, May 25, 2016 at the Fairmont Olympic Hotel, 411 University Street, Seattle, WA 98101. Follow the highlighted links to View Event Fees, View Event Summary and View Event Agenda. The registration deadline is Wednesday, May 25, 2016, but this is a well-attended conference and early registration is strongly suggested.
On March 21, 2016, the U.S. Supreme Court denied the petition for rehearing file in the case of Cooper v. Director, OWCP [Northrop Grumman Shipbuilding, Inc.], Docket No. 15-6630 [see June 2015 Longshore Update]. This case involved a pro se claimant, Francyne Cooper, who was trying to have her Section 8(i) settlement under the LHWCA set aside or modified. Cooper’s petition for certiorari had been previously denied on January 11, 2016.
On March 7, 2016, the U.S. Supreme Court denied the petition for writ of certiorari Eason v. Huntington Ingalls Industries, Inc., Docket No. 15-551 http://media.ca11.uscourts.gov/opinions/pub/files/201411793.pdf[see July 2015 Longshore Update], urging denial of the petition for certiorari, arguing that a claimant who is receiving scheduled compensation for a permanent partial disability cannot receive additional compensation for a temporary partial disability due to the same injury. The original petition for certiorari was filed in the case on October 29, 2015 [see December 2015 Longshore Update].
On February 29, 2016, the U.S. Supreme Court denied the petition for writ of certiorari in the case of Escobar v. Celebration Cruise Operator, Inc., Docket No. 15-371 [see May 2015 Longshore Update]. The questions presented were: 1. Whether an arbitration provision in an employment contract can require an indigent employee to pay for the costs of arbitration? 2. Whether seafarers' contracts of employment are exempted from the application of Title 9, the Federal Arbitration Act, including Chapter 2 of the Title which implemented the Convention on the Recognition and Enforcement of Foreign Arbitral Awards? 3. Whether arbitration clauses in seafarers' employment contracts should not be enforced by courts because they act as a prospective waiver of U.S. statutory rights?
ALJ DIDN’T FIND THE CLAIMANT TO BE CREDIBLE AND THE BRB SCREWED IT UP
BIS SALAMIS, INC., ET AL. V. DIRECTOR, OWCP[MEEKS]
BRB Decision 1; BRB Decision 2; BRB Decision 3http://www.dol.gov/brb/decisions/lngshore/unpublished/Apr15/15-0148A.htm
Joseph Meeks worked briefly for BIS Salamis, Inc. as a sandblaster and painter on offshore rigs. He was involved in an offshore accident during that employment, placing his claim within the bounds of the LHWCA. Meeks was allegedly injured during a basket transfer. Meeks claimed the basket collided with the vessel near the bulwarks and bounced, knocking him to the deck on his feet, knocking his teeth together, and then hit his shoulder on the railing of the boat, or bulwark, as he fell. Immediately after the incident, Meeks stated that he was all right. But he avers that within thirty minutes, he began to feel pain in his lower back, neck, and mouth. He alleged the same during his depositions, and that his mouth was bleeding and the accident knocked some teeth out. Meeks treated with multiple practitioners during the course of his treatment for numerous subjective complaints and underwent unnecessary back surgery. The activity on the surveillance videos, obtained by his employer and its insurer, stood in marked contrast to the pain and limited activity levels Meeks reported to his doctors during this same time frame. The parties disputed the nature and extent of Meeks’ alleged injuries and whether the incident during Meeks’ employment with Salamis caused any compensable injury to Meeks. Following a formal hearing, the ALJ acknowledged medical opinions in the record that Meeks’ symptoms were a result of his work injury, which aggravated a preexisting condition. Yet, he found the medical opinions “were based in large part on the subjective reports and histories provided” by Meeks, and the ALJ found Meeks totally unreliable and not credible. The ALJ cited Meeks’ “demeanor during the hearing” as failing to “create any confidence in the accuracy of his testimony or even his motivation to at least attempt to tell the truth.” The ALJ found that the surveillance video contradicted Meeks’ previous testimony, that Meeks filed false tax returns, correcting them only to increase his earnings capacity for a lawsuit, and that Meeks frequently misled or withheld information from his doctors and employers. The ALJ credited Meeks’ supervisor’s statement that Meeks said he had been injured before but never got anything for it and found that “the weight of the objective medical opinion” favored finding the changes to Meeks’ back were simply degenerative in nature. Therefore, the ALJ found Meeks had failed to “establish a new injury or aggravation of a preexisting condition,” either through his testimony or the medical evidence. Following the ALJ’s initial decision, the case had a lengthy procedural history. Essentially, after two remands, the Board vacated the ALJ’s findings in favor of the employer and its insurer, reversed the ALJ’s decision, and rendered a decision in favor of Meeks, including benefits for his missing tooth, finding it irrational and not supported by substantial evidence to speculate that something else caused this injury. Salamis appealed the final order of the Board, arguing that the Board erred in overturning the ALJ. Salamis asserts that the ALJ’s decision to deny benefits was supported by substantial evidence, including the ALJ’s determination that Meeks had no credibility, and that the Board exceeded its authority in making its own fact findings from the record. Meeks argued, among other things, that he established a prima facie case that he suffered a compensable injury during the course and scope of his employment with Salamis, triggering the Section 20(a) presumption in his favor, and that the ALJ’s rejection of his claim was not supported by substantial evidence. Meeks contended that the ALJ’s assessment of his credibility did not constitute substantial evidence to support the ALJ’s rejection of his claims, because credibility determinations should not be made in determining whether the presumption has been invoked. Although multiple doctors opined that the current condition of Meeks’ spine, with its preexisting degenerative disorders, was capable of causing Meeks severe pain and keeping him from working in his previous job, the record did not contain evidence that Meeks’ back condition was caused directly by the workplace incident. Accordingly, to prevail, Meeks had to make a prima facie showing that his condition could have been aggravated by the incident with the personnel basket or that the symptoms of his condition may have manifested as a result of that incident. The appellate court concluded that substantial evidence supported the ALJ’s determination that Meeks failed to make a prima facie case that the work-related injury could have caused anything more than a transient back strain, rejecting the Board’s contrary finding. Accordingly, the Board erred in overturning the ALJ. The ALJ’s determination that Meeks failed to make a prima facie case of workplace-related, debilitating injury was rational and supported by substantial evidence. The appellate court also found that the Board did not exceed its authority in rendering judgment for Meeks on his missing tooth. Substantial evidence supported the conclusion that Meeks established a prima facie case based on his complaint of a loose tooth, plus a subsequently missing tooth. Salamis produced no evidence to rebut this claim or to suggest how else Meeks could have lost his tooth. The ALJ’s alternate explanation was not supported by substantial evidence in the record. The appellate court reversed in part the award of benefits to Meeks and reinstated the ALJ’s second order, except for the portion of that order denying Meeks’ dental costs for his loose and later missing tooth; as to the loose/missing tooth, the appellate court affirmed the Board’s judgment. (5th Cir, March 17, 2016) 2016 U.S. App. LEXIS 4927
ZONE OF DANGER TEST IS NOT APPICABLE UNDER THE LHWCA
CERES MARINE TERMINALS, INC. V. DIRECTOR, OWCP [JACKSON]
Samuel P. Jackson, an employee of Ceres Marine Terminals, Inc., was operating a forklift when he accidently struck and killed his coworker, Paula Bellamy. After this event, Jackson, who was later diagnosed with posttraumatic stress disorder, filed a claim under the LHWCA for disability benefits. The ALJ reviewing the claim determined that Jackson was entitled to benefits and the Benefits Review Board affirmed. Ceres petitioned for review of the Board's decision, arguing that a person bringing a claim under the LHWCA is required to satisfy the "zone of danger" test outlined by the Supreme Court's decision in Consolidated Rail Corp. v. Gottshall. Had the Board adopted such a test, Ceres asserted Jackson would have been precluded from any recovery under the LHWCA because he was not in the zone of danger and thus did not suffer a compensable injury. In addition, Ceres contended that the ALJ erred in failing to give the report of an independent medical examiner, appointed pursuant to 33 U.S.C. § 907(e), dispositive weight. The appellate court began by noting that the Board rejected Ceres contention that the zone-of-danger test precluded Jackson from recovery in this case. The zone-of-danger test, the Board held, is a tort concept which does not apply to the workers' compensation provisions of the Longshore Act. The Board stated that Ceres argument failed to acknowledge the critical distinction, as recognized in Consolidated Rail , between tort actions, which rely on common law fault and negligence principles, and worker's compensation claims, which are not governed by those principles. The appellate court found it was well established, that a work-related psychological impairment, with or without an underlying physical harm, may be compensable under the Act. The appellate court noted that because it was not free to engraft on the statute a requirement that Congress did not place there, the court declined to adopt the zone-of-danger test. In addition, the Board rejected Ceres contention that the IME opinion should be given dispositive weight, holding that the opinion should be weighed along with the other medical opinions in the record. Because the ALJ properly weighed the evidence, the Board affirmed the ALJ's finding that Jackson sustained a compensable work-related injury. The appellate court disagreed on both points that Ceres presented on appeal and therefore denied the petition for review. (4thCir, March 24, 2016, UNPUBLISHED) 2016 U.S. App. LEXIS 5510
WHY CAN’T WE RECOVER OUR LONGSHORE LIEN? YOU CAN!
CONTINENTAL INSURANCE COMPANY v. DAWSON
David Dawson was allegedly injured in the course of his employment with Hill International, Inc. in Baghdad, Iraq, suffering burns from hot water while taking a shower in his assigned living quarters. Continental was Hill’s workers’ compensation carrier and, as such, was required to pay for Dawson’s medical expenses and indemnity in accordance with the LHWCA. Aetna Life Insurance Company was Dawson’s group health insurance carrier through Hill’s employee benefit plan established under the ERISA. Dawson was initially treated in Germany. The expenses for Dawson’s overseas treatment were billed to Aetna, rather than to Continental. Aetna paid $282,774.51 to overseas medical providers on behalf of Dawson. Continental paid for Dawson’s subsequent medical treatment. Dawson eventually filed suit in Texas state court against Fluor Intercontinental, Inc., which managed Dawson’s living quarters in Iraq. Both Continental and Aetna intervened in the state lawsuit, asserting liens upon any settlement or judgment obtained against Fluor for the amounts they paid to or on behalf of Dawson. Continental and Dawson eventually settled his LHWCA claim, pursuant to §8(i) of the LHWCA, Pursuant to the approved settlement agreement, Continental’s lien amounted to $388,457.67. Ultimately, after the jury in Dawson’s state lawsuit rendered judgment in his favor, he entered into a confidential settlement with Fluor and paid Continental the full amount of its lien under the settlement agreement. Aetna filed a claim with the DOL against Continental for reimbursement of the medical benefits Aetna had paid on Dawson’s behalf. Aetna and Continental agreed to settle this claim. In exchange for a payment of $219,000 from Continental, Aetna assigned to Continental its subrogation and reimbursement rights connected to Dawson’s medical treatment. Continental thereafter sought a stipulation from Dawson regarding those rights. After Dawson refused, Continental filed suit in federal district court, seeking to enforce Aetna’s subrogation and reimbursement rights related to Aetna’s payments of $282,774.51 for Dawson’s overseas medical treatment. The district court denied Continental’s motion for summary judgment and granted Dawson’s cross-motion for summary judgment against
Continental. Applying Texas law, the court held that the terms of the settlement agreement obligated Continental to pay for Dawson’s past medical treatment, which included Aetna’s payments on Dawson’s behalf, precluding Continental from enforcing the subrogation rights that Aetna had assigned to it and limited Continental’s recovery from Dawson to the amount of its lien specified in the settlement agreement, which Dawson had already paid. Continental took a timely appeal of the district court’s judgment, arguing that the district court erred in holding that the settlement agreement required it to pay for Dawson’s past medical treatment and thus precluded any subsequent recovery for those payments beyond those contemplated by the settlement agreement. The appellate court agreed, concluding that the district court misconstrued the parties’ agreement. The appellate court found that the settlement agreement did not require Continental to repay Aetna for Dawson’s past medical treatment and, in turn, did not preclude Continental’s recovery of the subrogation and reimbursement rights that Aetna had assigned to it. Alternatively, Dawson argued that, regardless of the settlement agreement’s effect, Aetna waived its ability to enforce its subrogation rights and that Continental, acting as an assignee, could not enforce the interests that Aetna has waived. The appellate court rejected this argument noting that, under the settlement, Aetna agreed both to assign the full value of its $282,774.51 lien against Dawson and to assist Continental in collecting that lien in Dawson’s then-pending state lawsuit. Thus, Continental could assert the subrogation and reimbursement interests that Aetna had assigned to it, and the settlement agreement did not preclude the recovery of those interests. The district court’s judgment was reversed and the case was remanded for further proceedings. (5th Cir, March 15, 2016, UNPUBLISHED) 2016 U.S. App. LEXIS 4980
5TH CIRCUIT ADDRESSES OCSLA AND CHOICE OF LAW
PETROBRAS AMERICA, INC., ET AL. V. VICINAY CADENAS, S.A.
This case involved a damage claim, and a dispute between an offshore platform operator and the manufacturer of an underwater tether chain, as to whether the tether chain broke on a free-standing hybrid riser system to move crude oil from wellheads on the seabed to floating production storage and offloading facility on the surface of the sea. The manufacturer pled the economic loss rule under maritime law, and the insurers for the owner opposed the motion, but did not contend that Louisiana law, not maritime law, applied. After losing the argument, the underwriters argued that Louisiana law applied and the maritime economic loss rule was not applicable. The manufacturer then argued that the insurer waived the right to argue that Louisiana law applied by not raising it in its pleadings or opposition to the motion for summary judgment. The district court denied the motion and this appeal followed. The Fifth Circuit rejected the waiver argument, holding that the choice of law in the OCSLA was mandatory by statute and was consequently not waivable by the parties. The appellate court held that state law applied to a tether chain connecting the floating buoyancy can to the rise, which in turn was affixed to the seabed—a fixed structure erected on the seabed, there was minimal risk to commercial shipping when the structure fell to the sea floor, and the structure had nothing to do with traditional maritime activity. The appellate court reversed and remanded the case for application of state law. (5th Cir, March 7, 2016) 2016 U.S. App. LEXIS 4277
DEFECTIVE PRODUCT CAUSED HARM UNDER COLOR OF FEDERAL AUTHORITY
SAVOIE V. HUNTINGTON INGALLS, INCORPORATED, ET AL.
From 1952 through 1976, the great majority of ocean-going vessels built at Avondale Shipyard in Louisiana fulfilled contracts from the federal government. The specifications for these Navy and Coast Guard vessels required asbestos insulation through at least 1968. In this lawsuit brought by survivors of a worker who allegedly contracted mesothelioma while working at the shipyard during this time, the question presented to the court was whether strict liability claims based on the existence of asbestos at the shipyard gave rise to federal jurisdiction under the federal officer removal statute. Joseph Savoie was employed at the shipyard between 1948 and 1996. The plaintiffs contended that although the government supervised the construction of the vessels to ensure that they were in compliance with the contractual requirements, the government did not control the shipyard's safety department. The defendants countered that the Navy inspectors were heavily involved in overseeing the construction process and had final control over any safety issues that arose. Savoie ultimately contracted mesothelioma, allegedly as a result of asbestos exposure from working on these vessels. Before his death, he filed this suit in state court. He brought numerous negligence claims, such as failure to warn, failure to take reasonable precautions, and failure to use non-asbestos products when permitted by contract. He also brought strict liability claims. He passed away just a month after filing suit. His wife and children substituted as plaintiffs. The defendants timely removed the case under the federal officer removal statute, but the plaintiffs sought remand. The district court construed all of the plaintiffs' claims as negligence claims. It then found that federal jurisdiction did not exist because the shipyard retained discretion in its safety policies and could have complied with both the government's requirements for the vessels' construction and its state law duties of care, ordering that the case be remanded to state court. Defendants filed a timely appeal. The appellate court found that the negligence claims of Savoie’s survivors did not support removal because those claims challenged discretionary acts of the shipyard free of federal interference, and thus, the government's directions to the shipyard via the contract specifications did not cause negligence. However, the government's specifications, to which the shipyard was contractually obligated to follow, required the use of asbestos that caused the worker's death, and that was enough to show a causal nexus between the survivors' strict liability claims under La. Civ. Code Ann. §2317 and the shipyard's actions under the color of federal authority. The court noted that it had previously recognized that strict liability claims support federal officer removal when the government obligates the defendant to use the allegedly defective product that causes the plaintiff's harm. As only the survival claims alleging strict liability satisfied the first two requirements of federal officer removal, it was only defenses to those claims that should be considered in determining whether the shipyard asserted colorable federal defenses. This meant that defendant's preemption defense was governed by the law at the time Savoie was exposed to asbestos, which occurred before the Louisiana Worker's Compensation Act was amended in 1989 to eliminate any concurrent coverage between that Act and the federal LHWCA. The district court’s remand order was vacated and the case was remanded. (5th Cir, March 22, 2016) 2016 U.S. App. LEXIS 5328
DOCKBUILDER TURNED SEAMAN (CONT.)
COLLICK V. WEEKS MARINE, INC., ET AL.
Joseph Collick was employed by Weeks Marine, Inc. as a dockbuilder involved in the construction of a Navy pier, when he fell twelve to fifteen feet to the deck of the pier. In the fall, Collick suffered a pilon fracture dislocation of his right ankle. Immediately after Collick’s injury, Weeks began voluntarily paying him medical and compensation benefits under the LHWCA. Collick then brought an action stating that he was a seaman and asserting claims under general maritime law and the Jones Act. As Collick had attained MMI, Weeks discontinued paying LHWCA benefits to Collick and controverted the claim based upon Collick’s assertion that he was a member of the crew of a vessel, precluding coverage under the LHWCA. Upon receiving Collick’s demand for maintenance and cure benefits under general maritime law, Weeks refused to pay maintenance and cure benefits, contending that Collick had already attained maximum medical improvement. Collick moved the court for an injunction to preliminarily enjoin Weeks from failing to pay maintenance and cure benefits under general maritime law. Collick contended that he was “assigned to the crew” of a spudded down barge that served as a work platform at the pier construction project. Despite numerous factual disputes, the court granted Collick’s request for preliminary injunction. The court also found that Collick had shown a substantial likelihood of success on the merits of his claim that he is a seaman entitled to maintenance and cure benefits and that he would suffer irreparable harm if the preliminary injunction was not granted with respect to both maintenance and cure [see November 2009 Longshore Update]. Weeks appealed the grant of a preliminary injunction in favor of Collick, contending that it was an abuse of discretion on the part of the district court. The appellate court agreed, holding that Collick failed to meet the burden required to qualify for a mandatory preliminary injunction because it could not be concluded that he met the first prong of the standard, namely, that he had shown a reasonable probability of success on his claim for maintenance and cure. For him to meet that prong, he had to demonstrate that he would most likely be able to prove he is, in fact, a seaman. The district court's order was vacated, and the case was remanded for the court to proceed to trial, forthwith, on Collick’s complaint [see November 2010 Longshore Update]. Weeks next moved for summary judgment against co-defendant, Haztek, Inc., seeking complete indemnity in accordance with the contractor indemnification agreement (CIA) it had executed in Weeks’ favor, and requested that the court enter an order requiring Haztek to defend and to indemnify Weeks. Haztek opposed the motion. The court concluded there was a genuine issue of material fact, precluding summary judgment and denied Weeks' summary judgment motion [see December 2013 Longshore Update]. Weeks next moved before the Magistrate Judge for leave to amend its third-party complaint to conform to the facts disclosed during the parties' discovery, i.e., to formally reference the 2006 Package Policy of third-party defendant, Evanston Insurance Company, in the third-party complaint. Weeks’ motion to amend was denied by the magistrate judge, who held that Weeks failed to show good cause to modify the scheduling order. Weeks appealed the magistrate’s recommendation to the district court. On appeal of the magistrate’s ruling, the district court affirmed the magistrate’s memorandum, because the magistrate judge did not commit any mistake or misinterpret or misapply any applicable law [see January 2016 Longshore Update]. Weeks moved for reconsideration of the court's order affirming the magistrate judge's recommendation, which denied Weeks' motion for leave to amend its third-party complaint to conform to facts disclosed during discovery, on the ground that the court erred by completely overlooking Weeks' argument that an amendment of the third-party complaint was not necessary in the first place. The court denied the motion for reconsideration. (USDC DNJ, March 11, 2016, UNPUBLISHED) 2016 U.S. Dist. LEXIS 31847
ONE DEFENDANT OUT OF §905(B) ACTION, ANOTHER REMAINS IN (CONT.)
JONES V. SANKO STEAMSHIP CO., LTD, ET AL.
While working as a longshoreman during cargo operations conducted by his employer, the Delaware River Stevedores, Inc., Ronald Jones allegedly suffered injuries when a "cut" sling parted, and caused a pre-slung plywood bundle to fall on his legs. There was no dispute that the sling, which was made of rope of almost one inch in diameter, contained a cut that had penetrated about 80% of the thickness near the loops in the sling that were used to hoist the cargo from the hold to the dock, where Jones awaited. As a result of these injuries, Jones brought claims under §905(b) of the LHWCA, against a bevy of entities, including Sanko Steamship Co. Ltd., GrandSlam Enterprise Corp., SK Shipping Co., Ltd., Hyundae Ship Supply Co., and Harmony Stevedoring Services. Following years of discovery, Grandslam and SK separately moved for summary judgment, based upon their belief that the undisputed record demonstrated, as a matter of law, that they breached none of the duties owed to Jones under §905(b) of the LHWCA or general maritime law. The court previously found, in a prior ruling, that factual disputes precluded the entry of summary judgment in favor of SK. Grandslam's motion for summary judgment was granted, and SK's motion for summary judgment was denied [see January 2016 Longshore Update]. In the wake of the its prior summary judgment decision, Jones moved for reconsideration, relative to the entry of summary judgment in favor of Grandslam and SK moved for reconsideration, relative to the denial of summary judgment in its favor. In connection with both motions, the court found that the moving parties simply rehashed the arguments expressly considered, and previously rejected, in the court's previous summary judgment decision. Both motions for reconsideration presented little more than disagreement with the court’s prior summary and both motions were denied. (USDC DNJ, March 2, 2016) 2016 U.S. Dist. LEXIS 26205
COURT DISMISSES CLAIMS UNDER BOTH THE JONES ACT AND LHWCA
IN RE: FRANZ
Franz, Jr., Trustee, as owner, and Buchanan Marine, L.P., as bareboat charterer, of the barge B-252 commenced this action pursuant to the Limitation of Liability Act, seeking exoneration from or limitation of liability. Franz and Buchanan moved for summary judgment, on the limitation action. Claimant, Tilcon New York, Inc., also moved for summary judgment and claimants Wayne and Karen Volk cross-moved for summary judgment, seeking dismissal of the limitation proceeding. Volk worked as a barge checker for Buchanan at a quarried rock processing facility operated by Tilcon At the facility, Tilcon processes quarried rock and loads the rock onto barges supplied by Buchanan. Using its tug boats, Buchanan then transports the barges down river to Tilcon's customers. Volk fell and injured his right arm and shoulder while inspecting a barge after it was loaded with wet stone. Volk has not worked since the accident and had been receiving workers' compensation under the LHWCA. Volk's injury occurred aboard the barge B-252, a "'dumb' barge" that required a tugboat to ferry it from place to place. Franz owned the B-252 as a trustee, and bareboat chartered that barge along with his fleet of other barges and tug boats to Buchanan. The Volks filed a complaint to recover for personal injury against Buchanan and Tilcon. In response, Franz and Buchanan commenced this limitation action in federal court, and offered a security bond of $47,420.77, representing the value of their interest in the B-252 (the court later directed Franz and Buchanan to increase their security by $10,000). The court thereafter granted Franz and Buchanan's motion to approve security, enjoin suits, and direct the issuance of notice. Both the Volks and Tilcon answered and asserted counterclaims. The Volks contended that they were entitled to relief under the Jones Act because Volk was a seaman who suffered a personal injury. Franz and Buchanan oppose and assert that Volk did not meet the standard to be a Jones Act seaman. Tilcon argued that it was not liable under the Jones Act because it was not Volk's employer. Assuming without deciding that Volk met the first Chandris criteria, the court concluded that his connection to the B-252 was far from substantial in either duration or nature. On the contrary, Volk was square on all fours with the claimant in O'Hara and did not qualify as a Jones Act seaman. As a result, he did not qualify for seaman status, and Franz, Buchanan and were awarded summary judgment on the Volks' Jones Act claims. Alternatively, the Volks maintained that the parties were negligent under §905(b) of the LHWCA. Tilcon asserted that it had no LHWCA liability because it did not employ Volk nor did it own the B-252. Because LHWCA liability only attaches to employers or vessels, Tilcon's motion on this ground is granted. Franz maintained that it was not liable because it was not the owner of the B-252, as it bareboat chartered the B-252 to Buchanan as owner pro hac vice. Regarding LHWCA liability under a bareboat charter, the court noted that the original vessel owner is only responsible for its "turnover duty." The negligence that the Volks complained of did not relate to Franz's turnover duties to warn Buchanan of hidden dangers. Accordingly, the Volks did not have a LHWCA claim against Franz, and petitioners' motion on this ground was granted. Buchanan acknowledges it is liable under the LHWCA, however, asserted that Volk's remedy was limited to LHWCA workers' compensation payments under the statute's no-fault insurance scheme. The court agreed, applying the Gravattrule. As Volk's injury was attributable to conduct related to Buchanan's capacity as his employer, LHWCA workers' compensation benefits were his exclusive remedy. The court concluded that the Volks had not established negligence or other actionable conduct against Franz and Buchanan under any alleged theory, and the complaint for exoneration from liability was granted. Consequently, Tilcon's claims for contribution or indemnification were dismissed. The Volks' cross-claims against Tilcon were also dismissed. (USDC NDNY, Mach 10, 2016) 2016 U.S. Dist. LEXIS 31071
COOPERATION WITH DISCOVERY APPLIES IN LONGSHORE CASES TOO
HANSEN V. PORTS AMERICA TEXAS, ET AL.
Alfred Hansen alleged that, as a result of. exposure to spilled butyl mercaptan at Ports America Texas’s facility, 'he experienced migraine headaches, head spasms, clavicle pain, shortness of breath, depression, irritation, confusion, nausea, and sensitivity to heat and to the outdoors. Ports America controverted the claim and the case was referred to the Office of Administrative Law Judges (OALJ). The formal hearing was delayed, due primarily to Hansen’s non-compliance with employer's discovery requests. As a result of Hansen’s continued violations of several orders to participate in discovery, the ALJ ruled that he would restrict Hansen from calling witnesses other than himself, and prohibit him from introducing non-medical exhibits that he had not identified during discovery or any medical exhibits that Ports America did not possess. Following the hearing, the ALJ found that Hansen was entitled to the Section 20(a) presumption, linking his alleged symptoms to butyl mercaptan exposure, but that Ports America had established rebuttal of the presumption. The ALJ concluded that the record as a whole did not support a finding that any of claimant's symptoms were causally related to exposure to butyl mercaptan. Accordingly, the claim was denied. Hansen, proceeding pro se, appealed the denial of benefits, as well as the ALJ’s discovery orders. Ports America filed a response brief in support of the ALJ’s orders· and the denial of benefits. Reviewing Hansen’s arguments under the abuse of discretion standard, the BRB rejected Hansen’s contention that the ALJ committed error by imposing discovery sanctions and refusing to grant a continuance at the time of the formal hearing. The ALJ repeatedly sought to have Hansen schedule and attend his deposition and ordered him to comply with employer's other discovery requests. Due to claimant's non-compliance with employer's discovery requests and the ALJ’s orders, the ALJ did not abuse his discretion by imposing the sanctions he imposed. The BRB next addressed the ALJ’s finding that Hansen did not establish a work-related injury from butyl mercaptan exposure. The BRB found that the ALJ properly credited sworn testimony and a toxicology report to find that Ports America rebutted the Section 20( a) presumption and that, based on the record as a whole, Hansen did not establish that his injuries were related to butyl mercaptan exposure. Accordingly, the administrative law judge's decision and order denying benefits was affirmed. (BRB NO. 15-0297, March 3, 2016)
Updater Note: As many of my long suffering readers know, I don’t typically review BRB cases. However, every once in a while a great one like this decision comes along and, since the BRB won’t publish it, I will. Thanks to Steve Arceneaux, of Ports America, for sharing it with me, and congratulations on the outcome.
And on the Admiralty front . . .
LONGSHOREMAN TURNED SEAMAN NOT COVERED UNDER P&I POLICY (CONT.)
NAQUIN V. ELEVATING BOATS, LLC, ET AL.
Larry Naquin was using an Elevating Boats, LLC land-based crane to relocate a test block when the pedestal of the crane snapped, causing the crane to topple over. Upon jumping from the crane house, Naquin sustained a broken left foot, a broken right foot, and a lower abdominal hernia. Naquin’s cousin’s husband, another Elevating Boats employee, was crushed by the crane and killed. Despite reparative surgeries and physical therapy sessions, Naquin was unable to return to physical work. Naquin subsequently sued Elevating Boats pursuant to the Jones Act, and the suit proceeded to trial. After a three-day trial, a jury concluded that Naquin was a Jones Act seaman and that Elevating Boats’ negligence caused his injury. The jury subsequently awarded Naquin $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future mental pain and suffering, and $400,000 for future lost wages. Elevating Boats appealed, challenging, among other things, the grant of Jones Act seaman status to Naquin and the sufficiency of evidence to establish Elevating Boats negligence. Pertinent to this appeal, the Naquin majority affirmed the jury’s verdict as to liability, concluding that the jury correctly determined that Naquin qualified as a Jones Act seaman; the entire panel, though, agreed that Elevating Boats acted negligently in failing to provide a reasonably safe work environment and work equipment [see April 2014 Longshore Update]. The U.S. Supreme Court denied the petition for certiorari [see November 2014 Longshore Update]. The Fifth Circuit subsequently determined that this longshoreman, judicially turned into a seaman, was not covered under Elevating Boats’ P&I policy [see April 2015 Longshore Update]. The district court subsequently granted Elevating Boats leave to file a third-party complaint against its insurance companies, State National Insurance Company (SNIC) and Certain London Insurers. In its third-party demand, Elevating Boats complained that both SNIC and London Insurers breached their insurance contracts by denying Elevating Boats’ insurance claims arising from Naquin’s accident and by failing to provide Elevating Boats with defense and indemnity. SNIC moved for summary judgment, asserting, chiefly, that Elevating Boats was not entitled to coverage under its P&I policy, because coverage did not extend to Naquin’s land-based incident and that Elevating Boats failed to comply with the notice requirements imposed by the policy. Elevating Boats responded in opposition, explaining that it was entitled to indemnity under the “any casualty or occurrence” language of the policy. Upon consideration of both parties’ arguments, the district court granted summary judgment to SNIC. Elevating Boats appealed, arguing that the district court erred in interpreting the critical language of the policy as excluding coverage to Elevating Boats due to the circumstances surrounding its liability in Naquin. The appellate court endorsed this interpretation under Louisiana state law, noting SNIC’s averment that the clause “as owner of the Vessel” did not provide coverage for the land-based incident due to Elevating Boats’ negligence. Elevating Boats urged a blanket reading of the policy that would provide coverage for “any casualty or occurrence.” The appellate court was persuaded, guided by the law and facts before it, that Elevating Boats’ strained interpretation of the policy was unreasonable in this context. The appellate court declined Elevating Boats’ invitation to read the provision in the piecemeal fashion that it preferred; a construal that would directly contradict the well-established Louisiana rules regarding contractual interpretation. Where there was no causal operational relation between the vessel and the resulting injury, there was no extension of coverage for liability. For the same reason, the district court did not err in dismissing Elevating Boats’ claim for bad faith. The appellate court affirmed the district court’s grant of summary judgment in favor of SNIC. (5thCir, March 22, 2016) 2016 U.S. App. LEXIS 5329
Updater Note: The result in this case is a glaring testament to the argument that the Fifth Circuit simply got it blatantly wrong, when they affirmed the jury’s holding that this land-based worker was, instead, a seaman. How can a “seaman,” who must have a connection to a vessel (or fleet of vessels), which is substantial in terms of both nature and duration, not have coverage under the marine policy that is specifically designed to provide coverage for an individual who meets that substantial connection test? This is just another Fifth Circuit-created maritime law mess, like the one they created in Winchester, and warrants immediate correction before many more maritime employers are denied the coverage they paid for.
DOCTRINE OF LACHES APPLIED TO MAINTENANCE ND CURE CLAIM
SPENCER V. GRAND RIVER NAVIGATION COMPANY, INC.
Darryle Spencer was employed for several years by Grand River Navigation Company, Inc. as a merchant mariner. He served as a conveyor man on Grand River's vessel, which sailed on the Great Lakes. On July 26, 2011, Spencer sent a letter to Grand River advising that he had been hospitalized for breathing problems and had been diagnosed with advanced COPD. The letter further advised that Spencer, on his doctor's recommendation, was resigning his position as a merchant mariner, effective immediately. Within two weeks, Spencer had requested and received early distribution of his IRA balance by lump sum payment. In February 2012, Spencer received an invitation from Grand River to return to work as a crew member during the 2012 season. As a prerequisite, he was required to obtain a physical examination and return the completed Coast Guard medical evaluation form in time for vessel assignments in early March. Spencer obtained the physical examination and returned the completed form, dated February 22, certifying that he was competent to perform merchant mariner duties. Spencer thereafter returned to work for Grand River as a conveyor man during the 2012, 2013, and 2014 sailing seasons. He was exposed to coal dust during this time, but he was able to take all prescribed medications and therapies. In early 2015, however, Spencer was advised not to return to work, even if he were able to take all prescribed medications and therapies, and he has abided by this advice. Spencer commenced this action in April 2015, alleging that exposure to coal dust aggravated his pre-existing asthma and COPD condition. Spencer sued Grand River under the Jones Act for negligence and unseaworthiness and, under general maritime law, for maintenance and cure. Grand River moved the district court to dismiss the complaint under FRCP 12(b)(6) as time-barred. Spencer averred that Grand River was equitably estopped from asserting a statute of limitations defense because Grand River misled him to believe that he could safely return to work after he was diagnosed with COPD in July 2011. The district court dismissed Spencer’s claims as time-barred. The court essentially held that all three claims are time-barred because the complaint was filed more than three years after Spencer discovered the alleged injury. Equitable estoppel was deemed not applicable because Spencer failed to allege facts plausibly showing that Grand River had misrepresented or concealed facts surrounding the dangers associated with his return to work. The court denied Spencer's motion for reconsideration, holding that his maintenance-and-cure claim, too, accrued at the time he discovered his injury and its work-relatedness in July 2011, not when his condition became incapacitating sometime after the 2014 sailing season. On appeal, Spencer contended the district court erred in its application of equitable estoppel and the doctrine of laches. The appellate court affirmed the district court’s finding that Spencer’s negligence and unseaworthiness claims under the Jones Act were untimely because he was not entitled to equitable estoppel since his own version of the facts suggested that Grand River did nothing more than offer him employment in reliance on the certification that he was fit for work and the assumption that Spencer, familiar with the working conditions, would take the indicated measures to control his respiratory condition. There was no allegation that Grand River engaged in any fraudulent concealment or made any material misrepresentation on which Spencer detrimentally relied. Turning to Spencer's maintenance and cure claim, the appellate court observed that it was not subject to the three-year statute of limitations prescribed in the Jones Act. However, the court noted that it had adopted the three-year period as the appropriate benchmark in assessing the timeliness of a maintenance and cure claim arising out of the same personal injury underlying a plaintiff's negligence and seaworthiness claims. Where, as here, Grand River asserted the defense of laches, the benchmark gave rise to certain presumptions and burdens. A claim asserted within the three-year period is presumptively reasonable and timely. The defendant asserting laches has the burden of rebutting the presumption. Grand River contended Spencer's maintenance-and-cure claim accrued in July 2011 when he knew of the pulmonary condition he now contends is disabling and that his delay in seeking maintenance and cure until April 2015 was presumptively unreasonable. The district court had agreed with this argument. On appeal, Spencer contended his claim for maintenance and cure was analogous to the one addressed by the Fifth Circuit in Cooper, where it was held that a maintenance and cure claim did not accrue until the seaman became incapacitated to do a seaman's work. Viewing the evidence in the light most favorable to Spencer and giving him the benefit of reasonable inferences, the appellate court concluded he adequately alleged that his respiratory condition was so aggravated by exposure to coal dust aboard Grand River’s vessel as to render him unfit to continue working as a seaman in late 2014 or early 2015. The allegation that he continued working as a seaman until then negated the notion that he became incapacitated to perform seaman's work before then. Accordingly, the district court's order of dismissal was affirmed in part and reversed in part. The dismissal of Spencer's Jones Act claims based on negligence and unseaworthiness theories was affirmed and the dismissal of Spencer's maintenance and cure claim was revered and the claim was remanded to the district court for further proceedings. (6th Cir, March 23, 2016, UNPUBLISHED) 2016 U.S. App. LEXIS 5563
INSURER FOCUSES ON SUPERSEDING CAUSE AND FAILS TO PROVE ITS CASE
OSPREY UNDERWRITING AGENCY, LTD, ET AL. V. NATURE'S WAY MARINE, LLC, ET AL.
A vessel owned by Nature's Way Marine was negligently grounded near the mouth of a slip controlled by Crown Point Holdings, LLC. After the grounding, another vessel, the M/V Port Gibson, sank to the bottom of the slip and pulled another ship, the dredge Buccaneer, down with it. Crown Point, as owner and operator of both ships, undertook the salvage operation. Osprey Underwriting Agency, Ltd., Crown Point's insurer, paid the related expenses. Osprey then sued Nature's Way, arguing that Nature's Way's negligence caused the sinking of the Port Gibson and the Buccaneer. Following a bench trial, the district court found that Nature's Way was not liable. In its post-trial findings, the district court explained that Osprey failed to prove a necessary element of its claim against Nature's Way that the grounding of its vessel caused the sinking of the Port Gibson and the Buccaneer. The district court further found that even if Osprey met this causation burden, the failure of Crown Point to warn anyone of the timber impaled in the hull was a superseding cause of the sinking. Osprey timely appealed, contending that the district court erred in finding that Osprey did not establish that the grounding of the Nature’s Way vessel caused the sinking of the Port Gibsonand the Buccaneer, and that Crown Point knew that the timber had impaled the Port Gibson and that their failure to respond prudently was a superseding cause of the sinking. The appellate court initially noted that the parties generally did not dispute that the bolt-studded timber punctured the Port Gibson's hull and caused that ship to take on water and sink. But, for Nature’s Way to be liable, Osprey must establish that this hull puncture was caused by the negligent grounding and post-grounding maneuvering of the Nature’s Way vessel. Nature's Way had stipulated that the grounding of its vessel was due to its negligence. Osprey largely asserted that the district court's ruling was based on the doctrine of superseding cause, arguing that the court clearly erred in finding that Crown Point’s failure to warn of the timber impaled in the Port Gibson was a superseding cause of the ships' sinking. The appellate court’s review of the district court's judgment demonstrated that the district court’s ruling was based on its finding that neither side had proven how the Port Gibson's hull was punctured. Osprey contended that the district court's factual finding was clearly erroneous. The appellate court disagreed that the district court clearly erred in determining that Osprey failed to meet its causation burden. Instead, the appellate court’s review of the record did not leave it with the definite and firm conviction that the district court made a mistake. Because the district court did not clearly err in finding that Osprey failed to prove causation, the appellate court declined to reach the district court’s superseding cause finding. The judgment of the district court was affirmed. (5th Cir, March 25, 2016, UNPUBLISHED) 2016 U.S. App. LEXIS 5603
DEEPWATER HORIZON SEAFOOD CLAIM REJECTED
IN RE: DEEPWATER HORIZON, ET AL.
For at least the ninth time since the institution of the Economic and Property Damages Class Action Settlement in In re: Oil Spill by the Oil Rig Deepwater Horizon, the Fifth Circuit was called upon to review the actions of the Court Supervised Settlement Program and the district court judge under the terms of the settlement agreement. The present case involved a putative claim on the Seafood Compensation Fund, a $2.3 billion fund intended to compensate fishermen, crew, and other seafood industry participants for any decline in revenue they suffered as a result of the Deepwater Horizon explosion and oil spill. Johnny Sexton worked as a deckhand on a fishing vessel. He hired a law firm to file a Seafood Claim on his behalf. Sexton's Seafood Claim filing was handled by a legal assistant at the firm. The day before the bar date, the legal assistant filed a Registration Form and certain supporting documentation for Sexton. He filed these documents as a favor to a coworker at the firm who was more familiar with the claims filing process. The legal assistant did not file a sworn Claim Form for Sexton, and later explained that he did not realize he needed to. In addition to setting a deadline for filing, the Settlement Agreement specified what needed to be filed for a Seafood Claim to be processed. These included a sworn Claim Form and documentation to support the claimant's past income and availability for employment during the months of the oil spill. Two months after the January 2013 bar date, when the legal assistant's error was discovered, Sexton's law firm reached out to the Claims Administrator to explain the error and request an extension. Late-filed Seafood Claims could only be reviewed for "excusable neglect." Pursuant to this policy, the Program denied the law firm's request for an extension on Sexton's Seafood Claim. The law firm sought reconsideration within the Program. When that was unsuccessful, the law firm filed a motion for relief with the district court. The district court summarily denied the motion without responsive briefing or a hearing. On appeal the appellate court noted that the terms of the settlement agreement governed the claims administration process. They did not provide any grounds for disturbing the Court Supervised Settlement Program's and district court's actions regarding the claimant's untimely seafood claim. Because it set a discretionary standard, with no mooring in the settlement agreement itself, the claimant's "motion for extension" in the district court presented no issue that the district court needed to decide as a matter of its discretionary review. The appellate court observed that if the discretionary nature of the district court's review is to have any meaning, the court must be able to avoid appeals like this one which involve no pressing question of how the Settlement Agreement should be interpreted or implemented, but simply raise the correctness of a discretionary administrative decision in the facts of a single claimant's case. The district court’s judgment was affirmed. (5thCir, March 8, 2016, UNPUBLISHED) 2016 U.S. App. LEXIS 4317
HOW OLD DO YOU HAVE TO BE TO BECOME A PIRATE
MUSE V. DANIELS
Abduwali Muse pleaded guilty to piracy, among other crimes, for his role in boarding the “MV MAERSK ALABAMA” in 2009 in international waters off the coast of Somalia and taking its captain hostage. Muse initially told federal agents that he was 16 at the time of his capture, which created a potential for prosecution under the special rules applicable to juveniles. The day before a hearing set to determine his age, Muse told an FBI agent that he was between 18 and 19. At the hearing Muse refused to testify. The court concluded that Muse was at least 18 when the crime occurred, which led to his prosecution as an adult. He pleaded guilty and was sentenced to 405 months' imprisonment. The plea agreement contained a clause promising "not to seek to withdraw his guilty plea or file a direct appeal or any kind of collateral attack challenging his guilty plea or conviction based on his age either at the time of the charged conduct or at the time of the guilty plea." Notwithstanding the waiver, Muse filed a proceeding asking the court to set aside his conviction on the grounds that a magistrate judge lacked authority to decide whether he was an adult in 2009 and that his lawyer furnished ineffective assistance by not pursuing that question vigorously. The court denied the motion, relying on the waiver in the plea agreement. Muse appealed, but the Second Circuit declined to issue a certificate of appealability. Turning to the Southern District of Indiana, where he is imprisoned, Muse filed a petition for a writ of habeas corpus under 28 U.S.C. §2241. Again he lost, this time because the district court concluded that §2255(e) applied. On appeal to the 7th Circuit, the appellate court observed that Muse's brief in this court ignored his waiver and §2255(e) alike. Instead he presented an argument about the extent to which the law permits magistrate judges to resolve contests about criminal defendants' ages. The brief gave the appellate court no reason to question the district court's decision. Muse’s conviction for piracy was affirmed. (7th Cir, February 22, 2016) 2016 U.S. App. LEXIS 3172
Updater Note: Thanks to John Walker, of Schouest, Bamdas, Soshea and BenMaier PLLC of Houston, TX, for sharing this interesting case with me.
CHIEF ENGINEER MARPOL CONVICTION OVERTURNED BY 5TH CIRCUIT
UNITED STATES OF AMERICA V. FAFALIOS
Matthaios Fafalios, a Greek seafarer, was charged and convicted for the crime of “failing to maintain an oil record book aboard a foreign-flagged merchant sea vessel, in violation of 33 U.S.C. §1908(a) and 33 CFR §151.25.” At the close of the government’s evidence at trial, Fafalios moved for judgment of acquittal pursuant to Fed. R. Crim. P. 29 on the grounds that the government failed to prove beyond a reasonable doubt that he was the “Master or other person in charge” of the Vessel and therefore he was not legally required under the Coast Guard’s regulations to maintain the Oil Record Book while in United States waters in accordance with 33 CFR §151.25(j). The trial court denied the motion for judgment of acquittal, and Fafalios sought appellate review of the conviction. In a decision that was openly critical of the government, the appellate court carefully reviewed the language contained in the applicable statutes and regulations, confirming that where the language was unambiguous, the court should not look beyond the plain language of the statute or regulation. The government attempted to offer several reasons for why the conviction should be upheld, all of which were addressed and rejected by the appellate court. The government challenged the applicability of Rule 29, arguing that Fafalios should have moved to dismiss the indictment before trial allowing the government an opportunity to correct any insufficiency. The appellate court disagreed. In addition, the appellate court rejected the prosecutor’s argument that the Chief Engineer’s responsibility to sign and record bilge water operations in the Oil Record Book was a “continuing obligation.” The court held that any failure by Fafalios to make a required entry occurred while he (and the Vessel) were still in international waters and therefore the United States did not have jurisdiction over such an offense, as the “failure to sign an oil record book while in international waters, standing alone, is not a violation of either APPS or its attendant regulations.” In addition to relying on its own past precedents, the appellate court concluded that the regulation's requirement for the record book to be signed "without delay" implied that the offense was committed as soon as the book was not signed, and that different language would have been used by the drafters if a continuing obligation was intended. The appellate court further rejected the government's alternative argument that Fafalios was obligated, as the Vessel's Chief Engineer, to comply with the regulations' requirement for the ship, itself, to "maintain" an oil record book, finding that such argument was "foreclosed by traditional rules of statutory construction, not to mention common sense." The appellate court criticized the government's "strained reasoning" as to why this duty should extend to Chief Engineers, finding that there was "no convincing explanation" as to why the ship's duty (to maintain an accurate oil record book in U.S. waters) should be delegated to a chief engineer, especially when the applicable statutes permit an in rem cause of action against the ship. The appellate court also highlighted that the Coast Guard’s past practices did not provide a reason to deviate from the regulation's plain language. Finally, in rejecting what it referred to as an "unusual" policy argument, the appellate court stated that it was unpersuaded by the government's concerns that reading the regulation to impose the duty to maintain the record book only on the vessel's master would cause chief engineers to falsify records and conceal their falsification from the master, finding the government's argument to be nothing more than a "contrived hypothetical.” Accordingly, the district court’s denial of Fafalios’s Rule 29 motion was reversed, the judgment of conviction was vacated, and the case was remanded for entry of a judgment of acquittal regarding the charge under 33 U.S.C. §1908(a). (5th Cir, March 14, 2016) 2016 U.S. App. LEXIS 4658
SECOND THOUGHTS ABOUT YOUR SETTLEMENT. TOUGH!
BURAS V. SEA SUPPLY, INC, ET AL.
James Buras, Jr. allegedly Buras sustained injuries while working aboard a vessel owned and/or operated by Sea Supply, Inc. and B & J Martin, Inc. . After reaching maximum medical improvement, Buras signed a release, which settled all of his claims against the defendants. When Mr. Buras signed the release, he stated that he felt good, he was ready to go back to work, and he understood that he was giving up his legal rights in connection with this settlement. When asked if he wanted to speak with a lawyer, Mr. Buras declined multiple times, even specifically Prior to signing the release, Buras’s treating physicians determined that he had reached maximum medical cure and said that he could return to work. Following the settlement, Buras filed a declaratory judgment action, seeking to have the trial court declare the release null and void for various reasons. After conducting discovery, the defendants filed a motion for summary judgment contending that there was no genuine issue of material fact because all of Buras’s claims against the defendants arising out of his accident were settled by way of the release. Following a hearing, the trial court granted the defendants' motion for summary judgment, finding that there was no genuine issue of material fact. Buras appealed, arguing that the trial court erred in finding that no genuine issue of material fact existed. In his one assignment of error, Buras argued that the trial court erred in finding that the defendants proved that no genuine issue of material fact existed as to whether he was fully aware that he was giving up his rights by signing the release. Buras also argued that the evidence presented did not conclusively demonstrate that he was fully aware of and understood his right to seek legal counsel. The appellate court disagreed. The record contained the transcript of the exchange that occurred between Buras and the adjuster, given at the execution of the release, as well as a copy of the release itself. The release specifically stated that by signing the document, Buras voluntarily settled all claims that had arisen in connection with his accident and that he had no more legal rights against the defendants. Additionally, the transcript revealed that the adjuster provided Buras with a thorough and detailed explanation of what specific legal rights he was giving up by signing this release and that he could consult with legal counsel if he wished to do so. Additionally, in his deposition Buras confirmed his understanding of what he agreed to in the release, and testified that no one forced him to settle his claims, that he executed the settlement of his own free will, that he understood he was giving up powerful legal rights, and that no one forced him to sign the release. He further testified that it was his personal choice not to retain an attorney. Thus, the transcript of the exchange during the release execution and Buras’s deposition provided overwhelming evidence that Buras fully understood the rights that he was voluntarily giving up in exchange for settling his claims. The appellate court found that there were no genuine issues of material fact that precluded the granting of summary judgment and affirmed the trial court’s judgment. (La. App. 1st Cir, February 29, 2016, UNPUBLISHED) 2016 La. App. Unpub. LEXIS 67
PRO SE SEAMAN APPELLANT FAILS TO CARRY HIS BURDEN
CHAR V. AMERICAN SEAFOODS, INC.
Abraham Char allegedly suffered injuries four different times while working on American Seafood, Inc.’s vessels. Each time he filed a claim and received maintenance and cure until his treating doctors determined that he had reached maximum medical improvement. American paid for all known bills for Char's medical and treatment for the four different injuries he reported. Char eventually filed his lawsuit against American, asserting claims for negligence, unseaworthiness, and maintenance and cure. American asked for summary judgment and supported its request with declarations, medical records, Char's deposition transcript, and other records. Char did not submit any responsive evidence. The trial court dismissed Char's lawsuit. Char appealed the dismissal, challenging the trial court's legal conclusions about American's alleged negligence, the seaworthiness of its vessels, and his continued entitlement to maintenance and cure. American responded that Char did not submit competent evidence to support an essential element of each claim and that the record showed no genuine issues as to any material fact. American also challenged the sufficiency of Char's brief to present any issue for review. The appellate court began by noting that Char's pro se briefing did not include any assignments of error, legal citations, or citations to any evidence in the record supporting his conclusory arguments. But it did provide sufficient argument to allow American to identify the issues and respond. Therefore, the appellate court exercised its discretion to address the merits of Char's appeal. The appellate court declined to address five arguments that Char made for the first time on appeal. The appellate court next addressed Char’s contention that American negligently caused his injuries, noting that American submitted the only evidence showing the causes of Char's injuries. To defeat the summary judgment motion, Char needed to present competent evidence showing that American's negligence caused his injuries. Because he did not present any evidence to support this claim, the trial court properly dismissed it. Addressing Char’s contention that American’s vessel was not seaworthy because he fell and injured his knees when he lost his balance due to an unanticipated motion caused by it shifting in bad weather, the appellate court noted that American presented uncontroverted evidence showing that the vessel operated in normal sea conditions in moderate weather and was not slippery or otherwise unseaworthy. Char did not provide any contrary evidence about the weather conditions or show that the ship had faulty equipment. Therefore, the appellate court found that the trial court properly dismissed this claim. Finally, Char claimed that American owed him additional maintenance and cure because he had not achieved maximum recovery from his injuries. The appellate court found that American provided uncontroverted evidence that Char's doctors had all determined that Char needed no additional medical treatment they could provide that would improve his condition before American stopped paying maintenance and cure. Char did not submit any evidence contradicting the findings of these physicians. Without any contradicting evidence, the evidence provided by American unequivocally showed that all physicians had released Char from treatment to return to work. Therefore, the trial court properly dismissed this claim. The appellate court held that Char had failed to demonstrate the existence of any genuine issue of material fact relevant to any of his claims. The trial court’s judgment was affirmed. (Wash. Div. 1 App., March 7, 2016, UNPUBLISHED) 2016 Wash. App. LEXIS 395
MY TRIAL WAS UNFAIR BECAUSE I LOST!
AHMED V. GLACIER FISH COMPANY, LLC
Elsadig Ahmed was allegedly injured while working for Glacier Fish Company on one of Glacier's vessels. While the vessel was docked, and Ahmed was working in the vessel's freezer hold for several hours, Ahmed complained to the shift supervisor about pain and numbness in his fingers. The clinic diagnosed Ahmed with frostbite to fingertips. Ahmed later worked for Glacier as a candler, removing bones and other defects from fish on an assembly line. As a result of this work, Ahmed began to suffer from carpal tunnel syndrome in both wrists. Glacier paid for Ahmed's carpal tunnel medical treatments, and Ahmed reached maximum cure for the syndrome. Ahmed eventually filed a lawsuit against Glacier for his injuries, alleging negligence and unseaworthiness under the Jones Act and general maritime law. At trial, Ahmed testified and called five other witnesses. Due to a lack of evidence, the trial court dismissed Ahmed's unseaworthiness claim after the conclusion of his case. Glacier then called seven witnesses to testify. Following a bench trial, the trial court entered findings of fact, conclusions of law, and an order dismissing Ahmed's remaining negligence claim under the Jones Act. The trial court concluded that Ahmed did not carry his burden of proving that Glacier acted negligently. Ahmed filed a timely appeal, along with an appellate brief, which was a verbatim copy of his trial brief submitted below. The appellate court noted that, while Ahmed's opening brief made arguments and provided legal authority supporting his negligence allegations against Glacier, it did not identify any errors made by the trial court in reaching its decision. Ahmed made two arguments, framed as challenges to his legal representation, that could also relate to an error made by the trial court. Ahmed asserted that he did not have an adequate translator at trial and that he had difficulty understanding the translators. Secondly, he noted that he did not have the benefit of a jury trial. The appellate court considered those two issues. Based on the record, the appellate court found there was no evidence that Ahmed requested interpretation services and that the request for an interpreter was denied. In fact, the trial court encouraged Ahmed to use the interpreter and he resisted. Moreover, based on the record, it was not evident that Ahmed is considered a "non-English speaking person" requiring an interpreter under the statute. Therefore, the appellate court concluded that any potential error regarding a lack of interpretation services at trial was not attributable to the trial court's abuse of discretion. The appellate court also found that Ahmed failed to pay the jury fee and that he no longer wanted a jury trial. On the record, it was clear both that Ahmed's counsel actively sought a bench trial instead of a jury trial and that the trial court properly concluded that the parties had waived their rights to a jury trial. Therefore, if there was any error attributable to the trial proceeding as a bench trial, the error was not as a result of an action taken by the trial court. The trial court’s judgment was affirmed. (Wash. Div. 1 App, March 7, 2016, UNPUBLISHED) 2016 Wash. App. LEXIS 375
ZAINEY HOLDS PUNITIVE DAMAGES AVAILABLE FROM NON-EMPLOYERS
HUME, ET AL. V. CONSOLIDATED GRAIN & BARGE, INC., ET AL.
Corey Hume and Clarence Robinson were employees of Consolidated Grain & Barge, Inc., who were working aboard a vessel, owned and operated by Quality Marine Services, Inc., when a running wire of the vessel rose up and struck both men, hitting each of them in the face and head. Both plaintiffs allegedly suffered brain injuries, Robinson lost an eye, and Hume's injuries required him to have the side of his face reconstructed. After plaintiffs filled their seaman’s complaint, alleging Jones Act negligence, unseaworthiness and demanding punitive damages, Consolidated moved to dismiss the punitive damages claim. Quality Marine moved for judgment on the pleadings. In plaintiffs' response to the motions, plaintiffs conceded that, in light of recent Fifth Circuit case law, punitive damages were unavailable for Jones Act negligence and for unseaworthiness. Thus, the court granted Consolidated’s motion and dismissed plaintiffs' claims for punitive damages arising from Jones Act negligence and from unseaworthiness. Quality Marine’s motion for judgment on the pleadings, requested the court to dismiss plaintiffs' claims to recover for employer negligence under the Jones Act, unseaworthiness under general maritime law, and maintenance and cure. Quality Marine also sought dismissal of plaintiffs' claims for punitive damages under general maritime law. Plaintiffs' response failed to address Quality Marine's request to dismiss claims against Quality Marine for employer negligence, unseaworthiness, and maintenance and cure. Thus, because this part of Quality Marine's motion was unopposed and because it appeared to the court that Quality Marine's arguments had merit, the court granted the motion with respect to these claims. Regarding plaintiffs' claims for punitive damages, Quality Marine cited McBride v. Estis Well Service, which held that the Jones Act limits a seaman's recovery to pecuniary losses where liability is predicated on the Jones Act or unseaworthiness. Quality Marine also relied on Scarborough v. Clemco Industries, which held that neither a seaman who has invoked his Jones Act seaman status nor his survivors could recover punitive damages against a non-employer third party. In its opposition, plaintiffs relied on Collins v. A.B.C. Marine Towing, LLC, which declined to follow Scarborough, and held instead that punitive damages were available under general maritime law against a non-employer third party. Collins noted that, since the Scarborough decision in 2004, the Supreme Court had held, in Atlantic Sounding Co. v. Townsend, that a seaman could recover punitive damages for an employer's arbitrary withholding of maintenance and cure. This led the Collinscourt to conclude that the Supreme Court called into question the legal reasoning and conclusions espoused in Scarborough and that, consequently, Scarborough had been "effectively overruled." The court adopted the reasoning set forth in Collins, finding that, in the context of a seaman's claims against a non-employer third party where the Jones Act is not implicated, the seaman can recover punitive damages, noting that the Jones Act had no bearing on plaintiffs' claims against Quality Marine. Therefore, the court held that plaintiffs could bring a cause of action against Quality Marine for punitive damages under general maritime law. Consolidated’s motion to dismiss plaintiffs' claims for punitive damages was granted. Quality Marine’s motion for judgment on the pleadings was granted in part and denied in part. The motion was granted insofar as it regarded plaintiffs' claims against Quality Marine for employer negligence, unseaworthiness, and maintenance and cure. It was denied insofar as it regarded plaintiffs' claims against Quality Marine for punitive damages under general maritime law. (USDC EDLA, March 21, 2016) 2016 U.S. Dist. LEXIS 36183
Updater Note: In this case Judge Zainey unfortunately chose to adopt the absurd reasoning of Judge Fallon in Collins v. A.B.C. Marine Towing, rather than the well-reasoned opinions of Judge Morgan in Howard v. Offshore Liftboats and Lee v. Offshore Logistical and Transports LLC, which both have a diametrically opposed holding on whether Scarborough v. Clemco Ind., remains the Fifth Circuit rule on the issue whether punitive damages are available in seamen's general maritime law negligence actions against non-employer third parties. As even the Collins decision recognized, the Townsend decision was specific to the maintenance and cure context and did not address whether punitive damages are available for claims of unseaworthiness. In fact, the United States Supreme Court in the Townsend decision took pains to distinguish maintenance and cure, for which it concluded punitive damages are available, from a seaman's remedies for negligence and unseaworthiness, for which punitive damages are generally not available under the Milesdecision, the Scarborough decision, and the McBride decision. The United States Court of Appeals for the Fifth Circuit's Scarboroughdecision, which held that a seaman may not recover punitive damages against either his employer or a non-employer, is binding on a court in the United States Fifth Circuit and has never been overruled.
CONFLICTING EVIDENCE AND QUESTIONS OF FACTS
MATTHEWS V. WEEKS MARINE, INC.
Brian Matthews allegedly suffered an injury while working for Weeks Marine, Inc. aboard a dredge as a cook. Matthews claimed that he left the galley, where he worked, and walked out to the stern deck to smoke a cigarette. As he walked toward the stern, Matthews allegedly slipped on what he described as a "slick spot" and twisted his right knee. Matthews could not describe what caused him to slip, but he was certain that he slipped on something other than water. Initially, Matthews failed to report his alleged injury. Over the next few days, his pain worsened, and his knee became swollen. Doctors subsequently diagnosed him with complex tears of the lateral meniscus, bursitis, and damage to the cartilage of the knee. His treating physician eventually recommended a right total knee arthroplasty. Matthews requested maintenance and cure from Weeks, including surgery costs, which Weeks denied. Matthews then filed suit, alleging that he was entitled to maintenance and cure, as well as damages for Weeks’ negligence and the unseaworthiness of the dredge. Weeks moved for partial summary judgment on the negligence and unseaworthiness claims and Matthews moved for partial summary judgment on his maintenance and cure claim. Both parties filed oppositions to each parties’ respective motion. The court pointed to Matthews’ testimony that he slipped and fell on a slick spot on the deck, suggesting that Weeks possibly was negligent for not adequately cleaning the deck. Weeks argued that the evidence did not create a genuine issue of material fact. However, the court found that Matthews had introduced evidence to show that Weeks may have acted negligently by failing to clean the deck. This testimony was enough evidence to meet his "featherweight" burden of proof under the Jones Act. As to the unseaworthiness claim, Matthews argued that the lack of slip protection on the deck of the dredge rendered it unseaworthy. The court found that the lack of slip protection may have caused the dredge to be unseaworthy if Matthews allegations were proven as factual at trial. Turning to Matthews’ maintenance and cure claim, the court agreed with Weeks that the treating physician’s uncertified records were not appropriate for consideration at the summary judgment stage. Secondly, even if Matthews’ medical records were admissible, Weeks had introduced evidence that contradicted the treating physician’s report, creating a question of fact. Both motions for partial summary judgment were denied. (USDC EDLA, March 7, 2016) 2016 U.S. Dist. LEXIS 28666
EMPLOYER SUCCESSFULLY PLEADS A MCCORPENDEFENSE
WALKER V. PIONEER PRODUCTION SERVICES, INC., ET AL.
Michael Walker filed suit, bringing claims under the Jones Act and general maritime law, claiming that he sustained an injury while employed by Pioneer Production Services, Inc. as a rigger, and assigned to a vessel owned, operated, and/or managed by Hornbeck. Walker claimed that he slipped and fell on slippery substances and loose deck boards on the stern deck of the vessel and allegedly suffered injuries to his cervical spine and lumbar spine. Pioneer moved for partial summary judgment, arguing that, under McCorpen v. Gulf Central S.S. Corp. and its progeny, due to Walker’s intentional concealment of his medical history, he was not entitled to maintenance or cure related to any treatment to his back and that his claim for maintenance and cure related to any back treatment should be denied. In his response, Walker conceded that the three prongs of McCorpenwere met with regard to his back injuries, but requested the court to recognize certain qualifications regarding his concession. The court declined to do so, as the requested qualifications failed to raise a genuine issue of fact with regard to the maintenance and cure claims that were the subject of Pioneer’s motion. Pioneer’s motion for partial summary Judgment was granted and Walker’s claims for maintenance and cure related to any back treatment were denied with prejudice.
PERMANENT REASSIGNMENT BARS FINDING OF SEAMAN STATUS
FEEDER V. NABORS OFFSHORE CORPORATION
Raymond FEEDER was employed by Nabors Offshore Corporation as an assistant driller, assigned to a platform rig that was stacked and located at a Kiewit Offshore Services yard. FEEDER experienced a brain aneurism while sitting on a bench in the smoking area at the turnstile of the Kiewit yard. That same day, FEEDER alleges he was placed on leave pursuant to the Family and Medical Leave Act, and three months later, Nabors terminated him because he had exhausted his leave of absence benefits. At the time of his disabling accident, FEEDER was assigned to a land-based position, however, he claimed that his employment with Nabors has spanned 12 years during which time he has been transferred approximately 25 times to various rig jobs. FEEDER contended that he qualified as a seaman under the Jones Act because the majority of his assignments over his employment history had been aboard jack-up rigs and barge rigs, and he has spent considerably more than 30% percent of his time aboard a fleet of vessels owned and operated by Nabors. After FEEDER filed his seaman’s complaint, Nabors moved for summary judgment that FEEDER was not a seaman under the Jones Act or general maritime law. Nabors did not dispute FEEDER’s claims about his work history, but notes that FEEDER worked exclusively on land-based platform rigs after his reassignment on November 18, 2012, approximately a year and a half before the incident. Nabors pointed to change of employment status forms, evidencing FEEDER’s permanent transfer. Nabors argued that summary judgment was appropriate because there is no genuine issue of material fact that FEEDER performed only land-based work on platform rigs subsequent to his reassignment on November 18, 2012. FEEDER countered that summary judgment was inappropriate because the majority of his work assignments with Nabors prior to 2012 were vessel-based assignments, insisting that the court examine a maritime worker's entire work history with a particular employer in assessing whether the employee qualifies as a seaman. However, the court noted that this very argument was rejected in Chandris. What was lacking from the summary judgment record, was any evidence supporting the transitory nature of FEEDER’s reassignment. FEEDER simply speculates that he might have been reassigned to vessel-based work on jack-up rigs at some point in the future. The court noted that speculation would not suffice to raise a genuine issue of material fact about whether FEEDER was a seaman. The undisputed material facts were that FEEDER primarily performed vessel-based work on jack-up rigs before his reassignment, and he exclusively performed land-based work on platform rigs following his reassignment. The record supported a finding that this reassignment was permanent and FEEDER should not be entitled to claim seaman status on the basis of prior service at sea. Nabors' motion for summary judgment was granted and FEEDER’s claims were dismissed. (USDC EDLA, March 24, 2016) 2016 U.S. Dist. LEXIS 38616
I WALKED INTO A TABLE, SO MY EMPLOYER IS NEGLIGENT
ALLEN V. NCL AMERICA, LLC.
Marvin Allen filed this action against NCL America, LLC, who he worked for as a galley hand, alleging injuries sustained while employed aboard its vessel, alleging claims under the Jones Act and general maritime law. Allen claimed that while carrying a tray of silverware from the dishwasher to a table, he struck his knee on the leg of a table. Allen claimed he continued working, but again struck his knee on a table leg while carrying a stack of plates. Allen went on to allege that as a direct result of NCL’s negligence, he sustained great physical pain, mental anguish, and extreme shock to the nervous system. NCL moved to dismiss all counts pursuant to FRCP 12(b)(6), asserting that Allen had failed to comply with Twomblyand Iqbal, in failing to state a claim upon which relief could be granted. The court found that Allen’s cause of action under the Jones Act exemplified the type of "bare-bones" allegations that Twomblyand Iqbal prohibit. Allen’s complaint was a formalistic recitation of the elements of the cause of action and contained only conclusory language not supported by sufficient factual matter to state a claim that NCL was negligent. Allen’s factual allegations offered no insight into the basis of the claim. The fact that Allen was carrying either plates or silverware at the time he walked into a table alone did not give rise to a claim. Allen similarly alleged that the vessel’s unseaworthy condition was the proximate cause of his injuries, in that NCL failed to adequately instruct, train and supervise the crew. The court found that Allen’s unseaworthiness claim suffered from the same deficiencies as his Jones Act negligence claim. Allen’s unseaworthiness claim presented only conclusory legal conclusions proscribed by Twomblyand Iqbal. Having found that the legal conclusions in Allen’s complaint failed to support the Jones Act or unseaworthiness causes of action under Iqbal and Twombly, the court granted NCL’s motion to dismiss both causes of action. Finally, the court addressed Allen’s allegation that NCL had wrongly delayed and/or refused to provide maintenance and cure benefits. Allen further alleged that punitive damages were available due to NCL’s willful disregard of its maintenance and cure obligation. The court found that Allen’s complaint against NCL sufficiently stated a plausible claim for breach of maintenance and cure, and refused to dismiss Allen’s final cause of action. NCL’s motion to dismiss pursuant to FRCP12(b)(6) was granted in part and denied in part. (USDC NDOH, March 29, 2016) 2016 U.S. Dist. LEXIS 41293
SEAMAN FAILS TO PROPERLY CLAIM NEGLIGENCE OR UNSEAWORTHINESS
MARTINEZ V. THE CITY OF NEW YORK
Charles Martinez initiated his Jones Act suit, alleging that he was injured by the City of New York’s negligence while working on a City-owned vessel and fell from a ladder while climbing out of the ferry's southeastern steering compartment, causing injury to his right knee. Martinez’s complaint alleged Jones Act negligence, unseaworthiness, and failure to pay maintenance and cure. After discovery came to a close, the City filed a motion for summary judgment, pursuant to FRCP 56, arguing that Martinez had failed to state a claim for which relief could be granted. The court found that Martinez’s complaint was wholly conclusory, including no specifics about the accident that he suffered or how it came to pass. The complaint's sole substantive allegation regarding the accident was that Martinez sustained injuries to his right knee when he slipped and fell from a ladder located in the vessel's engine room. In his summary judgment briefing, Martinez put forward three substantive theories: first, that the ferry was unseaworthy because the ladder he climbed lacked proper handholds; second, that a dangerous condition existed because the deck of the steering compartment was covered with slippery oil and grease; and third, that the City was negligent under the Jones Act for failing to provide adequate handholds or fixing the leaks that led to the compartment's slippery floor. Martinez also claimed that he was entitled to medical expenses under the doctrine of maintenance and cure, which the City failed to pay. After thoroughly reviewing the record, the court found that the factual record simply did not amount to a prima facie case that the ladder was defective. Martinez did not establish where he was on the ladder when the accident occurred. The photographs and diagrams showed that a person reaching the top of the ladder from the steering compartment could grab on to the coaming, or onto the hatch cover, which is directly by the edge of the hatch and secured by a stanchion, flatly contradicting Martinez’s assertion that he had no available handhold. In the absence of evidence that the ladder was defective, there was no basis for a jury to find that the ferry was unseaworthy or that the City was negligent in operating ferry with the ladder in use. Martinez’s assertions about the state of the compartment were backed only by his own affidavit or his own deposition testimony. Pictures of the compartment along with his affidavit show the oil contained within a cofferdam and two paint cans; yet Martinez stated in his affidavit that the pictures were a fair and accurate representation of the condition of the space on the day of his accident. The second major flaw in Martinez’s oil and grease argument was that Martinez acknowledged at his deposition that he was the person responsible for keeping the area clean of oil and grease. The court concluded that, with the steering compartment capable of being cleaned and with the City having hired someone, namely Martinez, to do so, it was unclear what un-taken measures Martinez was contending rendered the vessel unseaworthy or breached the standard of care required by the Jones Act. Summary judgment was therefore granted in favor of the City. With regard to Martinez’s maintenance and cure claim, the court observed that each side's position regarding the status of the bills being paid or unpaid, was backed up only by their own statements. Therefore, there existed a genuine factual dispute precluding summary judgment. The City's motion for summary judgment was granted in part, with respect to Martinez’s negligence and unseaworthiness causes of action, and denied in part, with respect to the maintenance and cure cause of action. (USDC SDNY, March 30, 2016) 2016 U.S. Dist. LEXIS 42569
DELAY IN PRODUCTION OF ELECTRONIC DATA DOES NOT WARRANT SANCTIONS
MARQUETTE TRANSP. CO. GULF ISLD, LLC V. CHEMBULK WESTPORT M/V, ET AL.
This action arises out of the capsizing of Marquette Transportation Company Gulf-Island’s vessel, the M/V KRISTEN ALEXIS. Marquette alleged that its vessel, KRISTEN ALEXIS, was moored in the New Orleans harbor when Mi-Das' vessel, the M/V CHEMBULK WESTPORT was operating at high speeds in the harbor causing the KRISTEN ALEXIS to flood and capsize. Marquette filed this action, alleging that the damages it sustained from the capsizing of its vessel were estimated at $1,200,000. In Mi-Das' answer to the complaint, it asserted a third party action against Weeks Marine, Inc. and its vessel the M/V CAPTAIN PETE, frivolously claiming that it was not responsible for the capsizing of Marquette’s vessel, but rather Weeks Marine was responsible, because the Weeks’ vessel was operating in close proximity to the KRISTEN ALEXIS immediately before it was capsized. Mi-Das sought indemnity from Weeks in the event that it was held liable to Marquette, and in the alternative, alleged that the CAPTAIN PETE was superseding cause and was also liable [see August 2015 Longshore Update]. Marquette now moves for sanctions, pursuant to FRCP 37(c)(1), upon Mi-Das for its failure to disclose and/or supplement information as required by FRCP 26(a) and 26(e). Marquette initially requested a copy of Chembulk's VDR data and Mi-Das provided its Rule 26(a)(1) initial disclosures, that included an incomplete copy of the data on a thumb drive. The incomplete data did not contain either audio data from 0800 to 1630 hours nor radar data from 1630 to 2100 hours. Marquette later propounded its interrogatories and requests for production upon Mi-Das and Mi-Das responded, directing Marquette to the incomplete VDR data that Mi-Das previously produced in its initial disclosures. In an effort to investigate the cause of the missing VDR data, Marquette contracted with Mackay Communication, a VDR technician company, who performed a diagnostic test of the VDR, but Mi-Das refused to allow Mackay to perform a twelve-hour download of the vessel's VDR data. The court later ordered the download. Marquette now contends that Mackay’s representative later opined that the missing data was deleted intentionally. Marquette later took Mi-Das's corporate deposition in which the deponent testified that he was given a DVD/CD-ROM containing the full download of the VDR data from the vessel's master, which he believed was taken to Singapore. After the deposition and in response to another set of request for production, Mi-Das stated that it was unable to locate the disc after a diligent search. Eventually Mi-Das produced the allegedly missing disc. Marquette contended that it was entitled pursuant FRCP 37(c) to reasonable expenses caused by Mi-Das' failure to disclose and/or supplement its discovery responses as required by FRCP 26(a) and 26(e) and for attorneys' fees and expenses it incurred to contract with Mackay to inspect Chembulk Westport's VDR data. In opposition, Mi-Das also cited FRCP 37(c) and argued that it only applies when there is a complete failure to produce or disclose evidence and does not apply when there is simply a delay in production. The court initially noted that, although not cited by Marquette, FRCP 37(e), which applies to electronically stored information, requires a two-step test to determine if sanctions are appropriate: (1) whether the electronically stored information was lost because a party failed to take reasonable steps to preserve it, and (2) the lost electronically stored information cannot be restored or replaced through additional discovery. Marquette did not contend that the electronically stored information, the VDR data, was not produced to it on a disc. Marquette's only contention was that Mi-Das did not take reasonable steps to find the disc resulting in additional expenses in the form of the retention of an expert which cost them $13,576.55. The court concluded that such a contention was insufficient to impose sanctions under FRCP 37(e) because the full data contained on the VDR was discovered and produced. Accordingly, the court ordered that the motion for sanctions was denied. (USDC EDLA, March 11, 2016) 2016 U.S. Dist. LEXIS 31540
Updater Note: Mi-Das should be sanctioned for even filing its completely frivolous action against Weeks Marine.
CAN’T GET SUMMARY JUDGMENT EVEN WITH VIDEOS OF THE INCIDENT
CAHILL V. GOLDEN GATE BRIDGE, HIGHWAY AND TRANSPORTATION DISTRICT
Richard Cahill, a deckhand, fell from the deck of a ferry, which was owned and operated by Golden Gate Bridge, Highway, & Transportation District, while using a long hook to catch a hanging dock line and pull it toward the ferry. Cahill brought claims for unseaworthiness and Jones Act negligence, and the District moved for summary judgment on both claims. The District’s motion was based on Cahill's deposition testimony that he did not believe the ferry captain was responsible for his injury. The court noted that the District's motion addressed negligence only based on the conditions of the vessel, and does not address negligent operation. The District contended that Cahill could not recover for negligence because the District had no notice of any unsafe condition. The District also argued that Cahill could recover based on negligence or unseaworthiness because his injury was caused solely by his own negligence. Cahill responded in opposition that violations of two Coast Guard regulations established both negligence and unseaworthiness per se: 33 CFR §83.06, which requires that vessels be operated at safe speeds such that they can avoid collision, and 46 CFR §42.15-75(d), which requires guardrails in certain circumstances on certain vessels. Following a formal hearing and taking the evidence into account, as well as common knowledge that the decks of ferries can be unstable depending on maneuvers and sea conditions, the court concluded that a rational jury could conclude that the open chock on the ferry was not "reasonably fit for its intended use" because its width created an unnecessary risk of crew members falling overboard. The apparent lack of other accidents related to the chock, and lack of seamen raising concerns about its safety, may tend to support the District's view that the vessel was seaworthy, but it did not bar Cahill's claim as a matter of law, and it was not the court's role to weigh countervailing evidence on a motion for summary judgment. Turning to the remaining elements of an unseaworthiness claim, the court also found that a jury could conclude that the width of the chock proximately caused Cahill's injury, and there is no dispute that the warranty of seaworthiness extended to Cahill or that the chock is "a piece of the ship's equipment." The court also pointed out that, whether Cahill was negligent in stepping toward the chock, and the percentage of fault attributable to any such negligence, were questions that require a factfinder to weigh the evidence and could not be resolved on the present motion. Turning to Cahill’s negligence claim, the court declined to resolve the contours of a potential per se claim, because if there was evidence on which a jury could find that the ferry approached the dock at an unsafe speed, the failure to operate at a safe speed could support a negligence claim even in the absence of a specific regulation. Based on the record as a whole, including but not limited to Cahill’s expert opinion, the two videos, and Cahill's testimony that the ferry bumped the dock significantly harder than usual, the court found that a rational jury could find that the ferry captain, and vicariously the District, breached his duty of care by approaching the dock too quickly and from a wider-than-usual angle. A jury could also find that such negligence played at least "the slightest" part in causing Cahill's injury, satisfying the "featherweight causation standard" applicable to Jones Act claims. The District's motion for summary judgment was denied as to Cahill's Jones Act negligence claims. (USDC NDCA, March 18, 2016) 2016 U.S. Dist. LEXIS 35467
COURT DENIES SUMMARY JUDGMENT ON CONTRIBUTORY NEGLIGENCE ISSUE
STAMPS V. GOLDEN GATE SCENIC STEAMSHIP CORPORATION
Anthony Stamps and Kiante London were deckhands aboard a vessel, when the captain lost control of the vessel. The captain ordered the deckhands to deploy the vessel's anchor and the Coast Guard and a passing ferry boat helped the crippled vessel return to berth. During the rescue operation, Stamps and London pulled the anchor on board. Each was allegedly injured in the process. As a result, Stamps filed a lawsuit against the owner of the vessel, Golden Gate Scenic Steamship, asserting Jones Act negligence and general maritime law claims. Golden Gate asserted several affirmative defenses in the matter. Stamps sought partial summary judgment with respect to Golden Gates second and eighteenth affirmative defenses: comparative fault and intentional conduct, respectively. The court found that there were disputed issues of fact as to whether the Simeonoff exception precluded Golden Gates’ affirmative defenses. The parties contest whether Stamps’ retrieval of the anchor was in response to the captain's orders to bring the anchor on board the vessel. Although Stamps contested the reliability of Golden Gates’ evidence, the court declined to resolve such conflicting testimony on summary judgment. Viewing the evidence in the light most favorable to Golden Gate, the court found that a reasonable trier of fact could find that Stamps was not acting pursuant to the captain's orders when retrieving the anchor. Accordingly, summary judgment is inappropriate, and Stamps’ motion was denied. (USDC NDCA, March 8, 2016) 2016 U.S. Dist. LEXIS 29740
COURT DENIES RECOVERY OF MAINTENANCE & CURE OVERPAYMENT
BLOCK ISLAND FISHING, INC. V. ROGERS
Jamie Rogers is a commercial fisherman and former employee of Block Island Fishing, Inc, who was allegedly injured while working on board a Block Island fishing vessel. Rogers fell off the top bunk while sleeping and injured his torso. On returning to port, Rogers was diagnosed and treated for a fractured rib. Rogers's treating physician cleared Rogers to return to work without restrictions. Block Island sought declaratory judgment as to the amount of retroactive maintenance owed to Rogers and as to whether it has any continuing obligation to pay maintenance and cure. Block Island also sought $13,027.80 in overpayments of maintenance and cure attributable to Rogers's failure to provide accurate information regarding his expenses and medical treatment. Block Island contended that Rogers, acting through his law firm, induced maintenance payments based on a monthly rental expense of $1,600, when in truth, he was paying at most half that amount. Rogers responded by filing a counterclaim alleging negligence under the Jones Act, unseaworthiness, continuing maintenance and cure, negligent or intentional failure to provide maintenance and cure, and lost wages. The court found that the undisputed evidence showed that Rogers vacated the his prior apartment, where he was paying $1,600 per month, and that his monthly rent since leaving had not exceeded $800. Block Island relied on the $1,600 monthly rent figure and that an overpayment resulted. The issue was whether the court could do anything about the maintenance overpayment in a restitutionary sense. Relying on Boudreaux v. Transocean Deepwater, Inc., the court found that once a shipowner pays maintenance and cure to the injured seaman, the payments can be recovered only by offset against the seaman's damages award, not by an independent suit seeking affirmative recovery. Block Island also sought a declaratory judgment establishing a specific date upon which its maintenance and cure obligations to Rogers came to an end. Based upon the record evidence , the court found Rogers had reached maximum medical improvement as of November 18, 2014, and declared that as the termination date for the maintenance and cure obligation. Block Island's request for attorneys' fees was denied, as was Rogers’ counterclaim. (USDC DMA, March 3, 2016) 2016 U.S. Dist. LEXIS 27307
SHIP SEEKS SALVAGE AWARD FOR HELICOPTER THAT LANDED ON IT
SUNGLORY MARITIME LTD., ET AL. V. PHI, INC., ET AL.
A helicopter operated by PHI, Inc. was traveling on an outbound flight over the Gulf of Mexico, carrying two crew and seven passengers. When the helicopter was approximately 10 miles from shore the pilot in command detected an unusual vibration coming from the aircraft. Unsure of the source of the vibration, and about 50 miles away from the destined platform, the pilot turned the helicopter around and headed for shore. When the helicopter was approximately six minutes from land, it flew above a staging area for the port of Corpus Christi, where cargo ships anchor awaiting berths. With several ships in sight, the pilot decided the safest course of action was to land on one of the anchored vessels. Without calling the vessel first to request permission to land, the helicopter landed on a vessel owned by Sunglory Marine Ltd. and managed by Aeolian Investments S.A., which contained a hatch cover designated "H," which is usually associated with helicopter operations. The vessel did not suffer any damage from the landing and ultimately transported the helicopter into port in Corpus Christi, where the helicopter was removed from the ship and the helicopter crew disembarked. Plaintiffs filed a complaint seeking a salvage award for recovery and transport of the helicopter. PHI moved for partial summary judgment, arguing that the plaintiffs were not entitled to an award of maritime salvage under either general maritime law or the 1989 Salvage Convention for their role in the incident. PHI argued that, upon landing on the vessel without incident, the helicopter crew performed a normal shutdown during which no vibrations were detected. PHI agreed that plaintiffs were entitled to their reasonable and actual out-of-pocket costs incurred as a result of the helicopter landing on the vessel, but disputed plaintiffs' claim that they were entitled to an award of maritime salvage. Although plaintiffs alleged that they qualified as voluntary salvors of the helicopter who should be given a monetary award based on the value of the helicopter, a maritime salvage award in this case would be wholly unprecedented. In opposition, plaintiffs argued that there were disputed issues of material fact regarding whether the helicopter was property that may be the subject of marine salvage, whether the helicopter was faced with a reasonable apprehension of marine peril when it made an emergency landing on the vessel in navigable waters, whether the actions of the vessel and her crew constitute voluntary salvage service, whether plaintiffs, as vessel owners, had a right to claim salvage in this matter, and whether the 1989 Salvage Convention requirements were met. In reply, PHI argued that plaintiffs had erroneously characterized the purely legal issues in the case as issues of fact. Before even reaching the three elements of a salvage claim, PHI urged the court to find that, as a matter of law, the vessel owners were not the proper parties to claim a salvage award, and the helicopter is not property subject to a salvage award. The court initially found that the crew need not join the suit in order for the vessel owners to pursue a claim, and the vessel need not have faced significant risk of damage in order to allow the vessel owners to seek a salvage award. Alternatively, the court found that a genuine, disputed issue of material fact existed concerning whether the helicopter posed a risk to the vessel, precluding summary judgment. Although PHI argued that, even considering this case under the facts most favorable to plaintiffs, they could not make out a claim for salvage, the court observed that discovery had not yet been completed, and thus material facts, including those that may be favorable to plaintiffs, remained outstanding. Therefore, the court found that summary judgment on questions of fact was premature, and declined to resolve the questions of marine peril or voluntariness. Although PHI correctly argued that, as a general rule, a party who does not participate in the salvage service is not entitled to a salvage award, an exception to the rule permits the owner of a salving vessel to share in the award, even if the owner does not take part in, direct, or even know about the salvage operation. Thus, PHI was not entitled to summary judgment on the ground that the vessel owners did not join others in the suit. The court concluded that genuine, disputed issues of material fact, which precluded summary judgment, remained regarding whether the helicopter faced a marine peril and whether the vessel voluntarily rendered service. Accordingly, PHI's motion for partial summary judgment was denied. (USDC EDLA, March 4, 2016) 2016 U.S. Dist. LEXIS 27765
WHY ISSUE A SCHEDULING ORDER IF YOU ARE JUST GOING TO IGNORE IT
SMITH V. BISSO MARINE, LLC.
Matthew Tanner Smith was hired by Bisso Marine, LLC as a diver/dive tender. After Smith performed several deep dives, he started to experience dizziness and vertigo. Specialists discovered through objective findings that Smith had sustained a central nervous system injury to his inner ear which was proximately caused by his dives. After Smith filed suit against Bisso, alleging that Bisso violated safety guidelines by allowing him to dive despite two physicals showing problems with his left ear, asserting claims under the Jones Act and the general maritime law. After the court entered the scheduling order, the original deadline to amend pleadings passed without any amendments to the original pleadings. Following the expiration of the amended pleading deadline, Smith moved to amend the original complaint. The motion was opposed by Bisso, on grounds the motion was untimely and asserted completely new claims, which were futile, as the new claims were prescribed and did not relate back to Smith’s original complaint. The court disagreed with Bisso’s position, finding the newly asserted claims, negligence for offshore operations and failure to follow safety guidelines, arose out of the "conduct, transaction or occurrence" referenced in the original complaint. The court also concluded that Bisso was not without any degree of notice of Smith’s "new" claims. Considering the court's conclusion that the newly asserted claims arose out of the "conduct, transaction or occurrence" referenced in the original complaint, and that Bisso was not without notice of a claim of operational negligence even with the filing of the original complaint, the court concluded the amendment should not be barred, notwithstanding the fact that the scheduling deadline had expired. Acknowledging Bisso’s argument of prejudice, unnecessary costs and judicial inefficiency, in order to cure any potential prejudice to Bisso that the granting of the motion might occasion, the court entered a new scheduling order for purposes of allowing additional discovery related to the recently-asserted claims, and noted it would entertain Bisso’s request for reimbursement of reasonable costs, excluding attorney's fees, that might be incurred if duplicative expert reports or depositions were required. The motion to amend the original complaint was granted. (USDC WDLA, March 4, 2016) 2016 U.S. Dist. LEXIS 28202
DON’T RELY ON OTHERS TO DECIDE WHAT MARITIME COVERAGES YOU NEED
OMEGA DEMOLITION GROUP V. INDIANA COMPENSATION RATING BUREAU
Omega Demolition Group is an Illinois subcontractor that demolished an Indiana bridge over the Ohio River. Indiana Compensation Rating Bureau (ICRB) is the plan administrator for Indiana's worker's compensation insurance policy. Omega filed suit against ICRB alleging that ICRB negligently recommended insurance coverage, after inspected the worksite, interviewing an Omega employee, and then made a specific classification recommendation for insurance coverage not protecting Omega from a Jones Act lawsuit. ICRB assigned Omega's worker's compensation insurance policy to Technology Insurance. During demolition, Omega’s employee, James McWorthey, was injured on the job and subsequently sued Omega in state court under the Jones Act and was awarded a $35 million judgment against Omega. Omega alleged that Technology began defending Omega against McWorthey’s claim, but later refused to defend or indemnify Omega because its policy did not cover Jones Act lawsuits. Prior to entry of McWorthey's large judgment, Omega brought suit against Technology in the Northern District of Illinois, and later, this suit in the Southern District of Indiana against ICRB to preserve its claim under the statute of limitations. Omega's Illinois suit claims that because Technology began defending Omega against McWorthey, it was estopped from denying coverage for McWorthey's Jones Act claim. Ultimately, Omega's Indiana negligence claim will be mooted if the Illinois court rules that Technology must cover the McWorthey claim. Omega assigned all of its interests in this case, along with other rights and interests, to McWorthey. Omega then asked the court to stay the case pending the resolution of its suit against Technology. ICRB agreed with the stay, but asked the court to first rule on its motion to substitute McWorthey as plaintiff in the case. Following the general principle that the forum of the first-filed suit is favored to proceed, and by agreement of the parties, this court deferred to the Illinois court to resolve the suit between Omega and Technology before proceeding with this case. Any issues left unresolved in the Illinois case could be addressed once the stay was lifted. Omega's motion to stay is therefore granted. Furthermore, the court granted ICRB's motion to substitute. (USDC SDIN, March 23, 2016) 2016 U.S. Dist. LEXIS 38228
ANOTHER REMOVAL ACTION BITES THE DUST
HARRISON V. CROWLEY MARITIME CORPORATION, ET AL.
Jacob Harrison filed his seaman’s complaint in state court. Relying on the holding in Ryan v. Hercules Offshore, Inc., Crowley Maritime Corporation removed the case to federal court, asserting that removal was appropriate under the amended language of 28 U.S.C. §1441, because this was a civil case of admiralty or maritime jurisdiction within the court's original jurisdiction under 28 U.S.C. §1333 and complete diversity under 28 U.S.C. §1331. The federal district court indicated that it would continue to follow the long established practice in the circuit that exempts general maritime and admiralty claims from removal absent an independent basis for federal court jurisdiction. The court noted that Harrison elected to bring his action in state court. Crowley removed to federal court based upon the district court's admiralty and maritime jurisdiction and complete diversity. Harrison sought leave to amend his complaint to add Furie Operating Alaska, LLC and Oil States Energy Services, contending that the new parties were necessary to his case, and averring that if he was not allowed to add these new parties in the case, he would be forced to sue them in a separate proceeding which would waste scarce judicial resources. The addition of Furie Operating Alaska, LLC destroyed complete diversity in the case. The court found that complete diversity was lacking, and none of Harrison’s claims raised a federal question. As such, the court lacked diversity jurisdiction, lacked subject matter jurisdiction of this case, and remanded the matter to state court. (USDC SDTX, March 3, 2016) 2016 U.S. Dist. LEXIS 31328
ANOTHER REMOVAL ACTION BITES THE DUST
WHITE V. DONJON SHIPBUILDING AND REPAIR, LLC, ET AL.
Paul White is a maritime electrician who was employed by Top Hand, LLC, an employment agency. White was allegedly injured while working on a tugboat in Donjon Shipbuilding and Repair, LLC’s shipyard, where it was undergoing repairs. White claimed he was injured while descending a ship's ladder from the bridge to the bow deck on tug. The ladder was allegedly missing a bottom step. White claimed he suffered damage to his ankle which required surgery. White filed his complaint in state court, naming Donjon, and its subsidiaries Donjon Marine Company, Inc., and Seajon II, LLC as defendants, alleging that the injuries sustained were the direct and proximate result of the negligence of the vessel owner, Seajon, and its general partner, Donjon Marine. Defendants removed the case to federal court, maintaining that removal under 28 U.S.C. 1441(a) was proper based on admiralty or maritime jurisdiction as outlined in §1333(1). White moved to remand the matter back to state court. The court initially noted its view that, absent diversity of citizenship, proper removal requires that the underlying state court complaint present a question of federal law. The court went on to observe that the complaint did not allege that the case was governed by maritime law. Instead, it was defendants who invoked the court's jurisdiction under admiralty in their notice of removal. Because White sought a trial by jury on his negligence claim (albeit only after this matter was removed to federal court), the court concluded that the case should be remanded to state court under the saving to suitors clause. Finding no basis for an award of attorney's fees, the court denied White’s request for same. (USDC WDPA, February 24, 2016) 2016 U.S. Dist. LEXIS 30896
Quotes of the Month . . .“A ship in harbor is safe, but that is not what ships are built for.”-- John Shedd
“Out of clutter, find simplicity.”-- Albert Einstein
“Nothing is so painful to the human mind as a great and sudden change.”-- Mary Shelley
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