May 2011
Notes From Your Updater - Don’t Miss It!- Longshore Practice in the 21st Century: Striving and Thriving in Challenging Economic Times through Prevention, Protection and Preservation. Signal Mutual Indemnity Association Ltd. has again prepared an educational event on the cutting edge of Longshore practice. To ensure that the perspectives of all the major industry players involved are represented Signal has joined with the National Association of Waterfront Employers, the Shipbuilders Council of America and the Longshore Claims Association to cosponsor this unique conference. Based on the requests of the various member constituencies the program will focus on the impact of current national and international economic trends on practice and procedure under the Act. The faculty includes numerous government representatives, medical professionals and expert practitioners. The conference will be held from May 24 to May 25th, with preregistration and a welcome reception on May 23, 2011, at the Hyatt Regency Jacksonville Riverfront, Jacksonville, FL, recently named one of the world’s best hotels by Expedia Insiders. Get your registration form here.
OALJ Chief Judge Stephan L. Purcell announced the appointment of Judge Paul Johnson as the new Associate Chief Judge for Longshore. Judge Johnson has been the Acting Associate Chief Judge for Longshore since Judge Sutton’s retirement in December 2010, and his appointment to the position on a permanent basis became effective April 10, 2011. Judge Johnson obtained his Bachelor’s Degree from the University of Virginia, his JD from the Columbus School of Law at Catholic University, and his LLM from the University of Virginia . Judge Johnson previously served in the U.S. Navy Judge Advocate General’s Corps, worked as an Assistant United States Attorney in the Southern District of California litigating cases before the U.S. District Court and the U.S. Court of Appeals for the Ninth Circuit, and served as Associate Counsel in the U.S. Navy’s Office of General Counsel in San Diego. Prior to joining the Department of Labor’s Office of Administrative Law Judges, Judge Johnson also spent several years in private practice in San Diego litigating cases in a variety of areas including business law, trade secrets, employment law, environmental law, securities law and toxic tort matters.
Loyola University’s Institute for Continuing Legal Education is hosting A Day with the DOL- Houston Office, on May 17, 2011, at the Mickey Leland Federal Building, Houston, TX. The presentation, which will offer participants the chance to go one on one with OWCP and OALJ on Longshore Questions From A to Z, offers 4.75 CLE credit hours. You can review the agenda and register on line.
LACK OF CREDIBILITY TORPEDOES PRIMA FACIE SHOWING OF INJURY
GOLD V. DIRECTOR, OWCP [DOLPHIN SERVICES, LLC]
Circuit Court Opinion
BRB Decision
ALJ Decision
Michael Gold worked for Dolphin Services, L.L.C. as an offshore rigger. He allegedly woke up with back pain one morning and reportedly notified his supervisor of the pain, alleging that his back was injured while performing his duties. However, he did not seek medical attention and continued to work. Approximately two months later, Gold’s employment was terminated because he reported to work with alcohol in his system. Gold did not seek out medical attention for his alleged back condition until approximately two months after his termination. Gold eventually filed four “claim for compensation” forms, each identifying different dates of injury. Dolphin controverted Gold’s right to benefits, refusing medical care and compensation. The ALJ who conducted the formal hearing found that Gold’s credibility was suspect and the evidence was insufficient to establish a prima facie case that an injury occurred. The ALJ also found that no medical evidence supported a finding that Gold suffered an injury. In the alternative, the ALJ found that even if Gold could show he sustained an injury, there was insufficient evidence to establish that any work-related accident, exposure, event, or episode occurred that could have caused the injury. The ALJ based this finding on the many internal inconsistencies in Gold’s statements, as well as the testimony from others that contradicted Gold’s testimony. The ALJ therefore denied Gold’s claim for benefits. Gold appealed the ALJ’s decision to the BRB, which concluded that there was sufficient evidence in the record to support the ALJ’s determination that, while Gold’s physician visits “arguably” established that he sustained a “harm,” any error by the ALJ in this regard was harmless as Gold had failed to establish that an accident occurred at work or that working conditions existed which could have caused his back condition, and that the denial of benefits was supported by the evidence and the law. The Board therefore affirmed the ALJ’s decision. On further appeal, Gold argued that the decisions of the BRB and ALJ contained errors of law regarding the proper application of relevant provisions of the LHWCA and implementing regulations. Gold argued, in effect, that his mere allegation of injury invoked the Section 20 presumption afforded to him as an employee under the Act. The appellate court rejected Gold’s argument, noting that mere allegation of injury is not sufficient to fulfill a claimant’s burden of persuasion. The appellate court observed that the ALJ found that Gold had not established the first element of his prima facie case and, in the alternative, that he also failed to establish the second prong. Thus, Gold was not entitled to either the Section 20 presumption or compensation under the LHWCA. The court affirmed the decision of the BRB denying Gold’s claim for compensation. (5th Cir, April 29, 2011, UNPUBLISHED) No. 10-60686
9TH CIRCUS MESSES WITH SUITABLE ALTERNATIVE EMPLOYMENT
FRED WAHL MARINE CONST. V. DIRECTOR, OWCP, ET AL. [MCCULLOUGH]
Circuit Court Opinion
BRB Decision
ALJ Decision
William McCullough allegedly injured his back during the course of his employment for Fred Wahl Marine Construction (FWMC). McCullough eventually underwent surgery on his lower back and his treating physician released him to light to light-moderate duty, but McCullough never returned to work. Following a formal hearing, the ALJ addressed nine positions identified in FWMC labor market survey, holding that eight of the jobs are not suitable for McCullough given his physical limitations due to the work injury; but finding that McCullough was capable of working at a Dairy Queen as a server/food preparer. Nevertheless, the ALJ went on to hold that FWMC had failed to establish suitable alternate employment as it did not demonstrate the existence of a range of jobs that McCullough could perform in and around the geographical area of his residence. The ALJ also found that McCullough did not diligently seek suitable work based on his having applied for only one job, his lack of cooperation with vocational rehabilitation, and his not taking any steps to have his driving privileges reinstated, which would allow claimant to seek work outside of his area of residence. Nonetheless, the ALJ concluded that McCullough was totally disabled as the single job identified at Dairy Queen was not legally sufficient to establish the availability of suitable alternate employment. On appeal, FWMC challenged the ALJ’s finding that it failed to establish the availability of suitable alternate employment. McCullough cross appealed the ALJ’s finding that the Dairy Queen job constituted suitable alternative employment. The BRB held that the evidence cited by the ALJ constitutes substantial evidence supporting his finding that the Dairy Queen job was suitable for and available to McCullough, rejecting claimant’s contention of error. However, the BRB rejected FWMC’s contention that the relevant geographic community should be extended beyond McCullough’s home town to a 25-mile radius. Relying on the ALJ’s finding that McCullough’s driving privileges were suspended prior to his work injury, and had not been reinstated based upon his failure to pay fines, the Board affirmed the ALJ’s finding that FWMC did not establish the availability of suitable alternate employment, as it was rational, supported by substantial evidence and in accordance with law. On further appeal, the 9th Circus affirmed the ALJ’s finding that McCullough’s suspended driver's license, the lack of public transportation in the area, and the excessive cost of having his wife drive him to and from work, properly limited the labor market to those jobs within walking distance of McCullough’s residence. The appellate court further concluded that the BRB erred when it held there was substantial evidence in the record as a whole to support the ALJ's finding that the Dairy Queen job was suitable alternative employment, and held instead that McCullough's physical limitations did not support such a finding. As the record supported a finding that the Dairy Queen job was not suitable alternative employment, the appellate court declined to address the issue of whether the finding of a single position satisfied the employer’s burden. The board's ultimate determination of permanent total disability was affirmed. (9th Cir, April 8,, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 7328
Updater Note: This decision flies in the face of everything I ever learned about proving suitable alternative employment. Then again, we are all too familiar with the fact that sometimes the law reads differently on the left coast. What is really a shame here is the fact that the employer located numerous jobs in its labor market survey, many of which were rejected because of the claimant’s own willful misconduct. The fact that a claimant loses his driving privileges, because of failure to comply with the law and pay his fines, should not work to put a larger burden on the employer to limit an alternative job search to an area within walking distance of the claimant’s residence.
LONGSHOREMAN IS UNSUCCESSFUL TRYING TO DIP INTO THE SECOND POCKET
MUSA V. LITTON-AVONDALE INDUSTRIES, INC., ET AL.
Appellate Court Opinion
Abdul Musa was hired by International Marine, Inc., a subcontractor, to work as a quality control inspector at Northrop Grumman, Inc. (f/k/a/ Avondale Industries, Inc.). Musa allegedly sustained injuries to his left shoulder, middle back, left hip, and left leg while conducting inspections onboard a vessel at Northrop Grumman’s facility when his foot slipped on a ladder while entering a tank. Musa filed a workers’ compensation claim pursuant to the LHWCA for injuries sustained while in the course and scope of his employment with International Marine. After that claim was settled for $95,000, Musa brought the present suit against Northrop Grumman seeking to recover in tort, arguing that Northrop Grumman's negligence was a proximate cause of his injuries. Northrop Grumman filed a motion for summary judgment, arguing that because Musa was its borrowed employee, it was immune from tort liability. The trial court granted the motion for summary judgment and dismissed the suit. Musa appealed and challenged the correctness of the summary judgment, arguing that because genuine issues of material fact existed regarding his status as a borrowed employee, the trial court erred by granting the motion for summary judgment because discovery was incomplete. After thoroughly reviewing the nine Ruiz factors, the appellate court found that the Ruiz factors, as applied to the facts in Musa’s case, overwhelmingly showed that Musa was Northrop Grumman's borrowed employee. Musa worked exclusively at Northrop Grumman for seven months. Northrop Grumman exercised control over Musa in that they supervised him, provided him with his daily assignments, and had the authority to terminate his services. Northrop Grumman kept a log of Musa's work hours and provided him with the tools necessary to perform his job. The court found no genuine issues of material fact existed regarding Musa’s status as a borrowed employee and that the trial court did not err in granting the motion for summary judgment. The appellate court also rejected Musa’s argument that the trial court abused its discretion when it ruled on the motion for summary judgment before discovery was completed. The grant of summary judgment in favor of Northrop Grumman was affirmed. (La. App. 5th Cir, March 29, 2011) 2011 La. App. LEXIS 384
WE’LL PAY TEMPORARILY, UNTIL THE LHWCA KICKS IN
OLSEN V. THE WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES
Appellate Court Opinion
Robert E. Olsen worked as a pipefitter in Washington State from 1955 to 1990. This employment allegedly exposed Olsen to asbestos. Olsen's asbestos exposure allegedly occurred while working for the Navy, other maritime employers, and non-maritime employers. Although Olsen's asbestos exposure occurred while employed with employers covered under the Washington Industrial Insurance Act (IIA) and the LHWCA, his last injurious exposure occurred while employed with an IIA-covered employer. Olsen passed away and his widow filed a claim under the LHWCA and IIA for surviving spouse benefits. The Washington Department of Labor and Industries issued an order granting the widow temporary reimbursable death benefits, holding that temporary benefits would be paid to the widow from the Asbestos Fund until the federal insurer initiated payments or benefits were otherwise properly terminated under the title. The widow appealed the Department’s ruling, arguing the Department lacked subject matter jurisdiction over matters concerning the decedent’s asbestos exposure while employed with maritime employers. The Department's decision was affirmed by a board, and the trial court summarily affirmed that decision. On further appeal, the issue presented was whether the trial court erred in rejecting the widow’s claim she should receive permanent IIA benefits under the last injurious exposure rule allocating liability between successive employers in occupational-disease cases. The widow contended that since her husband's last employer was covered under the IIA rather than the LHWCA, the Department erred in limiting her award to temporary benefits. The court affirmed on appeal, finding that Wash. Rev. Code §51.12.102 directed the Department to decide in part whether a claim was subject to a federal statute, and because it has been recognized that federal and state jurisdiction coexist, the Department had subject matter jurisdiction over the widow's claim. The appellate court explained that neither the last injurious exposure rule nor Fankhauser overcomes the exclusive LHWCA remedy provision. The court affirmed the trial court’s “well-reasoned decision” concluding that the widow was properly awarded temporary benefits until federal benefits were approved. Case law made clear if a worker had a claim under federal maritime law, he might nonetheless be covered under Wash. Rev. Code §51.12.102(1), but benefits were temporary. The court held that the board properly affirmed the Department's decision. Because the board's decision was not reversed or modified, the court denied the widow's request for fees under Wash. Rev. Code §51.52.130 and Wash. R. App. P. 18.1. The court affirmed and denied the widow's request for attorney fees. (Wa. App 3rd, April 26, 2011) 2011 Wash. App. LEXIS 988
CAREFULLY SCRUTINIZE THOSE ATTORNEY FEE PETITIONS
VEGA V. TRADESMEN INTERNATIONAL, INC., ET AL.
Ricardo Vega was awarded disability compensation under the LHWCA and then filed a petition under §18(a) in district court seeking entry of judgment in order to enforce the order. After the petition was filed, Vega filed a motion notifying the court that his employer’s insurance carrier had complied with the order, but advised of his intent to proceed seeking attorney's fees. Vega requested an attorney fee award of $2,373.05. The employer and its carrier filed an opposition, agreeing that all issues besides attorney's fees had been settled. They did not dispute Vega’s entitlement to fees, but argued that the amount sought was excessive, both in the number of hours claimed and the hourly rate of Vega’s attorney. The court determined that the $350.00 claimed by Vega’s attorney was a reasonable hourly rate for services in preparing and filing the petition to enforce the Department of Labor's order and award. However, the court found that the description given for a 5-hour block of time, listed as simply "Work on Petition," was unreasonable in the absence of further explanation, and the court reduced it to 3.5 hours. The court noted that most experienced attorneys would be familiar with the relevant case law and might well have saved copies of similar petitions to use as starting points for new petitions. The court also denied a 1.25 hour period claimed for personal filing of the petition, noting that this was simply a ministerial task that can be delegated to support staff or messenger services, and is not appropriately billed as attorney work time. The court awarded a total fee award of $1400, plus uncontested costs of $10.55. (USDC SDCA, March 29, 2011) 2011 U.S. Dist. LEXIS 33385
YOU NEED INVOLVEMENT OF A VESSEL TO SUPPORT A §905(B) CAUSE OF ACTION
BILLIOT V. BOH BROS. CONSTRUCTION CO., LLC
Tilden Billiot was a longshoreman working for Boh Bros. Construction Co., LLC, on a marine construction project, when he died in the territorial waters of the United States. Billiot's cherry picker crane tipped over on its side and, after about six minutes of the cab dangling over the water, Billiot’s unconscious body slipped through the broken glass and into the water where he drowned. Billiot’s widow, Glenda Billiot, contended that she had a cause of action under §905(b) of the LHWCA. Boh Bros. Moved for summary judgment contending that there were no genuine issues of material fact regarding the widow’s claim for "vessel negligence." The widow argued that the vessel was a cause of Billiot's drowning, considering that Boh Bros. was required to have a lifesaving vessel immediately available, including the ability to secure the worker onboard for safe transportation and immediate first aid. In this regard, Plaintiff notes that the coroner determined that the decedent's immediate cause of death was prolonged submersion. Assuming that Billiot was a "maritime worker," Boh Bros. contended that the LHWCA contains exclusivity provisions which bar the wrongful death claim asserted in this particular case and maintained that only longshoremen injured while working on vessels may sue their employer as a vessel operator. The court initially noted that the issue before it was not whether the widow made proper allegations of negligence against Boh Bros., but whether any such alleged negligence, if proved, constitutes "vessel negligence" within the meaning of §905(b). The crane's instability and tipping over on the bridge did not constitute proper allegations and evidence of "vessel negligence." Nevertheless, the widow argued that she intended to demonstrate at trial that Billiot's death was in fact caused by hazards under the control of Boh Bros.' rescue crew boat. However, the court noted that the undisputed fact remained that the accident complained of occurred on the bridge deck and not on a Boh Bros’ vessel. The court concluded that the widow had failed to come forward with even a scintilla of competent evidence tending to suggest that Billiot's death was caused by any act or omission on the part of Boh Bros. in its capacity as owner of the rescue vessel. Instead, the evidence demonstrated that Mr. Billiot's fatal injuries — traumatic blow in the crane cab, fall into Lake Pontchartrain and drowning — were all sustained before the rescue boat arrived. Billiot was not injured during stevedoring operations conducted by, on or from a "vessel." Boh Bros.' rescue crew boat played no part in causing the crane toppling incident on the bridge deck, Billiot's fall into the water, or drowning. Accordingly and because of the complete absence of evidence on crucial elements of the widow’s 905(b) claim of "vessel negligence" being causally related to Billiot's accident, Boh Bros’ motion for summary judgment was granted. (USDC EDLA, April 4, 2011) 2011 U.S. Dist. LEXIS 36907
COURT HOLDS EMPLOYEE TO BE A BORROWED SERVANT DESPITE MSA
KINDRED V. BLAKE INTERNATIONAL HOLDINGS, L.L.C., ET AL.
Ronald Kindred, a roustabout on W&T Offshore, Inc.'s oil and gas production platform, was allegedly injured when he stepped onto an unsecured piece of grating on the production deck and fell. Kindred was a payroll employee of Dynamic Production Services, Inc, assigned as a roustabout on W&T's platform. Dynamic and W&T had a "Master Service Contract" under which Dynamic hired personnel that it supplied to W&T. The contract provided that Dynamic is “an independent contractor,” and that Dynamic's employees and subcontractors are not “servants, agents or employees of W&T.” After Kindred filed suit for his alleged injuries, W&T filed a motion for summary judgment arguing that it was entitled a judgment that Kindred is W&T's borrowed servant, and therefore Kindred's exclusive remedy against W&T is workers' compensation benefits under the LHWCA. Kindred argued that summary judgment was inappropriate because there were disputed issues of material fact concerning his borrowed employee status. Kindred claimed that he remained an employee of Dynamic at all times. After weighing all the Ruiz factors to evaluate the borrowed servant test, the court held that the undisputed facts of the case demonstrated, as a matter of law, that Kindred was W&T's borrowed employee. Thus, the court found that workers' compensation under the LHWCA was Kindred's sole remedy against W&T. Kindred's tort claims against W&T were dismissed with prejudice. (USDC EDLA, April 15, 2011) 2011 U.S. Dist. LEXIS 42218
BRB TELLS JOSH WHAT IT THINKS HIS WORK IS WORTH
BOROSKI V. DYNACORP INTERNATIONAL, ET AL.
BRB Decision
Bernard Boroski was allegedly exposed to chemical vapors while working in Dynacorp International’s blade shop in Bosnia, which, he claimed, caused significant vision problems and resulted in his inability to perform any work. Boroski sought benefits for permanent total disability; Dynacorp contested the cause of Boroski’s eye condition and filed an application for Section 8(f) relief. In his initial decision, the ALJ found that claimant established that his eye condition was work-related and ordered Dynacorp to pay Boroski permanent total disability benefits. The ALJ also denied Dynacorp’s request for Section 8(f) relief on the ground that the evidence did not establish that Boroski’s pre-existing eye disorder was manifest to Dynacorp. An appeal followed, challenging the ALJ’s findings that Boroski’s genetic eye disorder was aggravated by his working conditions and the denial of Section 8(f) relief. The Board affirmed the ALJ’s award of benefits, vacated his denial of Section 8(f) relief, and remanded the case for further consideration of that issue. Following the affirmance of the award of benefits, Boroski’s co-counsel, Denty Cheatham and Josh Gillelan, filed fee petitions for work performed before the ALJ. Cheatham sought an attorney’s fee totaling $437,220.37, representing 1,141 hours of work at an hourly rate of $350, 44 hours of travel at an hourly rate of $175,1 and $30,170.37 in costs. Gillelan sought an attorney’s fee totaling $6,935, representing 14.6 hours at an hourly rate of $475. Dynacorp filed objections to each of the fee petitions, and in a Supplemental Decision, the ALJ significantly reduced the hours requested by Cheatham and completely denied the hours requested by Gillelan. On appeal, Cheatham challenged the ALJ’s reduction in his requested fee, and Gillelan challenges denial of his fee request in its entirety. The BRB rejected Cheatham’s contention that the ALJ erred in disallowing time as “excessive,” but did remand for further consideration of Cheatham’s travel expenses and a fee for the time spent preparing the two fee applications. The BRB rejected the contention that the ALJ erred in denying any attorney’s fees for Gillelan’s services, holding that the ALJ rationally found that, since Boroski would not obtain any additional benefits as a result of the remand proceedings, Gillelan’s services were unnecessary and that an attorney’s fee award for work by Boroski’s appellate counsel was not warranted. The Board also held that the ALJ correctly found that since the objections raised by Dynacorp to Cheatham’s fee petition were akin to those “routinely made in Longshore cases,” it was unnecessary for Cheatham to consult with another attorney to assist him in responding to those objections. The Board affirmed the ALJ’s holding that Gillelan’s services were not compensable. (BRB No. 10-0438, March 15, 2011)
Updater Note: As my tortured readers are aware, I rarely review BRB cases, and typically avoid Defense Base Act cases as well. However, some decisions are just too good to pass by. Don’t you just love the name of the name of the claimant’s attorney in this case? I’m assuming the “H” is silent. Thanks to Tom Scherting of SSA for sharing this decision with me.
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest #230
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #230. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005 (time for a new one, Yelena!). However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
And on the Admiralty front . . .
5TH CIRCUIT MAKES EXCEPTION TO ECONOMIC LOSS RULE OF ROBINS DRY DOCK
CATALYST OLD RIVER HYDROELECTRIC LTD. V. INGRAM BARGE CO., ET AL
Circuit Court Opinion
An American River Transportation Co. (ARTCO) barge was involved in a collision with another vessel on the Mississippi River. The barge broke free of its tow and drifted into the inlet channel of Catalyst Old River Hydroelectric Limited Partnership’s hydroelectric facility, where it grounded. The grounding reduced the flow of water, with the result that the facility produced (and sold) less electricity. In order to get the grounded barge out of the inlet channel, Catalyst was required to further reduce the flow of water so that a crane barge and towboat could enter the channel and raise/retrieve the barge. Catalyst claimed damages for the value of the electricity that it was prevented from producing and selling. ARTCO contended that, because Catalyst was suing for pure economic losses and suffered no physical damage, it was not entitled to recover. The district court agreed, granting ARTCO’s motion for summary judgment. Catalyst appealed the judgment of the district court, dismissing on summary judgment its claims for damage arising out of this maritime tort. The district court had found there could be no recovery of economic loss absent physical injury to a proprietary interest. On appeal Catalyst argued that the district court erred by finding that the entry of ARTCO’s barge into the intake channel of Catalyst’s hydroelectric facility did not satisfy the damage requirement, so as to allow Catalyst to recover its economic losses. The appellate court initially noted that physical harm to or invasion of a proprietary interest was generally an appropriate condition for recovery of negligently caused economic loss. In this case, the appellate court held that the presence of the barge in Catalyst’s intake channel caused damage to its hydroelectric facility by obstructing the supply of water, which was critical to its operations. Also, the physical recovery effort to secure and remove the barge from the intake channel required a reduction in the flow of water necessary for the turbines to operate properly and generate the power they were designed to generate. Simply because the physical damage to or invasion of Catalyst’s facility had been repaired by removal of the barge without cost to Catalyst did not mean that no physical damage occurred by the intrusion of ARTCO’s barge into Catalyst’s facility. The judgment of the district court was reversed and remanded. (5th Cir, April 15, 2011) 2011 U.S. App. LEXIS 7879
5TH CIRCUIT ENFORCES NO ORAL MODIFICATION” CLAUSE
REGIONS EQUIPMENT FINANCE CORPORATION V. AT 2400, ET AL.
Circuit Court Opinion
Regions Equipment Finance Corporation entered into a loan agreement with a ship owner, Accumarine Transportation, L.P.. The loan agreement included a clause stating that the agreement may not be contradicted or varied by subsequent oral agreements or discussions of the parties. Accumarine defaulted on the loan payments and Regions brought suit against Accumarine, in personam, and against the vessels encumbered by the Preferred Mortgage, in rem, for default on loan agreements to cover four promissory notes. Accumarine did not dispute Regions allegations of breach of contract but asserted defenses of promissory and equitable estoppel. The district court granted Regions motion for summary judgment, determining that Accumarine’s defenses were not assertable under Alabama law and that there remained no genuine issue of material fact that Accumarine has breached its contract with Regions. Accumarine appealed the district court’s ruling contending that Regions was estopped from enforcing the Preferred Mortgage and collecting the notes under principles of promissory and equitable estoppel, based on the alleged oral promises made by Regions to Accumarine’s guarantors. In an apparent case of first impression, the US Court of Appeals for the Fifth Circuit ruled that a “no oral modification” clause in a loan agreement that included the granting of several preferred ship mortgages was enforceable under general maritime law. Accumarine contended that Regions had verbally agreed that it would, among other things, notify Accumarine before taking any action on the loan. The court held that, where the parties are sophisticated companies, the agreement is the product of substantial negotiations, and there is no fear that the defendant missed the fine print, it would enforce the “no oral modification” clause in a marine contract. In its affirmation, the appellate court held that Accumarine may not assert its defenses pursuant to the specific provisions of the contract, under either maritime law or Alabama law. (5th Cir., April 27, 2011) 2011 U.S. App. LEXIS 8574
EMPLOYER NOT ALLOWED TO CIRCUMVENT OVERTIME PAY RATES
SEYMORE ET AL. V. METSON MARINE, INC., ET AL.
Appellate Court Opinion
Andrew Seymore and Kenneth Blonden had worked consecutive 14-day "hitches" on Metson Marine, Inc.’s ships providing emergency cleanup of environmentally hazardous discharges off the California coast. Crew members worked 14 days on duty and then 14 days off duty. Each two-week period started at noon on Tuesday and ended on Tuesday two weeks later. The trial court had granted summary judgment in favor of Metson, concluding that the uncontroverted facts established that Metson calculated crew members wages correctly. Seymore and Blonden appealed the trial court’s ruling, challenging the court’s conclusion, contending that they were entitled to an additional day of premium pay per hitch for working seven consecutive days in a workweek, and additional compensation for the 12 hours they were on call during their 14-day hitches. The appellate court held that it was not permissible for Metson to artificially designate the workweek in such a way as to circumvent the requirement of Lab. Code, §§ 500 and 510, to pay overtime rates for the seventh consecutive day worked in a workweek. The restrictions placed on the employees during their on-call hours, including the requirement that they sleep aboard the ships and remain within no more than 45 minutes of the ship at all times, subjected the employees to the employer's control for the full 14-day hitch, so that the on-call hours constituted time worked. However, the court conceded that the employees were not entitled to compensation for 24 hours a day. California law authorized employers to enter into an agreement with their 24-hour employees to exclude from compensation eight hours of sleep time in each 24-hour period, and the employees and the employer had such an understanding. Accordingly, the employees were entitled to compensation for an additional four, but not 12, hours in each 24-hour period. The court reversed the judgment and remanded the action for further proceedings. (1st Ca. App. 3rd, Div, April 14, 2011) 2011 Cal. App. LEXIS 442
WATERFRONT FACILITY NOT LIABLE FOR CONDITION OF FEDERAL ANCHORAGE
IN RE: PETITION OF FRESCATI SHIPPING COMPANY, LTD.
District Court Opinion
The US District Court for the Eastern District of Pennsylvania ruled that the waterfront oil refinery which a tanker was approaching when it struck a previously unknown submerged object was not liable for the cleanup costs and damages associated with the ensuing damage to the tanker or damages incurred by third parties as a result of the oil spill. The tanker, ATHOS I, was delivering heavy crude oil to a refinery in Paulsboro, New Jersey on the Delaware River. When the tanker was approximately 900 feet from the refinery dock, in waters of Federal Anchorage No. 9, it struck and was holed by a submerged object, later found to be an abandoned anchor. As a result of the incident, approximately 200,000 barrels of the crude oil was spilled into the river, causing much damage and leading to a very expensive cleanup. The shipowner filed a petition for exoneration from or limitation of liability. The refinery filed a claim for damages and the shipowner filed a counterclaim, asserting that the refinery was liable for the incident based on, among other things, negligence for failing to survey the approaches to the dock. The court found in favor of the refinery, ruling that, as wharfinger, the refinery was only obligated to survey the waters at the berth and at the entrance and exit providing immediate access to the berth. It was not obligated to survey the waters of the federal anchorage area, over which it had no control. (USDC EDPA, April 12, 2011) 2011 U.S. Dist. LEXIS 40020
I ONLY SMOKED MARIJUANA AFTER THE ACCIDENT TO RELIEVE MY PAIN
LEDET V. SMITH MARINE TOWING CORPORATION
Chad Ledet brought suit against his employer, Smith Marine Towing Corp., as a result of an alleged back injury he sustained when he was struck by a towline. The sea-going tug Ledet was assigned to, was towing an unloaded offshore deck barge equipped with its own towing equipment, or "chain bridle," which consisted of two chains attached to its front corners connected by a "fishplate" and a pendant wire that extended from the fishplate to the tug. The tug captain conducted a joint safety analysis (JSA), during which the crew discussed the method for releasing the barge and its towing equipment. Ledet claimed that he proposed an allegedly safer method for releasing the towing gear at the JSA. The captain allegedly rejected Ledet's alternate proposal because his method would take less time. At trial, the captain testified that Ledet initially tied the line from the starboard side and was struck as he walked away. Ledet maintained that he followed the captain’s orders, but when he reached the starboard grating, the vessel dipped in the trough of a wave, and the pendant wire came untied and struck him, throwing him against the vessel's bulwarks, and knocking him unconscious. Ledet claimed to have sustained a compression fracture to his spine, although Smith Marine offered evidence that Ledet’s back injury may have been sustained in an earlier car accident. At the bench trial, the court did not find the tug captain to be a credible witness and credited Ledet’s version of the events over the tug captain’s. By contrast, the court found that Ledet provided a coherent narrative of the events surrounding his accident, and his demeanor was more suggestive of veracity. As a result of its credibility determination, the court concluded that the tug captain was negligent in a number of ways and unreasonably put the crew in harm's way. The court also rejected Smith Marine’s assertion that Ledet was contributorily negligent in approaching the scene from the starboard side of the vessel. The court further rejected Smith Marine's suggestion that Ledet was impaired by drug use at the time of the accident. Instead, the court credited Ledet's testimony that he smoked marijuana only after the accident in order to alleviate his pain. The court found that the tug was not unseaworthy at the time of Ledet's accident, because Ledet failed to present any evidence that the vessel, its gear, or appurtenances were in any way defective or contributed to his injury. In summary, the court held that Ledet had sustained damages, totaling $1,894,728.39, due to the negligence of Smith Marine. Because Ledet was not found contributorily negligent, Smith Marine was ordered to bear the entire cost of the judgment. (USDC EDLA, April 4, 2011) 2011 U.S. Dist. LEXIS 39842
Updater Note: Judge Vance probably erred in this case by awarding $1,300,000.00 for pain and suffering. It appears as though this judgment would violate the loosely defined “maximum recovery rule.” This judge-made rule essentially becomes operative when the award exceeds 133% of the highest previous recovery in the state for a factually similar case. See Lejeune v. Transocean Offshore Deepwater Drilling, Inc., 247 Fed. Appx. 572 . I know an appeal is being considered.
SEAMEN AREN’T SUPPOSED TO WORK IN AWKWARD OR CONFINED QUARTERS
MARTINEZ V. OFFSHORE SPECIALTY FABRICATORS, INC.
Ramiro Martinez was allegedly injured while he was employed by Offshore Specialty Fabricators, Inc. as a mechanic aboard an offshore derrick barge owned and operated by Offshore. Martinez claimed that he was sent to repair a winch on board a tug (also owned by Offshore) and used several sledgehammers, including a homemade sledgehammer consisting of a sledgehammer head welded to a metal pipe, to hammer a rusted and frozen pin into the winch. Because of the cramped conditions on the vessel, Martinez alleged injuries to his spine and other portions of his body. Martinez eventually underwent a three-level cervical fusion, which he claimed was necessitated by the injuries he sustained. Offshore admitted that Martinez sustained an injury while in the course of duty and has therefore paid him maintenance and cure. But Offshore denied that the injury was a result of an accident caused by its negligence or any unseaworthy condition on board the vessel. Following a bench trial, the court observed that the problem with the winch was due to heavy rust and corrosion. The accumulation of rust was obviously not a sudden occurrence but one that had been allowed to develop as a result of poor maintenance or oversight by the vessel's crew before the vessel was ever dispatched to the offshore job site. The court also noted that the substantial weight of the testimony established that the winch was located in a position on the stern of the vessel that provided a cramped, limited space for Martinez to swing the sledgehammer. There was also some evidence to suggest that one of the sledgehammers was makeshift, and caused vibrations and increased the stress on Martinez’s body. The court cited Crador v. La. Dep't of Highways, 625 F.2d 1227, to support its holding that requiring a Jones Act seaman to work in "awkward and confined quarters without adequate help and without suitable tools and equipment" can be negligence under the Jones Act. The court concluded that the weight of the evidence established that Offshore was negligent in requiring the Martinez to swing a sledgehammer in cramped conditions that required him to crouch and bend forward in a manner that increased the risk of injury to his neck and upper torso. The weight of the evidence established that a reasonable alternative tool, a hydraulic jack, was available. The court also found the vessel was unseaworthy because the winch pin was rusted and corroded, and obviously must have been in that condition for some time. Additionally, the court found that the fact that the winch had been allowed to become so rusted and corroded that it required repair in cramped and confined conditions played a substantial part in causing Martinez’s injury. The court did hold Martinez to be 20% contributorily negligent, in light of his extensive experience working aboard boats and as a mechanic, holding Martinez knew or should have known that using a sledgehammer in cramped conditions such as those aboard the vessel could increase the risk of injury. Additionally, the court pointed to Offshore’s “work-stop" program through which Martinez could have immediately stopped work on the frozen winch pin until a safer method could be determined. The court awarded Martinez damages in the amount of $232,164.62, after deducting 20% of the total damages adjudged in the case. (USDC EDLA, April 20, 2011) 2011 U.S. Dist. LEXIS 43641
COURT DENIES SEAMAN/FELON’S REQUEST TO CHOOSE HIS OWN VENUE
BRITT V. JAN TRAN INC.
Torey Britt was allegedly injured while working for JanTran, Inc. Britt was working at Jan Tran's facility in Mississippi as a crew member of a vessel owned by JanTran. Britt allegedly hurt his back while working on the vessel, which he claimed caused his lower back to herniate and resulted in a discectomy. Britt filed his complaint, pursuant to the Jones Act, in the Eastern District of Louisiana, alleging JanTran breached its duty of reasonable care by failing to provide a safe work environment and maximum cure benefits. Britt is attempting to recover for medical expenses, pain and suffering, lost wages, disability, and other damages from Jan Tran. Prior to his scheduled deposition in the case, Britt was convicted of a felony in Mississippi and sentenced to five years incarceration. Due to his incarceration, Britt could not appear in New Orleans for his deposition or trial. JanTran moved to transfer the case to the Northern District of Mississippi where Britt will be incarcerated. Britt opposed the motion, invoking plaintiff's privilege to choose venue, pursuant to the Jones Act. Instead, Britt requested the court dismiss the matter without prejudice, thereby allowing him the opportunity to re-file in another forum of his choosing. The court initially noted that venue may be properly transferred because the incident occurred in the Northern District of Mississippi. Additionally, witnesses, physicians and parties to the suit are located in Mississippi. After balancing all the public and private factors, to determine whether transfer was warranted the court concluded that all factors weighed in favor of transfer. Jan Tran's Motion to Transfer the case to the Northern District of Mississippi was granted. (USDC EDLA, March 23, 2011) 2011 U.S. Dist. LEXIS 36707
SEAMAN GETS A DEFAULT JUDGMENT ON HIS JONES ACT CLAIM
HENDERSON V. ATLANTIC PELAGIC SEAFOOD, LLC
Mark Henderson was working his second two-month shift aboard Atlantic Pelagic Seafood, LLC’s fishing vessel, when he was allegedly struck on the back of the head by a heavy steel hatch door as he attempted to descend a ladder into a ship's hold during a storm. Henderson sustained multiple facial fractures and eventually underwent surgery to reposition displaced fractured facial bones. Following his accident, Henderson continued to complain of cognitive difficulties and depression, but was able to return to work in the fishing industry and later enrolled as a student in a certified nursing assistant program. Henderson eventually brought suit against Atlantic, claiming Jones Act negligence, unseaworthiness, and a claim for any maintenance and cure. A little over a year after Henderson’s injury, the members of Atlantic sold 100 percent of their interests to Marine Recycling Corporation. Nevertheless, service was effectuated upon Atlantic through its Delaware agent. Following the grant of a motion by Henderson to extend time for Atlantic to answer the complaint, its answer became due, but no answer was timely filed. Henderson moved for the entry of default against Atlantic, and that motion was granted the following day [see December 2010 Longshore Update]. Atlantic moved to set aside the default that had been entered against it and to file a late answer. Atlantic’s motion was denied and Henderson requested a hearing to determine damages, which the court granted. Following the close of the evidence, the court heard oral argument from both sides and permitted the filing of simultaneous post-hearing briefs on the question of whether Henderson was entitled to damages for lost earning capacity. With the benefit of the testimony, exhibits, oral argument at hearing, and post-hearing memoranda, the court awarded Henderson damages in the total amount of $415,570.19, the bulk of which was compensation for Henderson's pain, suffering, and mental anguish. (USDC ME, March 28, 2011) 2011 U.S. Dist. LEXIS 33727
POOR EFFORT TO PROVE UNSEAWORTHINESS OR JONES ACT CLAIMS (CONT)
WHATLEY V. WATERMAN STEAMSHIP CORP.
Mary Whatley was employed by Waterman Steamship Corp. As a cook aboard an offshore vessel, when she was allegedly injured as the result of a fall she sustained when returning to the launch at the conclusion of shore leave. She sued Waterman under the Jones Act and under general maritime law for unseaworthiness. The court granted Waterman’s motion for summary judgment on both claims [see January 2011 Longshore Update]. Following the court’s initial ruling, Whatley moved for reconsideration, solely with respect to her Jones Act negligence claim, seeking reconsideration of the court's rejection of her "alternative" argument that, when an employee's injury is caused by the fault of others "performing, under contract, operational activities of the employer," such others are agents of the employer for whose negligent conduct the employer is responsible. Whatley argued that the Port of Saipan was Waterman’s agent, while at the same time admitting that she had no evidence that Waterman had a contract or other relationship with the Port of Saipan. Despite this absence of evidence of an essential element of her claim, Whatley suggested she was entitled to go to trial to determine facts not known from discovery, which the court denied. In her motion for reconsideration, Whatley asserted that she now has evidence of an explicit agreement or license or contract between the United States Government, which controls the Port of Saipan, and Waterman. The court found that the threshold problem with Whatley’s latest position was that her evidence was presented too late to be considered. Because judgment had been entered, Whatley was obligated to brings her motion under FRCP 59(e), which provides that the only grounds for granting a motion are newly-discovered evidence or manifest errors of law or fact. The court found that Whatley had failed to identify anything in the court's original order that was erroneous based on the evidence and argument presented on motion for summary judgment. Further, the evidence on which Whatley now relies, was information that was plainly available to Whatley in opposing Waterman’s motion for summary judgment. When supplementing a Rule 59(e) motion with additional evidence, the movant must show either that the evidence is newly discovered or, if the evidence was available at the time of the decision being challenged, that counsel made a diligent yet unsuccessful effort to discover the evidence. The court found no showing of diligence on Whatley’s part which would allow her to rely on the evidence. Whatley’s motion for reconsideration, alteration or amendment of summary judgment was denied. (USDC SDAL, April 7, 2011) 2011 U.S. Dist. LEXIS 38216
COURT ORDERS ENFORCEMENT OF INSURANCE ARBITRATION PROVISION
TODD V. STEAMSHIP MUTUAL UNDERWRITING ASSOCIATION, LTD.
Anthony Todd was allegedly injured while serving as a relief executive chef aboard a vessel which was owned by Delta Queen Steamboat Company. Todd sued Delta Queen in Louisiana state court, eventually winning a final judgment [see September 2008 Longshore Update], was affirmed on appeal [see July 2009 Longshore Update], and which Delta Queen failed to satisfy. Todd subsequently filed suit against Delta Queen's liability insurer, Steamship Mutual Underwriting Association Limited’s, as authorized by Louisiana's Direct Action Statute. Because Steamship's policy with Delta Queen included an arbitration provision, Steamship removed Todd's suit to federal court and sought to stay the proceedings and have arbitration compelled. The court denied Steamship's motion to compel, but the Fifth Circuit, which reversed the District court’s decision [see April 2010 Longshore Update] because it found that jurisprudence relied on by the district court was overruled by the Supreme Court's decision in Arthur Anderson LLP v. Carlisle. On remand, the appellate court pointed to three significant matters it wanted addressed by the district court. First, the Fifth Circuit directed the court to look at a complete copy of Steamship's 1999/2000 Rules to determine if the agreement clearly addresses whether a non-signatory may be bound to arbitrate. Next, the court was directed to determine what law should apply to establish whether Todd must arbitrate. Finally, if Todd was bound to arbitrate, the court must determine if all of his causes of action are captured by the arbitration agreement. As a result of the Fifth Circuit's specific instructions, the court found that Louisiana state law controlled the questions of whether Todd, as a non-signatory, could be bound to the arbitration agreement between Delta Queen and Steamship, as well as whether Todd's claims fall within the scope of that arbitration agreement. The court also found that , because Todd was seeking to enforce the terms of the contract between Steamship and Delta Queen, he had embraced that contract such that, under both Louisiana and federal case law, he was estopped from repudiating the arbitration clause in that contract. The court concluded it must compel arbitration under the Convention because there is a) an agreement in writing to arbitrate the dispute; b) the agreement provides for arbitration in the territory of a Convention signatory; c) the agreement arises out of a commercial legal relationship; and d) a party to the agreement is not an American citizen. Having found that all of the Convention's requirements had been satisfied the court held that Todd was required to arbitrate all of his claims against Steamship. Under Louisiana state law, Todd was bound as a non-signatory to the arbitration agreement between Steamship and Delta Queen, which in turn was broad enough to cover all of Todd's claims. Steamship’s ' Motion to Compel Arbitration and Stay Proceedings was granted. (USDC EDLA, March 28, 2011) 2011 U.S. Dist. LEXIS 38638
LET’S KEEP ALL THESE DEEPWATER HORIZON CASES TOGETHER
MEINHART V. HALLIBURTON ENERGY SERVICES, INC., ET AL.
This case arises out of the explosion of the DEEPWATER HORIZON. Paul Meinhart , a motorman on the DEEPWATER HORIZON, sued BP Exploration & Production Inc., BP Products North America Inc., BP Corporation North America Inc., and BP PLLC. (collectively “BP”) and others under the Jones Act. Although he was a Transocean employee, Meinhart claimed he could recover against BP as a borrowed seaman. BP removed the case from Texas state court, asserting that the Jones Act claim was fraudulently pleaded and that the Outer Continental Shelf Lands Act provided a basis for removal under 28 U.S.C. § 1441(b). Meinhart moved to remand. BP moved for a stay, contending that the federal court should allow the Judicial Panel on Multidistrict Litigation (JPML) to determine whether to consolidate Meinhart’s case with other cases arising out of the DEEPWATER HORIZON's explosion in the Eastern District of Louisiana before ruling on any motions. Meinhart responded that staying before ruling on his motion to remand would delay his ability to proceed in state court and to obtain Jones Act compensation. BP responded that the MDL court is the appropriate forum to decide the remand issue. Following its review of the motions, the parties' filings, and the relevant law, the court stayed the case pending the JPML's decision whether to transfer the case to the Eastern District of Louisiana. BP's motion to stay the case was granted and the court stayed the case until the JPML determines whether to transfer the case to the Eastern District of Louisiana under §1407. (USDC SDTX, April 4, 2011) 2011 U.S. Dist. LEXIS 36430
SEVERABILITY PROVISION SAVES ARBITRATION AGREEMENT
WILLIAMS V. ROYAL CARIBBEAN CRUISES, LTD.
Clifford Williams alleged he sustained injuries while working as a seafarer aboard Royal Caribbean Cruises, Ltd.'s vessel. Williams filed a Jones Act suit and Royal Caribbean moved to compel arbitration pursuant to a Sign on Employment Agreement (SOEA), which contained an arbitration provision. The agreement contained a choice-of-law clause and a severability clause. Williams did not dispute the fact that the arbitration agreement he executed met all four Bautista jurisdictional prerequisites. He simply disputed the choice-of-law provision in the arbitration agreement, which specified that Norwegian law would apply. The choice-of-forum provision in the SOEA specified that arbitration shall take place in St. Vincent or the Bahamas. The court found that the two clauses operated in tandem to impermissibly limit Williams’ U.S. statutory remedies, holding it to be void as a matter of public policy pursuant to Thomas. Royal Caribbean stipulated to the application of U.S. law in arbitration. Based upon the severance provision and a strong policy favoring arbitration, the court stayed the case pending arbitration. Royal Caribbean’s Motion to Compel Arbitration was granted in part, with the choice-of-law provision being stricken as null and void. The court ordered the parties to submit to binding arbitration in accordance with the arbitration and the arbitrator to apply U.S. law. (USDC SDFL, April 18, 2011) 2011 U.S. Dist. LEXIS 44101
COURT SEVERS CHOICE OF LAW PROVISION AND ENFORCES ARBITRATION
SALINAS V. CARNIVAL CORPORATION
Marco Esteban Valdivia Salinas, a seaman from Nicaragua, filed a complaint in state court asserting claims for Jones Act negligence and unseaworthiness for injuries he allegedly sustained while working aboard two different Carnival Cruise Lines vessels. The first vessel flew a Bahamian flag and the second flew a Panamanian flag. Carnival removed the case to federal court pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Salinas had signed a Seafarer's Agreement with Carnival which governed the parties' employment relations and contained an arbitration provision. Because the arbitration clause at issue contained a choice-of-law provision that forecloses on the application of U.S. law, the court found it was void under Thomas. Carnival argued that the court should sever the choice-of-law provision in the agreement and compel arbitration of Salinas’s claims with the law to be determined by the arbitrator. The court noted that Salinas’s claims for unseaworthiness are based in common law, rather than United States statutory law. Thus, Salinas would have a claim to pursue through arbitration even if the arbitrator did not apply U.S. law. If the arbitrator did not apply U.S. law and if Salinas also failed to prevail on his unseaworthiness claim, it would still be possible for him to obtain later review in the event that Carnival attempted to argue res judicata when Salinas later re-raises his statutory claims. The court voided and severed the choice-of-law provision in the parties’ agreement and granted Carnival’s Motion to Dismiss and Compel Arbitration. The court also retained jurisdiction to enforce the arbitral award. (USDC SDF, March 28, 2011) 2011 U.S. Dist. LEXIS 37945
LACK OF SEVERABILITY PROVISION VOIDS ARBITRATION AGREEMENT
HARRISON V. NCL (BAHAMAS) LTD.
Erikson Harrison filed a Jones Act suit in state court, alleging he sustained injuries while working aboard NCL's ship. NCL removed the case to federal court, pursuant to 28 U.S.C. §1441(b), and asked the court to compel arbitration pursuant to the Employment Agreement Harrison signed, which incorporated the Collective Bargaining Agreement for Catering Personnel (CBA) and an arbitration provision. The arbitration clause provided that arbitration shall take place at the Seafarer's country of citizenship, unless arbitration is unavailable under the Convention in that country, in which case and only in that case, said arbitration shall take place in Nassau, Bahamas. Neither the CBA nor the Employment Agreement contain a severability provision. The court noted that the choice-of-law provision specified Bahamian law will apply. The choice-of-forum provision specified that arbitration shall take place in Jamaica, Harrison’s country of citizenship, or if arbitration is unavailable under the Convention in that country, then in Nassau, Bahamas. The court then found that the two provisions operated in tandem to impermissibly limit Harrison’s U.S. statutory remedies, making the choice-of-law clause void as a matter of public policy. Although NCL had agreed to stipulate to the application of U.S. law in arbitration, the court noted that there was no severability provision, and, therefore, it had no basis to sever the choice-of law provision from the remainder of the arbitration provision. The court concluded that the entire arbitration provision was unenforceable. NCL’s Motion to Dismiss and Compel Arbitration was denied and Harrison’s motion to remand to state court was granted. (USDC SDFL, April 27, 2011) 2011 U.S. Dist. LEXIS 45320
Quotes of the Month . . . "Saints may always tell the truth, but for mortals living means lying." -- Chief Judge Alex Kozinski in a recent decision by the 9th U.S. Circuit Court of Appeals that the Stolen Valor Act is an unconstitutional restraint on free speech and a threat to every citizen who fibs to embellish his or her image. The court struck down both the 2005 act of Congress and the fines and sentence meted out to a man convicted on criminal charges for falsely claiming to have been awarded the congressional Medal of Honor.
"The simple step of a courageous individual is not to take part in the lie. One word of truth outweighs the world."--Alexander Solzhenitsyn
"Destiny is not a matter of chance. It is not a thing to be waited for. It is a thing to be achieved." -- William Jennings Bryant
Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.
If the links above do not take you directly to the case, try cutting and pasting the link into the URL location on your browser. Links are not provided for District Court or other cases where a charge is imposed by the court for access.
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
NOTE: This is an email list for anyone interested in up-to-date Longshore and related maritime news. Please invite others to join. They may do so by simply sending an email message to LongshoreUpdate-subscribe@yahoogroups.com . Content will be in the form of summaries of recent court decisions, commentary, and (where possible) links to the decisions. Generally, mailings will be limited to once a month. Anyone working in the Longshore environment should find this useful. To unsubscribe at any time, please just send an email message to LongshoreUpdate-unsubscribe@yahoogroups.com .
Redistribution permitted with attribution.