March 2017
Notes From Your Updater - Save the Date: The Signal 2017 Maritime Conference will be held May 22nd-24th, at the Westin Cleveland Downtown Hotel, in Cleveland, Ohio.
On February 21, 2017, the U.S. Supreme Court denied the petition for Certiorari in the case of Vicinay Cadenas, SA v. Petobras America, Inc., et al. , Docket No. 16-544 [see August 2016 Longshore Update]. This was a case wherein the 5thCircuit clarified its waiver analysis with respect to OCSLA mandatory choice of law. The question before the Supreme Court was, “Whether choice of law can never be waived--and therefore may be raised and must be considered at any time--if choice of law is prescribed by a non-jurisdictional statutory provision.”
The International Longshoremen's Association (ILA) is calling for a shutdown at ports along the eastern seaboard and Gulf Coast to protest hiring practices that allegedly reduce the number of dockworkers. The union said that dates for a labor action would be announced next week, and singled out the South Carolina Port Authority and the Waterfront Commission of New York Harbor for policies that allegedly lead to "job loss and economic injury."
FIRST CIRCUIT ADDRESSES SHIPPER LIABILITY ISSUE
MEDITERRANEAN SHIPPING CO., S.A. V. BEST TIRE RECYCLING, INC., ET AL.
Best Tire Recycling contracted by means of an ocean bill of lading for shipment of containers of used tires from Puerto Rico to Vietnam. The shipment was refused and accrued demurrage charges and other fees. The tire transport company contended that it was not liable because the course of conduct of the parties should have informed the carrier that the shipper was acting on behalf of a third party, the actual owner of the tires. The court held that the alleged course of conduct was insufficient to overcome the legal presumption. The appellate court concluded that summary judgment was properly granted to the carrier with respect to its claim for payment against the tire transport company, arising from the charges and fees in the bills of lading that accrued due to the late arrival of the shipment, as there were no genuine issues of material fact that the tire transport company was the shipper because it was designated as such on the bills of lading. Moreover, the pattern and presumption that the tire transport company was the shipper and that it bore liability for the charges and fees was not overcome by the parties' course of conduct, as any potential liability of others was joint and severable and they had not been located. The appellate court ruled that, except in unusual circumstances not present here, the shipper as shown on an ocean bill of lading has the primary obligation to pay the freight charges. The district court’s judgment was affirmed. (1st Cir, February 6, 2017) 2017 U.S. App. LEXIS 2102
COURT GETS A TASTE OF WHAT WE HAVE TO DEAL WITH EVERY DAY
PATILLO V. THE UNITED STATES
This is a rather bizarre Longshore case, in which Daniel C. Patillo, proceeding pro se, filed a document with the Court of Federal Claims, which the clerk deemed a complaint. The document was described as hard to decipher and did not appear to contain a cause of action or clear prayer for relief. As best the court could understand, Patillo seemed to be asserting that his disbarred attorney did not inform him of interactions between the Department of Labor and a Dr. Worthington. Patillo also appeared to allege that the Department of Labor's Seattle-based director made a decision based on unethical conduct and that cutting off all medical service for Patillo was unconstitutional. Further, Patillo alleged that two administrative law judges incorrectly determined that they did not have jurisdiction over his claims and that a 2016 decision issued by the Benefits Review Board, in which it also concluded that it lacked jurisdiction, was incorrect and somehow tainted by improper actions by Patillo's former attorneys and violated Patillo's rights under the 13th and 14th amendments to the Constitution and due process. The government moved to dismiss the complaint for lack of subject matter jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted. The court reviewed the claims history, noting that, in 2014 Patillo submitted an offer to the Director of the Department of Labor's Office of Workers' Compensation Programs to settle and close out his entitlement to future medical benefits for a lump sum of $2,356,629.60. He also filed a request for a hearing before an administrative law judge. The Director declined Patillo's offer and moved for a summary decision from the ALJ. The ALJ granted the motion and dismissed Patillo's claim, finding that he lacked authority to order the Special Fund to agree to a settlement. Patillo then filed an appeal with the Benefits Review Board. It affirmed the ALJ’s decision. The court concluded that it lacked subject matter jurisdiction over Patillo's complaint, since he failed to identify any constitutional, statutory, regulatory, or contractual basis for a right to money damages from the United States. He failed to plead the existence of a separate source of substantive law giving rise to Tucker Act jurisdiction. Neither the 13th nor 14th Amendments are money-mandating sources of substantive law. Additionally, it appeared that what Patillo was actually seeking was a review of the decision of the Benefits Review Board, which are only appealable to the court of appeals for the circuit in which the underlying work injury occurred. For these reasons, the government's motion to dismiss for lack of subject matter jurisdiction was granted and Patillo's complaint was dismissed without prejudice. (U.S. Ct of Fed. Clms, February 23, 2017, UNPUBLISHED) 2017 U.S. Claims LEXIS 131
TUG UNDER CONSTRUCTION DOES NOT AFFORD ADMIRALTY JURISDICTION
BABINEAUX V. DIAMOND B. INDUSTRIES, LLC
Anthony Babineaux was a contract welder supplied by HolleMire International, LLC to Diamond B Industries, LLC to assist in the construction of a towing vessel. Babineaux alleged he was injured when he fell while he was working on the towing vessel under construction. Babineaux filed suit asserting admiralty and maritime jurisdiction. Diamond D moved for summary judgment, contending that at that time of Babineaux alleged injury, the towing vessel was still under construction at the its shipyard and was not yet operational. Thus, because the alleged accident involved a shipyard worker allegedly injured while working in the shipyard on a vessel under construction, admiralty or maritime jurisdiction was not invoked as a matter of law. Babineaux argued that the court had admiralty jurisdiction under 28 U.S.C. §1331, which provided the court with federal question subject matter jurisdiction under §905(b) of the LHWCA. The court noted that §905(b) expressly creates a cause of action for longshoremen who allege to have been injured by a vessel. The provision does not, however, act as an independent basis for admiralty and maritime jurisdiction over a longshoreman's claims. Therefore, although §905(b) may provide Babineaux with a valid cause of action, he could not employ §905(b) as a vehicle for invoking the court's admiralty and maritime jurisdiction. The court noted that the Fifth Circuit, as well as other federal courts, have consistently held that the construction of a ship is not a traditional maritime activity. Diamond D did not dispute maritime situs, but contended that Babineaux’s claim had no maritime nexus because it arose in the context of shipbuilding, which is not a maritime activity. The undisputed evidence showed that in order to operate as a towing vessel, a vessel must be capable of pushing, pulling and steering heavy loads. Thus, tug under construction was not fit for use as a towing vessel on the date of Babineaux’s alleged injury. Based on the undisputed facts, the court found that the tug was under construction, incomplete, and not fit for its intended purpose at the time of the alleged The structure was therefore not a vessel for purposes of admiralty jurisdiction, and Babineaux’s claims arising under admiralty law, general maritime law, and §905(b) of the LHWCA were dismissed. Diamond B’s motion for summary judgment was granted. (USDC WDLA, January 20, 2017) 2017 U.S. Dist. LEXIS 19390
COURT DENIES PLAINTIFF’S MOTION TO COMPEL DISCOVERY
CANNON V. AUSTAL USA LLC, ET AL.
William Cannon filed a complaint for negligence pursuant to 46 U.S.C. §§742, 781, and 30104, unseaworthiness, maintenance and cure, and §905(b) of the LHWCA, alleging that he sustained injuries when working aboard the “USS CORONADO.” The injuries supposedly occurred while Cannon and three other employees were attempting to pick up and move lifts. When one or more of the other employees dropped their side of the lift, Cannon claimed he was left holding an excessive load and was injured. Following the deposition of Navy personnel, neither of whom had any recollection of Cannon’s alleged injuries, Cannon served a discovery request on the United States requesting that USA produce any phone text messaging and/or Facebook messenger messaging between Danny Wilson and William Cannon, any phone text messaging and/or Facebook messenger messaging from Danny Wilson to Calvin Peters and any phone text messaging and/or Facebook messenger messaging from Calvin Peters to Danny Wilson. Cannon then moved for an order from the court requiring USA to produce all information necessary for Cannon to subpoena a series of Facebook messages and/or cell phone text message communications between Navy personnel and Cannon, as well as communications between Navy personnel, in which Navy personnel discussed details surrounding Cannon’s accident. USA objected to Cannon’s request, arguing it was procedurally deficient and the motion was moot since any ruling by the court granting the motion would in all likelihood result in a motion to quash filed by Facebook. USA also argued that Cannon failed to cite case law as to whether USA would have the authority to coerce the non-party witnesses to provide their private and highly personal protected information. The court found that Cannon had failed to explain how his request for the information necessary to access the personal text messages and Facebook communications of non-party witnesses who are members of the United States Navy was proportional to the needs of the case. The evidence presented to the court provided little, if any, support for Cannon’s implied argument that there were relevant text or Facebook communications. Because Cannon’s motion to compel was premature, the court denied Cannon’s motion for discovery and his request for an award of the costs, expenses, and reasonable attorneys' fees incurred by the filing of this motion. (USDC SDCA, February 23, 2017) 2017 U.S. Dist. LEXIS 25648
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #277. 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. However, OALJ has published an indexthat 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 . . .
INJURY IN FALL FROM PLATFORM TO VESSEL NOT MARITIME
IN RE: LARRY DOIRON, INC.
Paul Savoie was employed by Specialty Rental Tools & Supply, LLC (SRTS) as a Field Supervisor III. Apache Corporation hired SRTS to perform a flow back job on its platform. Savoie claimed that a crane operator’s actions caused him to lose his balance and fall approximately eight feet, onto the deck of a construction barge owned by Larry Doiron, Inc. (LDI) , resulting in a crush type injury to his right lower extremity. Following the incident, LDI filed a complaint for exoneration from or limitation of liability and, shortly thereafter, Savoie filed a claim for injuries against LDI, as well as a third-party complaint against Apache. LDI made a formal demand that SRTS defend and indemnify LDI against any claims Savoie may bring. STS rejected the demand. At the time of Savoie's accident, he was working from a platform on an attached well located in state waters. The issue before the court was whether the facts of the case gave rise to a maritime tort against Apache (and hence, the application of maritime law) as argued by Savoie, or a land-based tort (and hence, the application of Louisiana state law) as argued by Apache. Applying the Grubart test to the facts alleged by Savoie, the court noted that the only connections, as to Apache, between Savoie’s incident and traditional maritime activity were the use of a crane barge (which was providing services to the Apache platform), and the fact that the injuries to Savoie (a non-seaman) fortuitously occurred on that crane barge. Furthermore, the specific allegations of negligence against this particular tortfeasor were that Apache failed to eliminate hazards in the workplace, failed to mitigate hazards in the workplace, failed to provide adequate hand rails around the perimeter of its platform, and failed to comply with industry standards. The court concluded there was nothing inherently maritime about any of these activities. Therefore, the court held that Savoie’s tort claims against Apache were land-based, and Louisiana state law would apply to those claims [see January 2014 Longshore Update]. SRTS ultimately settled with Savoie, and the district court severed the indemnity claims from the personal-injury case. The parties reserved the right to appeal the limited issue of whether defendants were contractually obligated to defend and indemnify
plaintiffs. The court granted the motion and entered final judgment. STS filed a timely notice of appeal. The appeal forced the appellate court to determine whether the contract was maritime in nature. Plaintiffs Larry Doiron, Inc. and Robert Jackson argued that maritime law applied. Specialty Rental Tools & Supply, Oil States Energy Services, and Zurich American Insurance Company (collectively, SRTS) argued that state law, specifically that of Louisiana, applied. The appellate court concluded that, although the question was close, the specific contract at issue, which was an oral work order in effect at the time of injury, should be considered maritime. The court began by noting that the contract contained a choice-of-law provision, that it shall be construed and enforced in accordance with the general maritime law of the United States whenever any performance is contemplated in, on or above navigable waters, whether onshore or offshore. In the event that maritime law is held inapplicable, the law of the state in which the work is performed shall apply. Examining the flow back operation itself, the appellate court acknowledged that the district court was likely correct that flow back services have little to do with traditional maritime activity or commerce. However, the appellate court went on to note that, even if flow-back services in the main were not maritime, this was not a sufficient answer under Davis, under which no single factor is dispositive. The appellate court found that four of the six Davis factors - one, two, four, and six - indicated the contract was maritime in nature. The appellate court concluded that the oral work order was the relevant contract and that it was a maritime contract. (5th Cir, February 23, 2017) 2017 U.S. App. LEXIS 3331
Updater Note: Thanks to Ken Engerrand of Brown Sims, Houston, TX, for sharing this case with me. He is of the opinion that this could be an important case. The Fifth Circuit held that a contract to perform flow-back services on a platform was a maritime contract when the performance eventually necessitated the use of a crane barge. The key point is the well-reasoned dissent from Judge Davis (with Judge Southwick), advocating en banc reconsideration to clean up the law and suggesting the adoption of the following test: So long as a contract’s primary purpose is to provide services to promote or assist in oil or gas drilling or production on navigable waters aboard a vessel, it is a maritime contract. Its character as a maritime contract is not defeated simply because the contract calls for incidental or insubstantial work unrelated to the use of a vessel.
APPELLATE COURT DISMISSES CHALLENGE TO JOHANSEN
DALLAS V. UNITED STATES OF AMERICA
Robert Dallas brought this suit against the United States Army Corps of Engineers seeking compensation for injuries he allegedly sustained during the course of his employment as a Corps civil service employee. Dallas worked as the master of a tow boat owned by the Corps, when he was allegedly injured by a free-swinging survey vessel that was suspended by the crane of a derrick barge, all of which were owned by the Corps. Following the accident, Dallas received federal workers' compensation benefits for his injuries. Then Dallas brought the instant suit for damages under the Jones Act and general maritime law, alleging that his injuries were caused by the Corps' negligence and that the vessel that he was assigned to was unseaworthy. He also alleged mishandling of his workers' compensation claim. As redress, he sought full compensatory damages for pain and suffering, disability, loss of enjoyment of life, medical expenses, economic losses, maintenance and cure, along with attorneys' fees and costs. The Corps moved to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, which Dallas opposed. The district court granted the motion to dismiss on the basis of lack of subject matter jurisdiction. The district court agreed with the Corps that the Federal Employees' Compensation Act set out the exclusive remedy for Dallas's injuries and therefore concluded that it did not have subject matter jurisdiction to consider his claims. Dallas timely appealed, arguing that, as a vessel master, he is exempted from FECA's exclusivity provision. He contended that Johansen was wrongly decided because its interpretation of FECA is contrary to the statute's plain text and legislative history. The appellate court acknowledged that the FECA provides an exception to the exclusivity provision, expressly stating that it "does not apply to a master or a member of a crew of a vessel." Yet, despite this seemingly clear exception, the Supreme Court has long interpreted FECA to be "the exclusive remedy for civilian seamen on public vessels," regardless of whether they are a master or crewmember of the vessel. The appellate court pointed out that it was not at liberty to consider whether the Supreme Court’s decision in Johansen was wrongly decided. This bedrock principle is all the more true when the Supreme Court itself has expressly declined to reconsider a particular precedent. The appellate court was therefore bound by Johansen's directive that FECA is "the exclusive remedy for civilian seamen on public vessels." Dallas was a civilian seaman on a publicly owned vessel and, accordingly, Johansencompelled the conclusion that his suit was barred by FECA's exclusive remedy provision. The district court did not err in dismissing his suit for lack of subject matter jurisdiction and the judgment of the district court was affirmed. (5th Cir, February 27, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 3479
NINTH CIRCUIT ADDRESSES DUTY OF CARE OWED TO PASSENGER
CASORIO V. PRINCESS CRUISE LINES, LTD.
Mary Casorio appealed a district court's order dismissing her action against Princess Cruise Lines, Ltd. Casorio's suit arose from the eventual death of her husband James Casorio (decedent), who fell while disembarking from a Princess Cruise. The parties disputed whether admiralty jurisdiction and the Death on the High Seas Act (DOHSA) applied to any or all of Casorio's claims. The appellate court declined to reach this issue, because the duty of care Casorio claims Princess breached did not exist under either general maritime law or state law. With respect to state law, the California "wrongful ejection" cases on which Casorio relied were held inapplicable, because Casorio did not claim that Princess failed to take her and decedent to their ultimate destination as contracted. Casorio claimed that Princess was required to help arrange for medical air evacuation to hospital superior to the one on St. Maarten where the decedent passed away. The appellate court found that, under the circumstances, it was reasonable for Princess to send decedent to a hospital with better medical care than the ship could provide, where decedent's condition could be accurately evaluated and air evacuation could be arranged. To require more would be to impose a higher burden on common carriers than California law required. Similarly, general maritime law did not require the level of care Casorio argued Princess should have exercised. Maritime law requires a cruise ship to exercise reasonable care under the circumstances of each case. The kind of care sought by Casorio would not be reasonable under the circumstances, and Casorio provided no authority that said otherwise. Because Princess did not owe the duty of care Casorio sought to impose, the district court properly dismissed Casorio's claims under DOHSA, as well as under state law. Thus, the district court did not err in dismissing Casorio’s claims and the dismissal was affirmed. (9thCir, February 16, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 2758
OYSTER BUSINESS NOT PLEASED WITH BP SETTLEMENT
CLAIMANT ID 100009540 V. BP EXPLORATION & PRODUCTION, INC., ET AL.
ARTCC Enterprises, LLC appealed the district court's denial of its request for discretionary review of a decision of the administrators of the Deepwater Horizon Economic and Property Damages Settlement. ARTCC operated an oyster processing business under the name Bayou Oyster, which commenced operations on or about June 2009, but was forced to close its doors on May 5, 2010, due to the cessation of oyster harvesting following the Deepwater Horizon oil spill. ARTCC filed a "Start-Up Business Economic Loss" claim for compensation with the court Supervised Settlement Program (CSSP), which had been created pursuant to the E&P Settlement.
The CSSP Claims Administrator issued an Eligibility Notice, which determined that ARTCC was entitled to $29,567.81 under the E&P Settlement, an amount that was substantially offset by the approximately $375,000 in payments that ARTCC had already received from BP through loss compensation programs that preceded the establishment of the CSSP. The award amount was derived using the "Failed Start-Up Business" compensation framework. The CSSP Appeal Panel affirmed the determination of the Claims Administrator, awarding ARTCC $29,567.81. ARTCC, proceeding without counsel, sought discretionary review from the district court, which it denied. On further appeal, ARTCC specifically contested the amount of compensation it was awarded on its claim for economic loss, filed through the settlement program. BP Exploration & Production, Inc. cross appealed the district court's order granting ARTCC's motion for an extension of time in which to file the present appeal. The appellate court first addressed BP’s counter-appeal that the district court erred in granting ARTCC an extension of the time to appeal. Given the leeway granted to district courts, the minimal delay and prejudice involved, and the excuse provided by ARTCC, the appellate court concluded that the district court did not abuse its discretion in granting the motion to extend the time for filing a notice of appeal. The appellate court began its analysis by noting that the Appeal Panel explained that because ARTCC began its operations in June 2009 and ceased operations in May 2010, the Claims Administrator properly calculated its losses using the Failed Start-Up framework to derive the award of compensation to which ARTCC was entitled. Moreover, ARTCC had argued that other components should have been inserted into the award calculation, but those components were not permitted or authorized by the E&P Settlement and were correctly excluded. The appellate court discerned no error in the CSSP's interpretation or application of the E&P Settlement. ARTCC argues that the CSSP should have classified it as a continuing business and applied the compensation framework for a "Failed Business," rather than a "Failed Start-Up Business." The appellate court disagreed. ARTCC did not otherwise contend that the compensation award calculated under the "Start-Up Business" compensation framework was erroneous. Therefore, under this prong of our analysis, the district court did not abuse its discretion in declining to review the CSSP decision. The judgment of the district court was affirmed. (5thCir, February 17, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 2806
QUESTION OF FACT REGARDING YACHT WARRANTY
GLOBAL QUEST, LLC V. HORIZON YACHTS, INC, ET AL.
Global Quest, LLC appealed from a district court's grant of summary judgment to Horizon Yachts, Inc. on all but one count of Global’s amended complaint and to Horizon on its counterclaim for foreclosure of a promissory note. Global appealed from the district court's entry of partial final judgment pursuant to Rule 54(b) of the Federal Rules of Civil Procedure. The appellate court reversed the district court's grant of summary judgment for Horizon, finding that the Purchase and Sale Agreement provided that the yacht is accepted in its "as is" condition and that the seller and brokers have given no warranty as to its condition. An addendum, executed shortly thereafter, included a limited express warranty covering design defects for a period of one year. The appellate court therefore concluded that there were genuine issues of material fact as to whether the limited warranty was incorporated into the contract. The district court's grant of summary judgment to Horizon on Counts I, III, IV, VII, and VIII of Global’s amended complaint and the grant of summary judgment to Horizon on its counterclaim was reversed. The appellate court affirmed the grant of summary judgment as to the remaining claims. (11th Cir, February 24, 2017) 2017 U.S. App. LEXIS 3372
COURT CONCLUDES DREDGE AND APPURTENANCES WERE PROPERLY MARKED
NGUYEN, ET AL. V. WEEKS MARINE, ET AL.
This was a personal injury action brought by Sang Nguyen, Phung Nguyen, Ky Phan, Heiu Dinh, and Hai Tran against the owner and operator of the dredge “C.R. MCCASKILL,” Weeks Marine, Inc. Plaintiffs alleged damages caused by Weeks’ negligence in connection with an allision occurring between S. Nguyen’s vessel, a Contender recreational vessel, and the dredge’s floating discharge pipeline that was located behind the “C.R. MCCASKILL.” The allision occurred between 2:00 & 2:30 AM, in the Mississippi River. S. Nguyen and P. Nguyen were the only eyewitnesses to the allision. S. Nguyen was operating his vessel, the Contender, at the time of the allision. P. Nguyen was allegedly acting as the “lookout” aboard the Contender at the time of the allision. S. Nguyen and P. Nguyen were standing right next to each other at the center console of the Contender during the ride back from the all-day fishing trip, when the vessel allided with a floating discharge pipeline attached to the dredge while traveling . approximately 30 miles per hour. The remaining plaintiffs in the case were asleep on beanbag chairs in the rear of the Contender. All five plaintiffs were allegedly injured as the result of the allision with the dredge pipeline, which was properly marked. There was also a published Notice To Mariners about the dredging operation. S. Nguyen never heard of the Navigational Rules of the Road prior to the allision and never attended any boating education courses. It was also undisputed that the Contender never attempted to contact the dredge to make passing arrangements prior to the allision. S. Nguyen was cited for careless operation by the Louisiana Department of Wildlife and Fisheries for the allision. Nevertheless, plaintiffs sued Weeks Marine, claiming that the dredge pipeline was not visible and not properly lit at the time of the allision and that their respective alleged injuries were caused by the negligence of Weeks Marine. Following a bench trial, and after thoroughly reviewing all of the evidence and sometimes conflicting testimony, the court found that the credible evidence showed that the lights on the MCCASKILL, as well as its floating discharge pipeline, complied with and were functioning pursuant to the navigable rules of the road, U.S. Coast Guard regulations, CFRs, as well as their duties with the Corps of Engineers performing that dredging operation at the time of the allision. Nguyen’s lack of knowledge of hazards to navigation, or even trying to determine whether or not there were hazards to navigation, combined with his lack of understanding of the meaning of the MCCASKILL’s navigational lighting system, and the lack of functioning radar, not only violated the navigational rules of the road, but, to the extent a reasonable positioning of a lookout, even without the regulations, a safe speed considering the risk involved, the time of day, and the circumstances of the long fishing trip, were the sole causes of the allision. The appropriate standard of care in an allision is reasonable care under the circumstances. The court found that Weeks Marine exercised such care, not only in terms of its lighting systems but also by giving notice to mariners. Having no knowledge of the navigational rules, Nguyen created an unreasonable risk. The court also concluded that plaintiffs had fail to show that the application of the Pennsylvania or Oregonrules should apply. Therefore, the court ruled in favor of the defendant and against the plaintiffs, dismissing their complaint based on the court’s credibility determinations. (USDC EDLA, February 26, 2017) 2:16-cv-01185
Updater Note: Thanks to Matt Popp, and the entire team over at Waits, Emmett, Popp & Teich of New Orleans, LA, for knocking another one out of the park. These “he said, she said” cases are always tough to win. I’m very pleased that Judge Lemelle found our personnel were more credible than the plaintiffs here.
COURT EXPLAINS SHIPOWNER’S DUTY TO INVESTIGATE AND PROVIDE CURE
ROBINSON V. F/V LILLI ANN, LLC, ET AL.
This case arose out of a stroke that Jeffrey Robinson allegedly suffered, while employed as a seaman by defendant Coastal Villages Longline, LLC, as a crew member of a fishing vessel owned and operated by F/V Lilli Ann, LLC. Robinson self-administered two sleep studies, but never received an affirmative diagnosis of sleep apnea. Robinson allegedly told his captain that he would need to take off the next two fishing trips in order to have the tonsillectomy and palate surgery, but was told by the captain to postpone the surgery because he was needed on the fishing trips. The captain denied telling Robinson to postpone his surgery. During one of the fishing trips, Robinson began to feel unwell and requested treatment at the clinic. Prior to his arrival at the clinic, Robinson began to vomit, had trouble walking, and complained of a tingling sensation on the right side of his face. Robinson was eventually transported via air ambulance to a hospital, where he was diagnosed with a stroke. Robinson filed a seaman’s suit, claiming that his employer and the owner of the fishing vessel on which he worked breached their maritime duty to provide maintenance and cure by failing to take all reasonable steps to ensure that he received proper care and treatment for his severe sleep apnea. Defendants moved for summary judgment, arguing that their maritime duty of maintenance and cure did not extend to requiring Robinson to get medical care for a medical condition unrelated to his employment — and that even if it did, they did not breach that duty. Robinson argued that, under the maritime duty to provide maintenance and cure, defendants had a duty to ensure that he received medical care for his sleep apnea. Defendants asked the court to clarify the standard of care imposed by the duty to provide maintenance and cure with regard to medical conditions unrelated to the crew member's employment. Citing Hedges v. Foss Maritime Co., the court initially observed that the duty to provide cure encompasses not only the obligation to reimburse medical expenses actually incurred, but also to ensure the seaman receives the proper treatment and care. Failure to furnish such care, even at the cost of a week's delay, has been held by the Supreme Court to be a basis for damages. Although defendants argued that Robinson sought a determination that defendants must require sick or injured seamen to receive medical care, the court found that this misrepresented Robinson’s argument and the Robinson was actually asserting that the standard of care required defendants to take all reasonable steps to ensure that he received proper care and treatment, which was a correct recitation of the applicable standard of care. The court found Robinson was incorrect, however, in arguing that the duty of maintenance and cure necessarily demanded that defendants investigate his illness. Vaughan concerned a ship owner's obligation to investigate a claim for compensation, and it did not support Robinson’s assertion that a ship owners' duty of maintenance and cure obligated them to conduct a medical investigation into their employees' symptoms. On the facts of a given case, failure to inquire into a seaman's health may constitute a breach of the duty to ensure proper care, but the court declined to impose an affirmative duty to investigate in all cases. Defendants asked the court to find as a matter of law that they did not breach their duty to provide maintenance and cure. However, the court found that a genuine issue of fact existed regarding whether the vessel captain affirmatively told Robinson to postpone his tonsillectomy and palate surgery. Given this fact issue, summary judgment on the issue of breach was not appropriate. The defendants’ motion for partial summary judgment was granted in part and denied in part. (USDC WDWA, February 22, 2017) 2017 U.S. Dist. LEXIS 24878
COURT DISMISSES PUNITIVE DAMAGE CLAIM UNDER GENERAL MARITIME LAW
WADE V. CLEMCO INDUSTRIES CORP. ET AL.
Rose Wade , the widow of Garland R. Wade, claimed that the decedent died of exposure to silica dust which resulted in silicosis and eventually connective tissue cancer. The decedent was employed as a sandblaster and paint sprayer, for approximately 10 years, on vessels owned by Coating Specialists Inc. He also performed work on permanent fixed platforms owned and/or operated by Chevron U.S.A. Inc., both in Louisiana and in federal waters. Plaintiff filed suit against Clemco Industries Corp., Mississippi Valley Silica Company, Lamorak Insurance Company, and Chevron U.S.A. Inc., on the grounds that defendants designed, marketed, manufactured, distributed or sold negligently-designed and manufactured products, exposing the decedent to asbestos fibers which proximately and directly caused or aggravated his illness and death. Plaintiff sought $5,000,000 in damages, claiming she is entitled to a wrongful death action against defendants pursuant to Louisiana and general maritime negligence law. Plaintiff alleged that the defective design, manufacture, and distribution of the materials used by decedent in his work as a sandblaster exposed him to silica and lead to his connective tissue cancer. Plaintiff also claimed, among other things, failure to warn and failure to provide adequate equipment and protective devices by Clemco, Mississippi, and Chevron and that Chevron was negligent in allowing decedent to come onto and work on its platforms without proper equipment and materials, consequently failing to provide a safe workplace. Defendants moved for partial summary judgment dismissing plaintiff's claims for punitive damages under general maritime law, arguing that a Jones Act seaman or his survivors cannot recover non-pecuniary damages from a non-employer third party, citing Scarborough v. Clemco Industries, Inc. Plaintiff opposed defendants' motions, arguing that the court's decision in Collins applied and she was entitled to recover non-pecuniary damages against non-employer third-parties under general maritime law. The court acknowledged that, for a time after Townsend, it was unclear whether punitive damages were recoverable under general maritime law for non-maintenance and cure claims or were limited to only maintenance and cure claims. More recently, however, in McBride, on a rehearing en banc, the Fifth Circuit concluded that Townsend was limited to maintenance and cure claims and that the reasoning in Miles remained sound for seaman personal injury and wrongful death claims. In its en banc opinion, the Fifth Circuit determined that neither a seaman, nor his survivor, can recover punitive damages for personal injury or wrongful death claims based on either the Jones Act or general maritime law. As plaintiff elected to bring her claim under general maritime law, she was bound by any limitations on damages that exist under that body of law. The court concluded it was clear, since the en banc opinion in McBride that, in wrongful death cases brought under general maritime law, a survivor's recovery from employers and non-employers is limited to pecuniary losses. This was further supported by the Fifth Circuit's decision in Scarborough, which held a seaman may not recover punitive damages against either his employer or a non-employer third party. The defendants’ motion for partial summary judgment was granted and plaintiff's claims for non-pecuniary damages were dismissed. (USDC EDLA, February 1, 2017) 2017 U.S. Dist. LEXIS 13580
DON’T LET ALL THAT DIRT ABOUT ME GO TO THE JURY (CONT.)
GOBERT V. ATLANTIC SOUNDING ET AL.
Paul Gobert, Jr. filed suit for two alleged injuries he sustained while employed by Atlantic Sounding Company, Inc. Gobert was walking down steps from the lever room on a Weeks Marine, Inc. dredge, when he slipped and allegedly fee down the remaining six steps, allegedly injuring his right arm, neck and lower back. He was treated and released to return to work. Two months later, Gobert complained of a second incident involving an alleged infection that he sustained in his right foot because he got mud in his boot. Gobert eventually filed suit for Jones Act negligence and under general maritime law for both incidents. Prior to trial, Gobert moved in limine on a number of issues that arose during discovery. Since Gobert filed his motion, however, the parties were able to reach a compromise on most of the issues raised by the motion. Other issues were decided by the court in an earlier opinion [see February 2017 Longshore Update]. Subsequently, Weeks Marine moved to exclude testimony from Gobert’s medical advocate, Berliner, as to the expected cost of a future surgery being recommended, arguing that an expert report was required if Gobert intended to have his medical advocate testify as to information he received from sources other than the plaintiff. Weeks Marine argued that Berliner's cost estimates were inadmissible because they didn’t come from Berliner's personal knowledge, but instead from other doctors and facilities. This Court agreed with the view that FRCP 26(a)(2)(C) permits an expert to testify as to opinions that were formed during the course of treatment. Accordingly, testimony regarding the future implications of an injury or future medical treatment more generally can be permissible provided that the opinion was formed by the treating physician during treatment. The court found that the record established that Berliner formed his opinions during the course of treatment, and his proposed testimony as to the likely cost of the surgery he was recommending did not violate Rule 26(a)(2)(B). The court deferred the question of the reliability of the proposed testimony until trial. The court noted that the reliability of the proposed testimony would turn on a number of factors such as the methodology Berliner used to arrive at his estimates. Weeks Marine’s motion was denied in part and deferred in part. The court ordered that no mention was to be made of the costs of the proposed surgery before the jury unless the court permitted the same following a bench conference. (USDC EDLA, February 1, 2017) 2017 U.S. Dist. LEXIS 13582
In another ruling in this same case, the court addressed Weeks Marine's motion in limine moving to exclude a photograph depicting a puddle of soapy water on the dredge , arguing that it was taken a few days after Gobert’s fall, and depicted a puddle with foam bubbles after a cleaning. All parties agreed that the photograph depicted a separate area of the dredge from where the accident occurred. Weeks argued that the photograph was irrelevant and unfairly prejudicial because it did not depict the accident site or the conditions on the boat at the time of the accident, suggesting that the photograph will confuse the issues and create the false impression that the accident site resembled the conditions depicted in the photograph. Gobert countered that the photo would be helpful to the jury in visualizing deck conditions on the dredge after a cleaning. Gobert further suggests that an additional limiting instruction could cure any lingering prejudice by informing the jury that the photo is being used for illustrative purposes only. The court observed that the photograph was neither particularly helpful to the nor particularly unfair to Weeks. jury will likely already believe the deck was wet when Gobert fell because the supervisor's injury report indicates that the steps were wet and slippery. The Court also has no doubt that Weeks will be able to make sure the jury knows that the photograph was taken on a different part of the dredge. Plaintiff's main justification for the puddle photo is that it is illustrative of what the conditions were like at the time of the accident. Because the Court would be in a better position at trial to determine whether the conditions at the time of the accident were substantially similar to the conditions depicted in the photograph, the court deferred ruling on the admissibility of the photograph, noting that the photograph shall not be referenced by witnesses or shown to the jury unless the court permits the same following a bench conference. Weeks also moved to exclude photographs and a videotape taken by plaintiff's counsel during his inspection of the vessel. The inspection occurred on a rainy day, and Weeks suggests that the photos are irrelevant and/or unduly prejudicial insofar as the photographs supposedly do not accurately depict the deck conditions on the dredge at the time of the accident. The court was not persuaded that the probative value of the photographs would be substantially outweighed by the risk of unfair prejudice. Even if the dredge was dry on the day of the accident—a state of affairs seemingly belied by the supervisor's injury report indicating that the steps were wet and slippery on the day of the accident—the Court would still determine that the probative value of the photographs of the accident site on the dredge was not outweighed by the risk of unfair prejudice. Weeks's motion to exclude the photos and video of the accident site was denied. Finally, Weeks objected to the introduction of certain portions of testimony that was not within the expertise of the witness. In response, Gobert offered to withdraw the testimony. Accordingly, Weeks's motion in limine was granted. Weeks Marine's motion was granted in part, denied in part, and deferred in part. (USDC EDLA, February 6, 2017) 2017 U.S. Dist. LEXIS 16007
This same case was tried to a jury beginning February 13, 2017. After a three day trail the jury found in favor of Weeks Marine, holding that there was no negligence on the part of Weeks Marine and the dredge was not unseaworthy. The court entered judgment in favor of Weeks Marine and against Paul Gobert, Jr. It was further ordered that all of plaintiff's claims be dismissed with prejudice and that the claims of the intervenors were dismissed as moot. (2:15-cv-00650 February 15, 2017)
Updater Note: Another great win for Matt Popp and our team at Waits, Emmett, Popp & Teich, of New Orleans, LA.
SEAMAN UNSUCCESSFUL IN HAVING MARINE EXPERT EXCLUDED (CONT.)
IN RE: M&M WIRELINE & OFFSHORE SERVICES, LLC
Beaux Cormier was employed by M&M Wireline & Offshore Services, LLC as a deckhand. Cormier alleged that he was transported from a platform to the nearby M&M crewboat by a Jon Boat, owned and/or operated by Saratoga Resources, Inc. According to Cormier, the operator of the Jon Boat positioned the boat so that the front of the Jon Boat was near and/or pushed up against the side of the crewboat. When Cormier attempted to step up onto the deck, he alleged that the Jon Boat backed away, requiring Cormier to jump back onto the Jon Boat. As a result, Cormier avers that he lost his balance and landed partially on the Jon Boat and partially in the water, allegedly causing him injuries. Cormier filed suit, alleging that defendants were liable to him for the injuries caused by their negligent acts and for failing to provide seaworthy vessels. Defendants argued that any injury Cormier sustained resulted solely from Cormier's own fault, and that Cormier's alleged back injury pre-existed the incident at issue. M&M also proceeded to file a complaint for exoneration or limitation of liability and Cormier filed his answer to M&M’s complaint. M&M then moved to exclude the report and prospective testimony of Cormier’s proposed liability expert, Robert Borison. Cormier opposed the motion. In an earlier opinion, the court granted in part and denied in part Cormier's similar motion to exclude M&M’s marine safety expert witness [see October 2016 Longshore Update]. In another earlier opinion, the court also found that Martin Quiram, the owner of M&M, with eleven years of personal experience in the oilfield industry, may offer such opinions as a lay witness, provided that they were rationally related to Quiram's own perceptions. Accordingly, Cormier’s motion in limine was denied [see February 2017 Longshore Update]. After fully considering the arguments of both parties, the evidence of record, and the legal standards for expert testimony, the court found that Borison's expert testimony was based on sufficient facts, data, and specialized knowledge and would be helpful to the fact finder, and is thus admissible under Rule 702. The Court noted that M&M objections to Borison's testimony were best addressed through cross-examination. The court further found that Borison's anticipated testimony that the fact finder may want to use an inapplicable OSHA regulation to determine the standard of care was irrelevant and should be excluded. Accordingly, M&M’s motion was granted in part, to the extent that Borison's references to OSHA regulation 29 C.F.R. § 1926.605(b)(2) were excluded and denied in part to the extent that the rest of Borison's testimony was admissible under Federal Rule of Evidence 702. (USDC EDLA, February 3, 2017) 2017 U.S. Dist. LEXIS 15321
WHAT IS THE PROPER COURT? (CONT.)
THOMAS V. EDISON CHOUEST OFFSHORE, LLC ET AL.
Wren Thomas was the captain of a supply vessel supporting Chevron, USA's platform operations off the Nigerian coast. Thomas alleged that he told Chevron and Edison Chouest Offshore that he feared pirate attacks and that the defendants knew of earlier attacks. Indeed, pirates attacked the supply vessel, the night of October 23, 2013, and Thomas and his engineer surrendered. The pirates held Thomas for 18 days, during which Thomas alleged that he was tortured and poorly fed. When Thomas was released, he was malnourished and suffered from posttraumatic stress disorder, sleep disorders, and other medical problems. Thomas sued Chevron and Edison in Texas state court, asserting claims under the Jones Act, and for unseaworthiness and maintenance and cure against both defendants. Chevron timely removed, and Edison consented. Edison argued that it was not subject to personal jurisdiction and should be dismissed from the suit. Chevron argued that the Jones Act claims against it were improper, and that the court should dismiss Edison for lack of personal jurisdiction, then find that Chevron and Thomas were diverse and that the non-removable Jones Act claims against Chevron were improperly joined, allowing federal removal jurisdiction. Thomas sought remand, arguing that his Jones Act claims were not removable and that Edison is an in-state defendant. Based on the pleadings, the motions, responses, and replies, the arguments, and the applicable law, the court granted Edison's motion to dismiss, denied Thomas's motion to remand, and granted Chevron's motion for summary judgment for failure to state a claim [see August 2015 Longshore Update]. Thomas timely appealed, arguing that the district court misinterpreted or ignored his request to add maritime negligence claims to his complaint, claims which would not depend on an employment or contractual relationship between Thomas and Chevron. Because the notice Thomas gave of his intent to amend his complaint was sufficient under the appellate court’s precedent, and because his amended claims would not have been futile, the appellate court vacated the district court's judgment, reversed the court's ruling on Thomas's motion for leave to amend, and remanded for further proceedings [see September 2016 Longshore Update]. Now pending before the court was Edison’s motions to compel Thomas’s attendance at an independent medical examination and to submit to a vocational rehabilitation evaluation. Edison argued that Thomas's mental condition had been placed in controversy because he was seeking damages for several emotional and mental conditions that he alleged resulted from his capture. Thomas's memorandum in opposition focused on convincing the court that Edison waited too long to make its request for the independent medical examination and were not entitled to an extension of their expert report deadline. The court found that Thomas's mental condition was clearly in controversy and that good cause for an independent psychiatric examination had been established. Further, the court found that Thomas had failed to establish any basis for allowing his counsel to be present at said examination and held that it would be inappropriate to limit the areas of inquiry because discussing the factual basis for Thomas's mental conditions may be part of the psychiatric analysis. Regarding Thomas's claims of untimeliness, the court noted that neither the expert report deadlines nor the discovery deadlines had expired so timeliness could not serve as a bar to the scheduling of an independent medical examination. Turning to Edison’s request for an independent examination with a vocational rehabilitation expert, the court agreed that Thomas had claimed that he could not return to work as a captain and that he had presented in person to his own vocational rehabilitation expert. Thomas opposed the motion, arguing that limitations should be imposed on the scope of questioning to prevent interrogation on issues of liability. The court found that Thomas had put his ability to work at issue by claiming lost past and future wages as a result of the alleged injury. The fact that Thomas had a vocational rehabilitation expert report prepared to assist in proving his case further demonstrated that his ability to work was in controversy. Further, the court found that Edison had shown good cause for an examination by its vocational rehabilitation expert and there was no indication that Edison’s expert would employ improper techniques or any other circumstance that would warrant limitation of the examination or presence of counsel. Edison’s motion to compel Thomas to submit for a psychiatric examination and a vocational rehabilitation examination was granted. (USDC EDLA, February 2, 2017) 2017 U.S. Dist. LEXIS 15123
In a separate opinion, the court addressed a motion to quash subpoena filed by Galliano Marine Services, LLC and Offshore Service Vessels, LLC (OSV) arguing that the subpoena was overly broad, because it sought records related to two vessels that were not involved in Thomas's capture. Galliano and OSV assert that they had standing to challenge the subpoena issued to ABS because the subpoena sought documents and materials to which they had an interest. The Court noted that the subpoena referred to ECO vessels, but ECO was not a party to the motion to quash. Although Galliano and OSV did not move for a protective order, they note in reply that a protective order could be issued to limit the scope of discovery even if they do not have standing to challenge the subpoena under Rule 45. Thomas opposed the motion to quash, arguing first that Galliano and OSV lacked standing to quash the subpoena on the basis of over breadth or irrelevance. Thomas also argued that his document request should not be limited to a certain time period because any lessons ECO may have learned from ABS about safety and security in West Africa at any time would be relevant. The court found that Galliano and OSV lacked standing to challenge the subpoena via a motion to quash. Although they attempted to elaborate on their conclusory allegation of privilege by stating that the subpoena sought documents that are "proprietary and confidential," this remained insufficient to establish standing. The court could not determine whether the documents are entitled to protection. Moreover, to the extent confidentiality was a concern, the court noted that the parties had already entered into a blanket protective order to prevent disclosure of confidential information. The motion to quash was denied. (USDC EDLA, February 15, 2017) 2017 U.S. Dist. LEXIS 21076
MOTION TO TRANSFER VENUE GRANTED (CONT.)
EVANS V. VIDALIA DOCK & STORAGE COMPANY
Cameron Evans filed a seaman's complaint under the Jones Act and general maritime law against his employer, Vidalia Dock & Storage Company, in the United States District Court for the Western District of Louisiana. Vidalia Dock is a corporation authorized to do and doing business in the State of Louisiana. The complaint alleged negligence on the part of Vidalia Dock, resulting in injuries and damages to Evans. Evans contended that he was instructed to take a pump on board a sinking barge owned by Bruce Oakley, Inc., however, the salvage attempt was abandoned and the barge sank, causing Evans’ boat to be tossed. Evans fell on deck and was allegedly injured. Vidalia Dock brought third-party claims in the Louisiana action against Oakley, owner of the barge on which Evans was working at the direction of his employer, and the Natchez-Adams County Port. Vidalia alleged the Port Commission was negligent because it used insufficient and/or substandard lines, knots, and crew oversight to moor the barge, allowing it to break away and drift. The Port Commission filed a motion to dismiss the claims alleged in Vidalia's original third party complaint, alleging lack of jurisdiction and failure to state a claim, which was denied. The Port Commission answered Vidalia's third-party complaint, asked for a jury trial, and made a counterclaim for negligence in attempting to tow a barge that had a disproportionately weighted bow and unsealed hatch covers on and/or near the bow. Oakley filed a Rule 12(b)(6) Motion to Dismiss. The Louisiana District Court granted the motion only partially, dismissing Vidalia Dock's third-party unseaworthiness claim against Oakley, but declined to address Vidalia Dock's third-party negligence claim against Oakley. Vidalia Dock appealed the district court's dismissal of its unseaworthiness claim to the Fifth Circuit, which affirmed the district court’s judgment. Oakley then filed a complaint against Vidalia Dock in the Southern District of Mississippi, alleging $730,000 in damages to its barge as a result of the Evans incident. Oakley also named Natchez Port as a defendant. Vidalia Dock moved to transfer Oakley’s action to the Western Division of Louisiana, on grounds of judicial economy and comity, as well as the "first to file" rule promulgated by the Fifth Circuit. The court also found that the case should be transferred to the Western District of Louisiana, because Oakley's complaint was a compulsory counterclaim that must be included in the Louisiana litigation. Vidalia Dock’s motion to transfer venue was granted [see October 2016 Longshore Update]. The Port Commission, Vidalia, and Evans then filed a joint motion for partial dismissal, agreeing to dismiss Evans's claims against the Port Commission, Vidalia, and Oakley. Vidalia and the Port Commission also agreed to dismiss Vidalia's third-party complaint against the Port Commission, and all other cross-claims and incidental demands for contribution and indemnity between them that are related Evans's personal injury claims. That motion was granted. Oakley filed a second motion to dismiss, asking the court to dismiss Vidalia's negligence claims that were alleged in the amended third party complaint. The court found that Vidalia failed to state a claim against Oakley for maritime negligence. Vidalia had failed to allege what duty was owed by Oakley to Evans, as a crewman on the salvage vessel, and none had been identified. Instead, Vidalia continued to argue that Oakley owed a duty to the salvage vessel and its crew because it was the tug for the barge. However, that claim had been foreclosed by the Fifth Circuit. The court concluded that Oakley did not owe a duty to Evans to prevent the barge from sinking, displacing the water, and tossing the salvage boat. Oakley's motion to dismiss Vidalia's negligence claim was granted and Vidalia's negligence claim against Oakley was denied and dismissed with prejudice. (USDC WDLA, February 1, 2017) 2017 U.S. Dist. LEXIS 14986
SUMMARY JUDGMENT DENIED ON PUNITIVE DAMAGES ISSUE
HOTTMANN V. BRYCE HATCH, ET AL.
This is an admiralty and maritime action brought pursuant to the Jones Act in which Luke Hottmann alleged his back was injured while working aboard a vessel owned and operated by Bryce Hatch. The parties agreed that Hottmann sought and received treatment for a back injury; however, defendants denied Hottmann was injured on the boat and contended that any injury occurred after his time on the vessel. Defendants moved for partial summary judgment arguing that Hoffmann’s punitive damages claim should be dismissed because, Hoffmann could not establish the requisite willful and wanton disregard of the maintenance and cure obligation and there were no grounds upon which to find that defendants' denial of such benefits was willful or wanton and therefore there were no grounds for a punitive award. The court pointed out that a shipowner's mere assertion that an injury or illness did not occur in the service of the ship is not a conclusive "reasonable basis" or "colorable legal defense" that shields them from a punitive damages or attorneys' fees award. Because there existed a question regarding whether defendants' justification for denying Hoffmann’s maintenance and cure claim was rooted in pretext or a good faith belief, the claim for punitive damages must go to the jury. The court denied the motion, holding that even if there were not manifest factual disputes present, it would be better to proceed to a full trial on the claims because in the circumstances of the case a fuller record would afford a more substantial basis for decision. Defendants’ motion for partial summary judgment was denied. (USDC DOR, February 14, 2017) 2017 U.S. Dist. LEXIS 20608
SUIT DISMISSED FOR LACK OF PERSONAL JURISDICTION
MAGUIRE V. HONG KONG INTERNATIONAL AVIATION LEASING CO., LTD., ET AL.
William Maguire slipped and fell on a floating ramp while boarding a private yacht owned, operated, and/or managed by Hong Kong International Aviation Leasing Co., Ltd.'s (HKI). Maguire had received an offer from Sanya Artemis Yacht Entertainment Co., Ltd. to serve as captain of the vessel. Maguire accepted the offer and he departed from the United States to Sanya, Hainan, China, where the vessel was moored. While making his way back from lunch at the marina, Maguire fell as he was stepping off a floating ramp onto a skid plate at the end of the ramp and injured his shoulder. Maguire sought medical treatment in China but was mis-diagnosed. Soon thereafter, he repatriated to the U.S. in order to seek medical treatment for his injury. Maguire claims that he did not receive sufficient funds to cover his return to the U.S., the costs of maintenance and cure, and the full salary he was owed. Maguire initiated his lawsuit against HKI and Sanya for failure to pay seaman wages; breach of contract; failure to provide adequate maintenance and cure; Jones Act negligence; and unseaworthiness. HKI responded by moving to dismiss for lack of personal jurisdiction, improper venue, failure to state a claim upon which relief may be granted, and forum non conveniens. Because the court found that personal jurisdiction could not be asserted over HKI under either the Florida long-arm statute or Rule 4(k)(2), the court only addressed HKI's first proposed ground for dismissal. The court held that HKI's alleged conduct did not satisfy the requirements of Florida's long-arm statute, as Maguire's alleged injuries did not arise from any of HKI's business activities in Florida. Additionally, Maguire identified himself as a former Florida resident and did not claim to have been a Florida resident at the time he accepted the employment or sustained the injuries. HKI's contacts in the U.S. fall short of the minimum contacts required for due process. As with the Florida long-arm statute analysis, HKI's purchase of the vessel and contracting for repair and staffing services in the U.S. years prior to Maguire's injury in China was insufficient to meet the minimum contacts required under Rule 4(k)(2). The court found that HKI had provided sufficient unrebutted evidence that the exercise of jurisdiction over it would be improper under either Florida's long-arm statute or Rule 4(k)(2). Accordingly, HKI’s motion to dismiss was granted for lack of personal jurisdiction. (USDC SDFL, February 15, 2017) 2017 U.S. Dist. LEXIS 22371
FACT QUESTIONS PRECLUDE SUMMARY JUDGMENT AS TO BORROWED SERVANT
KNIGHT V. GULFMARK OFFSHORE, INC., ET AL.
Don Knight filed suit seeking damages under the Jones Act and general maritime law for alleged injuries he sustained while working aboard a vessel. Knight eventually amended his complaint naming Gulfmark Americas, Inc. as a defendant. Gulfmark moved for partial summary judgment seeking dismissal of Knight’s Jones Act claims on the basis that Gulfmark was not Knight’s employer. In response, Knight argued genuine issues of material fact still existed as to whether he was Gulfmark's borrowed employee. The court began its analysis by observing that the Jones Act confers upon a seaman the right to sue his employer for negligence resulting in his personal injury. The Jones Act is applicable only if an employment relationship exists. The borrowed employee doctrine is the functional rule that places the risk of a worker's injury on his actual rather than his nominal employer. Whether an injured plaintiff is a borrowed employee is a matter of law for the district court to decide, though some cases involve factual disputes that must be resolved by the fact-finder before the court can make its legal determination. In weighing the Ruiz factors, the court noted that it was undisputed that Knight was employed as a cook on board the vessel by Gulf Marine Staffing, Inc. Although Knight admitted he was employed by Gulf Marine, he alleged that he was also the "borrowed employee" of Gulfmark at the time of the accident. After considering the nine factors set forth in Ruiz, the court found questions of material fact were raised by conflicting affidavits and still existed as to whether Knight was Gulfmark's borrowed employee at the time he sustained his injuries. As a result, Gulfmark's partial motion for summary judgment was denied. (USDC EDLA, February 14, 2017) 2017 U.S. Dist. LEXIS 20587
ANOTHER REMOVAL ACTION BITES THE DUST
BUTLER V. ENSCO INTERCONTINENTAL GMBH ET AL.
Ronald Butler, a seaman, sued in Texas state court under the Jones Act, seeking damages for injuries arising from an incident with a fellow crewman on a drilling rig off the Angola coast. Butler sued ENSCO Incorporated, a Texas corporation, alleging that it employed him and owned and operated the drilling rig. He later added ENSCO Intercontinental GmbH and ENSCO Limited. The defendants removed to federal court, asserting that the in-state defendant was improperly joined or, alternatively, that foreign law, not the Jones Act, applied. Butler moved to remand, the defendants responded, and Butler replied. Using the analysis of Lauritzen, the court concluded that the factors pointed to several possible countries for the source of the controlling law, including the United States, Angola, the Marshall Islands, Switzerland, and the Cayman Islands. Although the question was a close one, discounting the factors of the law of the flag, the allegiance of the defendants, the place of the injury, and the place where the rig's day-to-day operations were controlled—factors favoring applying the law of the Marshall Islands, Switzerland, or the Cayman Islands—and giving more weight to Butler's citizenship and residence—factors favoring applying the United States law—and construing the governing law in Butler's favor, the balance would appear to weigh against applying the Jones Act. But because the question is a close one, a more conservative approach is to say that there could be a reasonable basis for predicting that Butler might establish liability under the Jones Act. Because the defendants were properly joined and the Jones Act claim was not removable, remand is required. The court granted Butler's motion to remand. (USDC SDTX, February 7, 2017) 2017 U.S. Dist. LEXIS 16663
COURT REMANDS UNTIMELY REMOVAL ACTION
PAEZ V. SPYROS MARINE, LLC
Julio Gonzalez Paez filed his §905(b) LHWCA complaint against Sypros Marine, LLC in state court, asserting a claim for negligence as a result of injuries he allegedly sustained while working as a longshoreman on defendant's container ship. Sypros removed the action to federal court, asserting the court had diversity jurisdiction. Paez moved to remand his case to state court and sought attorney fees and costs as well. It was undisputed that the amount in controversy in the action exceeded $75,000 (although this could not have been ascertained from the complaint) and that the parties were diverse. The only issue actually before the court was whether an email exchange between counsel or discovery responses triggered the thirty-day removal period. Sypros asserted that it could first ascertain that the case was removable when it received Paez’s discovery responses. Paez argued that Sypros was on notice that the action was removable based on the attorney's email exchange. The court agreed with Paez, noting the email exchange between counsel clearly established that Paez was seeking over $75,000 in damages. Accordingly, Sypros’s notice of removal, filed more than thirty days later, was not timely. Paez’s motion to remand and for attorney fees and costs was granted in part. The action was remanded to state court. However, the court found that Sypros had a reasonable basis to seek removal and, therefore, denied the request for attorney fees and costs. (USDC SDFL, February 8, 2017) 2017 U.S. Dist. LEXIS 17762
COURT FINDS PLAINTIFF AT FAULT FOR ALLISION
MARQUETTE TRANSPORTATION CO., LLC V. M/V CENTURY DREAM, ET. AL.
This case involved an allision between the M/V JOHN PAUL ECKSTEIN (JPE), a vessel owned and operated by Marquette Transportation Co, LLC, and AEP's barge fleet. Both the M/V CENTURY DREAM and the JPE were traveling downbound in the Mississippi River, when the CENTURY DREAM overtook the JPE. Around the time of the overtaking, the JPE became caught in an eddy near the left descending bank and allided with a barge fleet owned by AEP and docked on the left descending bank. This allision caused damage to the JPE's barges and cargo and to AEP's barge fleet. Marquette filed suit, arguing that the CENTURY DREAM improperly overtook the JPE, causing the allision. The CENTURY DREAM avers its overtaking was proper and the JPE was solely responsible for the allision. Following a bench trial and reviewing all the evidence, including the testimony of Captain Joseph A. Dragon, Jr., the captain of the JPE, the court concluded that the JPE was the privileged, or stand-on vessel with respect to the planned overtaking by the CENTURY DREAM. As the privileged vessel, it was incumbent upon JPE's captain to propose the manner and place of passing. As the privileged vessel, if JPE did not agree with any of the proposed overtaking agreements, Captain Dragon had the right and obligation to either deny the overtaking or to propose an overtaking which could be performed safely and which would allow him to maintain control over the JPE and its flotilla. The Court found that the CENTURY DREAM complied with Rule 13 and kept well out of the way of the JPE. The court also found that CENTURY DREAM and JPE entered into a one-whistle overtaking agreement, and that CENTURY DREAM complied with its obligation as the give-way or burden vessel. Further, the tone of all radio communications between Captain Dragon and the pilot on the CENTURY DREAM was cordial, relaxed, and, at times, joking. There was never any indication that either the captain or pilot were worried or sensed anything was awry. The JPE, as the privileged vessel, had the right and duty to orchestrate a safe overtaking or, if a safe overtaking was impossible, to inform the overtaking vessel that no overtaking may occur. The JPE, through Captain Bowman, did not do so. This failure was a breach of duty which caused the allision. On the basis of all the evidence before it, the court found that Captain Dragon failed to properly account for a known eddy on the left descending bank, and failed to take appropriate steps to control the flotilla so as to avoid the allision. As such, the court found that the proximate cause of the JPE's allision was the navigational decisions of JPE, not any negligence on the part of CENTURY DREAM. (USDC EDLA, February 21, 2017) 2017 U.S. Dist. LEXIS 23583
COURT ALLOWS DISMISSAL OF THIRD-PARTY CLAIMS
BONIN V. BILFINGER SALAMIS, INC.
Barrett Bonin filed suit against Bilfinger Salamis, Inc. after he tripped over a rope that Bilfinger employees allegedly left in a walkway. Bonin was employed by Corrpro Companies, Inc. and working on a platform owned by Murphy Exploration & Production Co. Bilfinger filed a third-party complaint against Murphy, alleging that Murphy agreed to indemnify Bilfinger for any and all liability or damages arising out of any injury to Murphy employees or contractors. Similarly, Bilfinger filed a third-party complaint against Corrpro, alleging that Corrpro and Murphy entered into an agreement whereby Corrpro agreed to indemnify Murphy and its contractors for any and all liability or damages arising out of any injury to Murphy employees or contractors. Bilfinger moved to sever the third-party indemnity claims against both Murphy and Corrpro and the court granted the motion. Bilfinger then sought to dismiss its pending claims against Murphy and Corrpro, both of whom opposed any such dismissal. Bilfinger claimed that it was entitled, as a matter of law, to dismiss its claims against Murphy and Corrpro under Federal Rule of Civil Procedure 41(a)(1) and (c). The court found that, despite any agreement that the parties may have had to the contrary, and despite any truth to the assertion that Bilfinger is now forum shopping, the Federal Rules permit Bilfinger to dismiss his claims against Corrpro and Murphy without a court order. Therefore, the third-party complaints by Bilfinger against Corrpro and Murphy were dismissed without prejudice. (USDC EDLA, February 7, 2017) 2017 U.S. Dist. LEXIS 16714
Quotes of the Month . . . “The world is in greater peril from those who tolerate or encourage evil than from those who actually commit it." --Albert Einstein
“The person who is waiting for something to turn up might start with their shirt sleeves."-- Garth Henrichs
“The day soldiers stop bringing you their problems is the day you have stopped leading them. They have either lost confidence that you can help them or concluded that you do not care. Either case is a failure of leadership.”-- Colin Powell
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
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