December 2017
Notes From Your Updater: Representative Nadler (D-NY) introduced the Clean Ports Act of 2017 (H.R. 4147) to amend title 49, United States Code, to provide certain port authorities, and for other purposes.
On November 13, 2017 Fane Lozman had certiorari granted by the U.S. Supreme Court for the second time. In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, Lozman v. City of Riviera Beach, Florida, Docket No. 17-21, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a council member directed him to do so. The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.
In a pair of related unpublished decisions, the US Court of Appeals for the District of Columbia Circuit denied the petitions of the International Longshore & Warehouse Union (ILWU) and its Portland, Oregon local seeking review of decisions of the National Labor Relations Board (NLRB). The NLRB had found that the petitioners had committed violations of federal labor law by engaging in deliberate work stoppages and slowdowns, making false safety claims, and engaging in coercive conduct against a Portland terminal operator and its customers. The court granted the NLRB's cross-application for enforcement. The opinions may be reviewed here and here.
APPELLATE COURT HOLDS BRB ERRED IN FINDING APPEAL UNTIMELY
SHAH V. WORLDWIDE LANGUAGE RESOURCES, INC., ET AL.
Shahwali Shah allegedly sustained injuries as a result of a helicopter crash which occurred while he was working for employer as an interpreter in Afghanistan. The parties stipulated to an award of benefits for those injuries. Shah returned to Afghanistan for a second tour of duty with employer. Shortly after the end of that tour of duty, Shah alleged he sustained cumulative traumatic injuries to his left ankle, left leg, right knee, back and neck, as well as post-traumatic stress disorder, due to his continued work in Afghanistan for employer. The administrative law judge awarded claimant benefits under the Defense Base Act Extension of the LHWCA. Shah’s counsel sought, and was awarded, an attorney’s fee for work performed before both the district director and the administrative law judge. Counsel, dissatisfied with the hourly rates awarded by the administrative law judge submitted a motion for reconsideration, which was summarily denied by the ALJ. Counsel appealed the ALJ’s fee award and the fee award of the district director. The BRB affirmed both fee orders. The first attorney fee order, issued by the ALJ awarded $48,719.00 in attorney fees and $17,586.24 in costs. The second attorney fee order was issued by the District Director and awarded $8,480.50 in attorney fees. The Board's decision and order dismissed as untimely Shah's appeal from the underlying ALJ's attorney fee order and affirmed the District Director's attorney fee/compensation order. On further appeal, counsel argued that Board erred in dismissing the appeal from the underlying ALJ's attorney fee order as untimely. The appellate court agreed, finding the time for Shah to appeal was tolled until the date the ALJ entertained or considered and ultimately denied Shah's motion for reconsideration on its merits, rendering Shah's notice of appeal timely. Therefore, the appellate court granted Shah's petition and reversed and remanded the Board's dismissal of Shah's notice of appeal of the ALJ's attorney fee order for consideration on its merits. Additionally, because the Board erred in dismissing Shah's notice of appeal of the ALJ's attorney fee order, the appellate court remanded the Board's decision on the District Director's compensation order for findings that shall consider both the ALJ's findings and the District Director's findings, including the hourly rate determinations. (9thCir, November 22, 2017, UNPUBLISHED) 2017 U.S. App. LEXIS 23719
LONGSHOREMAN TRIES TO DO AN END RUN AROUND THE LHWCA
SMITH V. PATE STEVEDORE COMPANY, INC., ET AL.
Theodore Smith initiated an action in federal district court, seeking damages under the LHWCA, alleging the defendants' negligence led to a work-related injury. He attempted to avoid the Longshore Act's grant of tort immunity to employers by claiming that his employer, Pate Stevedore Company, Inc., was a vessel owner and his action was a section 905(b) third-party lawsuit. The court advised Smith that he could not state a claim for relief because he had not alleged facts suggesting Pate violated any duty in its capacity as a vessel owner and section 905(b) expressly provides that no cause of action "shall be permitted" when the injury is caused "by the negligence of persons engaged in providing stevedoring. Smith then filed an amended complaint, named the same four defendants, Pate, American Interstate Insurance Company, Dr. Stephen Slobodian; and West Florida Hospital. The amended complaint alleged that smith was involved in an accident while unloading a vessel. When Pate’s crane operator raised the crane, it lifted Smith’s right leg off the ground and pinned the leg between 4 to 5 tons of lumber for 4 minutes. Smith alleged the accident permanently injured his back. Smith also criticized the medical attention he received after the accident. As relief, Smith sought punitive damages from each defendant. After reviewing the amended complaint, the court advised Smith that the court appeared to lack subject-matter jurisdiction over the action because the complaint did not allege diversity jurisdiction and the allegations did not implicate a substantial federal question. The court, therefore, ordered Smith to show cause why this case should not be dismissed for lack of subject-matter jurisdiction. Rather than respond to the court's show cause order, Smith submitted what appears to be a second amended complaint, which did not address the court's concerns about its subject-matter jurisdiction, but indicated Smith was suing each defendant for $7,000,000 for fraud. After reviewing the second amended complaint, the court concluded the case should be dismissed, as Smith’s entitlement to workers' compensation benefits must be resolved through the Department of Labor's administrative process. Likewise, Smith could not raise state-law claims based on the defendants' handling of his workers' compensation claim, as they would be preempted by the Longshore Act. Smith’s complaint was dismissed. (USDC NDFL, October 27, 2017) 2017 U.S. Dist. LEXIS 195130
DISPUTED ISSUES OF MATERIAL FACT ON §905(B) CLAIM
VELASQUEZ V. CRESCENT TOWING & SALVAGE CO., INC.
Michael Velasquez, an employee of Jonny White's C&W Air Repair, Inc., was performing maintenance work on a towing vessel owned by Crescent Towing & Salvage Co., Inc., rebuilding the compressors in the lower engine room. Velasquez alleged that he sustained serious and disabling injuries when he slipped and fell while he was traversing the stairs leading from the upper engine room to the lower engine room. Velasquez further alleged that the fall was caused by a slippery substance, likely oil, left on the stairs by Crescent Towing's employees, and an inadequate non-skid surface. Velasquez filed this suit against Crescent Towing alleging that its negligence and the unseaworthiness of the caused the accident. Crescent Towing moved for summary judgment arguing that Velasquez could not prevail on his negligence claim under §905(b) of the LHWCA because he could not prove that Crescent Towing breached one of the duties enumerated in Scindia. Crescent Towing also argued that a person covered by the LHWCA is precluded from making an unseaworthiness claim against the vessel. Velasquez argued that Crescent Towing breached the active control duty outlined in Scindia. Velasquez contended that there were genuine issues of material fact regarding whether Crescent Towing maintained active control of the area in which C&W's employees were working and that it failed to act reasonably in either cleaning up the spilled slippery substance or warning C&W's employees about it. Crescent Towing argued that deposition testimony demonstrated that it did not breach the active control duty. Velasquez testified that he worked for at least two hours and went up and down the engine room stairs at least ten times before his accident. Velasquez did not see any oil on the stairs and he did not report any oil on the stairs to the vessels' crew or his boss before his fall. At the time of the fall, Velasquez was traversing the stairs facing forward, carrying six steel plates in one hand and using the other hand to hold the handrail. Velasquez testified that he saw oil on the stairs after his fall, but he did not know where it came from. Velasquez argues that there are disputed issues of material fact that preclude summary judgment as to the active control duty, citing other deposition testimony from crew members. The court concluded that the testimony cited by Velasquez demonstrated that there were disputed issues of material fact regarding whether the vessel's crew remained in active control of C&W's worksite. Although nobody else testified that they saw oil on the stairs before the accident, Velasquez testified that he observed the oil on the stairs after his fall and it looked as if someone had stepped in it. Crescent Towing also moved for summary judgment on Velasquez's unseaworthiness claim. Velasquez did not oppose this part of Crescent Towing's motion for summary judgment. Therefore, Crescent Towing's motion for summary judgment is GRANTED as to Velasquez's unseaworthiness claim, and that claim was dismissed. Crescent Towing's motion for summary judgment was denied as to Velasquez's claim brought under §905(b). (USDC EDLA November, 3, 2017) 2017 U.S. Dist. LEXIS 182579
OCSLA §905(B) CLAIM FAILS
CALLAHAN V. GULF LOGISTICS LLC ET AL.
Christopher Callahan was employed as a field service technician by Cameron International Corporation, and was performing duties within the course and scope of his employment. Callahan was aboard a crew boat, owned by Gulf Logistics LLC and crewed by employees of Gulf Logistics Operating, Inc., at the time of his alleged injury. While awaiting a personnel basket transfer from the crew boat, Callahan, without being instructed to do so and before the personnel basket was even secured on the crew boat in preparation for his transfer, decided to lift his 35-pound bag in an effort to put it on his shoulder. This movement coincided with a sharp roll from the crew boat, caused Callahan to be thrust forward and to sustain an alleged back injury. Callahan brought a lawsuit, pursuant to §905(b) of the LHWCA, made applicable to Callahan by the Outer Continental Shelf Lands Act (OCSLA). To prevail on his maritime tort claim, Callahan was required to prove duty, breach, causation, and damages. All parties agreed that Gulf Logistics owed Callahan a duty of reasonable care under the circumstances. This included a "duty to warn passengers of reasonably anticipated dangers, though not openly obvious ones. Following a bench trial on the liability issue, Gulf Logistics LLC, Gulf Logistics Operating, Inc., C & G Boats, Inc., and Houston Casualty Company argued in favor of a judgment on partial findings. The court pointed out that Callahan was also required to exercise reasonable care and prudence, and since the vessel owner is not an absolute insurer of the passenger's safety, if the passenger is injured absent vessel owner negligence, no recovery is mandated. The court pointed out that Callahan was an experienced service technician who had completed hundreds of transfers from crew boats to other structures via personnel baskets. At trial, Callahan confirmed that he was aware of the risks involved in making the personnel basket transfer and decided to accept same, without having any discussions with anyone on board regarding the safety of making the transfer. At all times relevant, Callahan knew that he had "stop work" authority, which he had exercised in the past without adverse consequences, but declined to exercise that authority on the date of his alleged injury. The court found that the conditions that existed on the night of Callahan’s injury, were neither unusually unsafe nor particularly hazardous. The court found no fault on anyone's part and therefore no liability on behalf of any defendant. Upon due consideration of the facts and evidence presented at trial, and the arguments of the parties, the court found that Callahan had failed to establish liability by a preponderance of the evidence and granted judgment in favor of all defendants. (USDC WDLA, November 15, 2017) 2017 U.S. Dist. LEXIS 189329
COURT DECLINES TO EXERCISE JURISDICTION OVER LHWCA CLAIM
WARNER V. CONTRACT CLAIMS SERVICES, INC., ET AL.
Biljana Warner, employee of the Marine Corps Community Service, an entity of the United States Department of Defense, filed this action pursuant to the LHWCA, as extended by the Non-appropriated Fund Instrumentalities Act, seeking enforcement of an order by an administrative law judge granting her compensation for an injury sustained at her workplace. Warner also sought compensation for pain management, attorney's fees, and late payment penalties. Contract Claim Services, Inc. (CCSI) moved to dismiss for failure to state a claim or, in the alternative, motion for summary judgment arguing in part that the court did not have jurisdiction over Warner’s claims. The United States also filed a motion to dismiss for failure to state a claim and for lack of jurisdiction, also arguing in part that the court lacked jurisdiction over Warner’s claims. In support of the motion, United States filed CCSI's appeal to the BRB, and Warner’s appeal to the BRB, along with the BRB's letters of acknowledgment of both appeals. The court observed that the thrust of defendants' motions was that the court did not have subject matter jurisdiction and on this basis the complaint must be dismissed. Under Rule 12(b)(1), the plaintiff bears the burden of showing that subject matter jurisdiction is appropriate. Warner’s primary claim against defendants was brought pursuant to §921(d) under the LHWCA, requesting enforcement of the ALJ's order granting Warner compensation related to work injuries sustained at plaintiff's place of employment. Defendants argued that the ALJ order at issue was not final and therefore the court lacked subject matter jurisdiction to grant the relief sought. The statutory scheme provides for limited jurisdiction to federal district courts. After an order "has become final," the LHWCA allows for judicial enforcement, not review, of the order in "the Federal district court for the judicial district in which the injury occurred." The record before the court reflected that there were multiple appeals pending before the BRB regarding the ALJ's orders. Pursuant to 33 U.S.C. § 921(d), the court has limited jurisdiction only over an order that "has become final" and only to the extent of enforcing that order. Pursuant to the terms of the LHWCA, the court agreed that it lacked jurisdiction over Warner’s request for enforcement of an order that is not yet final. Similarly, the court did not have jurisdiction to consider Warner’s additional claims seeking enforcement of attorney's fees and late payment penalties as provided under the LHWCA pursuant to 33 U.S.C. §928(a) and §914(f). Even if the court did have jurisdiction, by its explicit terms, §921(d) only applies to the enforcement of final compensation orders, not the modification of such orders to provide for additional relief such as for pain management. Because the court concluded it lacked subject matter jurisdiction over Warner’s claims, Warner’s complaint was dismissed without prejudice. (USDC EDNC, November 3, 2017) 2017 U.S. Dist. LEXIS 182567
ISSUES OF FACT AND CREDIBILITY PRECLUDE SUMMARY JUDGMENT
LEBRUN V. BAKER HUGHES INC ET AL.
Jonathan Lebrun, worked for Baker Hughes Oilfield Operations, Inc. and was assigned to work as a sample catcher or "mudlogger" aboard Transocean's drillship. Lebrun alleged he injured his lower back by having to repeatedly pry open a vacuum sealed, 1/4 inch steel blast-proof shaker house door during his 12-hour shifts. Lebrun was terminated by Baker Hughes due to a company-wide reduction in force. Lebrun filed his seaman’s suit alleging Jones Act negligence. The court found Lebrun was not a Jones Act seaman. In his second amended complaint, Lebrun alleged a claim for unseaworthiness as a Sieracki seaman as well as for negligence and gross negligence under the general maritime law; alternatively, Lebrun alleged a cause of action under the LHWCA and the general maritime law. The court denied Lebrun’s motion for summary judgment for Sieracki seaman status. Thus, Lebrun only retained a negligence claim against Transocean, the owner of the drillship, and moved for summary judgment on this remaining claim asking the court to find that there was no genuine dispute as to any material fact that Transocean's negligence substantially caused or contributed to his lumbar injuries and resulting surgery. The court agreed that because issues of fact and credibility remain, the issue of medical causation before the court was not ripe for summary judgment and must be resolved by a trier of fact. Lebrun’s motion for summary judgment was denied. (USDC WDLA, November 1, 2017) 2017 U.S. Dist. LEXIS 181181
COURT REJECTS BERTRANDEXCEPTION FOR SEAMAN STATUS (CONT.)
LEBRUN V. BAKER HUGHES INC ET AL.
Jonathan Lebrun was employed by Baker Hughes Oilfield Operations, Inc. as a field service specialist, whose job duties were to collect mud samples from shale shakers and deliver the mud samples to on-site data engineers and geologists for analysis. Baker Hughes assigned Lebrun to work a 28 day rotation aboard a drillship, owned and operated by Transocean Offshore Deepwater Drilling, Inc. Baker Hughes notified Lebrun he would spend at least two work shifts on the drillship, where he would also sleep and eat. However, after completion of his first rotation, Lebrun was terminated by Baker Hughes , due to a company-wide reduction in force necessitated by the severe downturn in the oil & gas exploration industry. Lebrun brought this suit to recover for back injuries he allegedly incurred during his assignment to the drillship. Lebrun asserted claims under the Jones Act and general maritime law for unseaworthiness and maintenance and cure. Both parties filed cross motions for summary judgment of the sole issue of whether Lebrun was a seaman for purposes of the Jones Act. The court previously found that Lebrun was not a Jones Act seaman as he did not demonstrate a connection to a vessel in navigation (or to an identifiable group of such vessels) that was substantial in terms of both its duration and its nature [see July 2016 Longshore Update]. In his second amended complaint, Lebrun alleged a claim for unseaworthiness as a Sieracki seaman as well as for negligence and gross negligence under the general maritime law. Alternatively, Lebrun alleged an action under the LHWCA and the general maritime law. Lebrun then moved for summary judgment on his claims for Sierackiseaman status, which defendants opposed, arguing that any such injury alleged by Lebrun would be covered under the LHWCA. The court noted that, in order to qualify as a Sieracki seaman, a plaintiff must show that he is doing a traditional seaman's work and incurring a seaman's hazard. Lebrun’s work as a sampler was not traditional seaman's work such that he incurred a seaman's hazard. Rather than performing traditional navigational chores and/or contributing to the function, mission, or maintenance of the vessel, Lebrun performed oilfield services that were developed on land and transferred to the sea when oil and gas was discovered beneath the sea floor. Based on the court's determination that Lebrun did not meet the standard required to be classified as a Sieracki seaman as well as the fact that the drillship was not located in foreign waters during the period Lebrun worked on board, the court denied Lebrun’s motion for summary judgment [see October 2017 Longshore Update]. Thus, as a covered LHWCA employee, Lebrun retained a negligence claim against Transocean, the operator of the drillship. Transocean moved for dismissal of Lebrun’s negligence action with prejudice, at Lebrun’s cost, contending that it had no "turnover duty" to Lebrun related to the condition of the shaker shack door that Lebrun alleged caused his back injury because the door was an "open and obvious" condition which is not encompassed in the "turnover duty." During the hearing, for the first time, counsel for Lebrun argued there was no issue of "turnover duty' because Lebrun had no control over any aspect of the drillship. Rather, Lebrun argued that the real issue in this case is whether or not Transocean breached the "active control" duty by maintaining control over the venting system and thereby control of the vacuum door through which Lebrun had to enter and exit the shaker shack. The court considered all of the evidence and the parties' memoranda and applicable jurisprudence, in particular Lebrun’s concession that the "turnover duty" did not apply in this case, and found there were no genuine issues in dispute that Transocean did not breach its turnover duty. But even assuming arguendo that the duty did apply, the court found it was undisputed that the condition of the shaker shack door was open and obvious and the "no alternative" exception does not apply. The court granted Transocean's motion as to the "turnover duty" but refused to dismiss the case in light of Lebrun’s new assertion that Transocean breached the "active control" duty. (USDC WDLA, November 14, 2017) 2017 U.S. Dist. LEXIS 187821
NO RIGHT TO JURY IN FRCP 9(H) ACTION BUT LHWCA ISSUE IS PREMATURE
ABADIE V. MADERE AND SONS MARINE SERVICES, LLC, ET AL.
Joseph and Amy Abadie (Abadie) moved for a judgment on the pleadings, seeking an order striking the jury demand made by defendants, Brammer Engineering, Inc. and Zurich American Insurance Company. Abadie also sought an order striking Brammer and Zurich's affirmative defense of workers' compensation tort immunity. Abadie was employed by Madere and Sons Marine Services, LLC and/or Deep South Oilfield Construction, LLC, assigned to work as the captain of a crew boat in navigation owned and operated by Madere and Deep South. He was allegedly instructed to sail to a production platform owned and operated by Brammer. When the vessel arrived at the production platform, Abadie was informed by the platform well site supervisor that the vessel had to take a tote tank containing liquid oilfield waste and weighting approximately 4,600 pounds from the platform to shore. Joseph advised the supervisor that the tote take was too big and heavy to be safely offloaded from the production platform onto the crew boat, but the supervisor insisted on using the crew boat to do the job. During the loading process, the tote tank swung toward the vessel's bow, striking Abadie and pinning him against the bulkhead between the stern deck and the wheelhouse. Abadie alleged that he sustained multiple injuries as a result of the accident, including bruises and abrasions and injuries to his spine, shoulder and connective joints, tissues and nerves. Abadie filed suit against Madere, Deep South, Brammer, the supervisor and Zurich seeking damages for the injuries he allegedly sustained as a result of the accident, alleging that Madere and Deep South were liable for negligence under the Jones Act and damages under the general maritime law. Abadie also alleged that Brammer and the supervisor were liable for negligence under the general maritime law. In the alternative, Abadie alleged that he was a maritime employee covered by the LHWCA. Further, Abadie alleged that Brammer and Gautreaux were liable for his wife’s loss of consortium and society. Abadie filed an amended complaint alleging that his claims were maritime claims that arose under FRCP 9(h). Brammer and Zurich filed an answer demanding a jury trial. Brammer and Zurich also raise an affirmative defense that Abadie’s exclusive remedy against them was in workers' compensation. Abadie argued that he was entitled to a bench trial because they pleaded that their claims arise under this court's admiralty jurisdiction pursuant to Rule 9(h). He also argued that he was not employed by Brammer, thus his remedies against Brammer and its insurer, Zurich, were not limited to workers' compensation. The court pointed out that if a claim is pleaded under diversity jurisdiction, the rules of civil procedure would apply, and the parties will be guaranteed, under the Seventh Amendment, a right to have the claim tried by a jury. However, if the claim is pleaded under admiralty jurisdiction, the plaintiff will invoke those historical procedures traditionally attached to actions in admiralty. One of the historical procedures unique to admiralty is that a suit in admiralty does not carry with it the right to a jury trial. Therefore, the court concluded that Brammer and Zurich did not have a constitutionally or statutorily based right to a jury trial. Brammer and Zurich argued that it was premature to strike their workers’ compensation defense. contending that Abadie was a borrowed employee of Brammer. The court agreed, noting that discovery in this case was ongoing and there were no facts before the court that would allow it to weigh the factors relevant to the borrowed servant test. Abdie’s motion for judgment on the pleadings was granted as to striking the jury demand made by Brammer and Zurich. But the motion was denied as to striking the workers' compensation affirmative defense raised by Brammer and Zurich. (USDC EDLA, November 13, 2017) 2017 U.S. Dist. LEXIS 187075
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #284. 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 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 FINDS THAT OPA 90 EXEMPTIONS ARE NOT APPLICABLE
UNITED STATES OF AMERICA V. AMERICAN COMMERCIAL LINES, LLC
This case involved a spill of nearly 300,000 gallons of oil when a tugboat veered across the Mississippi river, putting the oil-filled barge it towed into the path of an ocean-going tanker. The tugboat was owned by American Commercial Lines (ACL) but operated by DRD Towing Company pursuant to a contractual agreement between the companies. As the statutorily-defined responsible party under the Oil Pollution Act (OPA), ACL incurred approximately $70 million in removal costs and damages. The United States also incurred approximately $20 million in removal costs and damages. The United States initiated this action, seeking a declaration that ACL was liable for all removal costs and damages resulting from the spill and to recover the costs that it incurred. The United States moved for partial summary judgment on its claims that ACL was not entitled to any defenses to liability under OPA. The district court granted that motion, and later entered final judgment ordering ACL to pay the United States $20 million. ACL appealed, ACL contending that it was entitled to a complete defense to liability under 33 U.S.C. § 2703(a)(3) on the ground that the conduct of DRD, a third party, caused the spill. ACL sought to avail itself of a complete defense under the “third-party defense” of section 2704(c)(1) of OPA, or in the alternative, limit its liability proportionate to the tonnage of the tug pursuant to section 2703(a). The government responded that the third-party defense was not available because DRD's conduct occurred in connection with a contractual relationship with ACL. The appellate court affirmed the decision in favor of the U.S. government seeking reimbursement for $20 million in spill response costs from the party responsible for the spill. The Fifth Circuit rejected ACL’s appeal arguments as inconsistent with both the ordinary meaning and the purpose of OPA. ACL argued that DRD was a third-party whose acts or omissions caused the incident and that those actions were not taken ‘in connection with’ the contractual relationship between the parties as DRD had failed to comply with all laws and regulations. The Court held that the plain language of OPA refers to “any” contractual relationship with the responsible party, broadly encompassing all acts logically connected and pursuant to that relationship. In reaching the decision, the appellate court adopted a “but for” test: the third-party defense should not be available where a spill is caused by third-party acts or omissions that would not have occurred but for the contractual relationship between the third party and the responsible party. In the alternative, ACL asserted that the specific acts or omissions that caused the spill must have been authorized by the contract in order to fall within an exception from limited liability. The Fifth Circuit stated that the “pursuant to” language of the limitation on liability section of OPA 90 is satisfied if the person who commits gross negligence, willful misconduct, or applicable regulatory violation does so in the course of carrying out the terms of the contractual relationship. The judgment of the district court was affirmed. (5thCir, November 7, 2017) 2017 U.S. App. LEXIS 22260
MARITIME ATTACHMENT DENIED
SCL BASILISK AG V. AGRIBUSINESS UNITED SAVANNAH LOGISTICS LLC, ET AL.
Invoking the district court's maritime jurisdiction, SCL Basilisk AG and Thorco Shipping A/S brought this action for an order requiring the posting of security by Agribusiness United Savannah Logistics LLC, Agribusiness United Inc., Agribusiness United DMCC, Inc., and Sonada Agro Limited (UK) LL, in aid of a pending international arbitration in London, United Kingdom. After a hearing, the district court denied relief, and the plaintiffs timely appealed. The appellate court affirmed the district court's judgment, holding the relief sought by the plaintiffs was not authorized by Rule B of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, Georgia law, or principles of maritime law. The court ruled that an attachment under the Supplemental Rules for Admiralty or Maritime Claims may not be used purely for the purpose of obtaining security except as an adjunct to obtaining jurisdiction. Georgia Code Annotated § 9-9-30 did not authorize courts to create interim measures of protection but instead guaranteed that a party's resort to a court for interim measures could not be interpreted as a waiver of the right to arbitrate. The district court could not grant relief under its inherent admiralty powers because that power could only be exercised consistently with the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions, and an order of attachment solely for the purpose of obtaining security would have been contrary to Rule B. The judgment of the district court was affirmed. (11th Cir, November 14, 2017) 2017 U.S. App. LEXIS 22801
SUBCONTRACTOR SUPPLYING VESSEL BUNKERS DOESN’T HAVE MARITIME LIEN
BARCLIFF, LLC v. M/V DEEP BLUE, ET AL.
The M/V Deep Blue is a pipe-laying vessel that required a routine refueling. Its owner contacted a global marine fuel supplier, who agreed to sell the fuel and deliver it to the Deep Blue. Rather than fulfill the order out of its own stocks, the supplier purchased the fuel from an affiliate. The affiliate, in turn, subcontracted with Barcliff, LLC, d/b/a Radcliff/Economy Marine Services to supply and deliver the fuel. Radcliff rendered performance and fueled the Deep Blue. This otherwise ordinary transaction ultimately became a problem for Radcliff because, before any money changed hands, the global marine fuel conglomerate collapsed into bankruptcy. Radcliff found itself in the position of having supplied several hundred metric tons of fuel on the credit of a now-insolvent counter-party. Radcliff asserted a maritime lien on the Deep Blue in a bid to recover directly from the ship, giving rise to this litigation. After a bench trial, the district court determined Radcliff did not have a lien on the Deep Blue. Instead, a lien had arisen in favor of the global fuel supplier, O.W. UK, and was duly assigned to ING Bank N.V., an intervenor in the suit. The court entered judgment against Radcliff and in favor of ING and directed that the full amount Technip paid into its registry be disbursed to ING. Radcliff appealed, arguing that it had a valid lien because it had supplied the ship on the order of the owner. The appellate court found that O.W. UK actually "provide necessaries" to the Deep Blue, even though it subcontracted the job to O.W. USA, and in turn to Radcliff, causing the lien to arise in O.W. UK's favor, which O.W. UK then assigned to ING. Therefore, the district court was correct that ING had the lien on the Deep Blue. As a general rule, a subcontractor does not receive a lien. Under the general rule as stated, Radcliff did not have a maritime lien on the Deep Blue. Radcliff acted on the order of O.W. USA, not Technip. As a result, the district court did not err in determining Radcliff did not have a lien on the Deep Blue. Nor did the district court err in determining that O.W. UK had a lien on the Deep Blue and that O.W. UK assigned it to ING. The judgment of the district court was affirmed in all respects. (11thCir, November 30, 2017) 2017 U.S. App. LEXIS 24187
MOORED RIVERBOAT CASINO IS NOT A VESSEL IN NAVIGATION
BENOIT V. ST. CHARLES GAMING COMPANY, INC.
Carl Benoit went to work as a deckhand for St. Charles Gaming Co., Inc. d/b/a Isle of Capri Casino at the Grand Palais, a riverboat casino, moored in Lake Charles. He was allegedly injured when a coworker fell from a ladder onto him and began receiving Louisiana workers' compensation benefits. Mr. Benoit and his wife sued St. Charles, alleging that the Grand Palais was a vessel under general maritime law, that he was a seaman and member of the Grand Palais's crew under the Jones Act, that the Grand Palais was unseaworthy under general maritime law; and that St. Charles owed him maintenance and cure, attorney fees, and damages, as result of the injuries he suffered in his fall. The Grand Palais was built as a riverboat casino in conformity with the requirements of Louisiana law which authorize gaming activities to be conducted on riverboat casinos that sail on designated waterways. St. Charles moored the Grand Palais at its current location in Westlake by nylon mooring lines and steel wire cables, pursuant to La.R.S. 27:65(B)(1)(c) which allows riverboat casinos to conduct gaming activities while docked if the owner obtained the required license. The Grand Palais had not moved since March 24, 2001. Necessary services for the Grand Palais' operation as a casino are provided via shore-side utility lines, which supplied electricity, water, telephone service, sewage, cable television, and internet services that have not been disconnected since 2001. Additionally, the casino computer systems, including the slot machines, for the Grand Palais' gaming activities are now located on land. Guests enter the Grand Palais from shore via a steel structure incorporated into the interior of the land-based Isle of Capri Pavilion. St. Charles moved for summary judgment, seeking dismissal of the Benoits' claims against it on the basis that the Grand Palais was not a vessel under general maritime law; therefore, Benoit is not a seaman. Benoit filed a cross motion for summary judgment on the same issues, asserting that the Grand Palais is a vessel and that Benoit is a seaman. After a hearing, the trial court granted summary judgment in favor of Benoit, finding that the Grand Palais is a vessel as defined by general maritime law and that Benoit was, therefore, a Jones Act seaman. St. Charles appealed, arguing that the trial court erred in ruling that the Grand Palais Casino was a vessel within the meaning of the general maritime law. The appellate court noted that Grand Palais' primary purpose was dockside gambling. For more than sixteen years, it had not engaged in any maritime activity and has been moored at the same location with all operations required for its gaming activities operated via land-based services. It was possible the Grand Palais could be returned to service as a vessel; however, the evidence established that for more than sixteen years, it has been indefinitely moored to provide for and maintain its primary purpose of riverboat gaming. Thus, although the Grand Palais was originally designed to transport people over water, the appellate court found that as a result of the changes to its physical characteristics, its purpose, and its actual function over the past sixteen years, it was no longer a vessel. Importantly, due to these changes, Benoit had not been subjected to "the special hazards and disadvantages" the Jones Act was enacted to remedy. To qualify as a Jones Act seaman, Benoit must prove that he worked on a vessel. The appellate court pointed out that its determination that the Grand Palais was not a vessel precluded proof of this requirement. Notwithstanding a strong dissent, the appellate court reversed the judgment of the trial court and granted summary judgment in favor of St. Charles, dismissing Benoit's claims against it. (La. App. 3rd Cir., November 8, 2017) 2017 La. App. LEXIS 2049
PARENT’S MULTIPLE CAUSES OF ACTION IN DEATH CASE DISMISSED (CONT.)
IN RE: MAGNOLIA FLEET
This limitation action arose out of a vessel capsizing, allegedly causing the death of James D. Swafford. Magnolia Fleet, LLC, as owner, and River Construction, Inc., as operator, of the vessel filed a Complaint for Exoneration or Limitation of Liability. Petitioners moved to dismiss all claims by Carl Swafford, the decedent's father. Swafford brought claims for loss of future earnings, mental and emotional pain and suffering, loss of consortium, loss of love and affection, punitive damages, and pecuniary damages. Petitioners first sought dismissal of Swafford's claim for survival damages, since under both the Jones Act and general maritime law, only the personal representative of a decedent's estate has standing to sue for survival damages. It was undisputed that Swafford was not the representative of the decedent's estate. He therefore did not have standing to recover survival damages, and those claims were dismissed. Petitioners sought dismissal of Swafford's claim for wrongful death damages, arguing it was well settled that a parent of a Jones Act seaman killed in service of a vessel can only recover wrongful death damages if the seaman is not survived by a child or spouse. The court agreed, noting the decedent was survived by a child. Accordingly, Swafford was not entitled to wrongful death damages under the Jones Act, and those claims were dismissed. The court also dismissed Swafford's claims for non-pecuniary damages, noting that damages under the Jones Act and general maritime law are limited to pecuniary losses. Petitioners argued that Swafford could not prove his claim for pecuniary damages, because Swafford did not receive any support or household services from his son prior to his death. Swafford failed to prove otherwise, so the court held petitioners were entitled to summary judgment on Swafford's claim for pecuniary damages. Finally, the court dismissed Swafford's claim for punitive damages for petitioners' failure to pay maintenance and cure, since Swafford was not a seaman and not entitled to maintenance and cure benefits. The claims of Carl Swafford were dismissed with prejudice [see November 2017 Longshore Update]. Carl Swafford then filed a motion for reconsideration, arguing that the court's dismissal of his claim for pecuniary damages was erroneous and manifestly unjust. In doing so, Swafford submitted additional evidence not previously before the court, which he claimed creates a material issue of fact as to his entitlement to pecuniary damages. In its initial ruling, the court noted that petitioners submitted evidence showing that Swafford did not receive any support or household services from his son prior to his death. Swafford failed to prove otherwise. In support of his motion, Swafford attached only an unsworn, unauthenticated, hearsay document entitled "Proof of Loses" in which he lists, without evidentiary support, the monthly expenses that he alleged the decedent paid prior to his death. The court held that such self-serving material constituted inadmissible evidence. Accordingly, the court concluded that Swafford had again failed to create a material issue of fact regarding his entitlement to pecuniary damages. Th motion for reconsideration was denied. (USDC EDLA, November 17, 2017) 2017 U.S. Dist. LEXIS 190223
COURT DENIES SECOND BITE AT THE APPLE ON MAINTENANCE & CURE ISSUE
ARMSTRONG V. OFFSHORE SPECIALTY FABRICATORS, ET AL.
Charles Armstrong III alleged that he injured his neck, shoulder, and wrist while employed by Offshore Specialty Fabricators as a crewmember aboard their drill boat. Armstrong brought claims for unseaworthiness, Jones Act negligence, maintenance and cure, and spoliation of evidence. The court scheduled a hearing on Armstrong’s maintenance and cure claim. Prior to the hearing, Offshore Specialty agreed to pay cure to Armstrong for his wrist injury and maintenance in the amount of $30 per day. Armstrong sought a finding that he was also entitled to cure for his shoulder and neck injuries, damages for Offshore Specialty’s arbitrary and capricious failure to pay, and an increase in maintenance pay. The court found that Armstrong did not sustain a neck or shoulder injury aboard the vessel and was therefore not entitled to any additional maintenance and cure or damages. Armstrong then moved for a new trial on the court’s finding, arguing that additional medical records produced since the hearing should change the court's ruling. Armstrong also complained that Offshore Specialty had failed to pay the medical bills related to his wrist injury. Following a hearing on the motion, the court began by noting that it was Armstrong who requested an early hearing on maintenance and cure, and held that Armstrong could not now, realizing he is unsatisfied with the outcome, have a second bite at the apple. The court held that Armstrong had failed to show good cause why his treating physicians could not have completed the medical reports at issue prior to the hearing and why depositions could not have been completed if the parties so desired. The court also found that Armstrong did not sustain an injury to his shoulder aboard the vessel because the evidence indicated that he did not complain of shoulder pain until after the re-injury and that he characterized the injury on the vessel as minor, necessitating neither leaving his hitch early nor skipping his next hitch. In addition, as to the payment of medical bills for the wrist, the court noted that at the time of oral argument, Offshore Specialty was going through significant financial trouble and had since filed for bankruptcy. Accordingly, those issues did not necessitate any reconsideration of the court's prior order. Armstrong’s motion was denied. (USDC EDLA, November 28, 2017) 2017 U.S. Dist. LEXIS 194926
COURT FINDS MCCORPEN DEFENSE VALID ON SUMMARY JUDGMENT
COLLINS V. CENAC MARINE SERVICES, LLC ET AL.
David Collins alleged that he slipped and fell down a flight of stairs on a vessel owned by Cenac Marine Services, LLC. After Collins filed suit to recover his alleged damages, Cenac moved for r partial summary judgment on the grounds that it did not owe maintenance and cure related to mental health conditions preexisting Collins' employment with Cenac. Collins opposed the motion. Cenac asserted the McCorpendefense with respect to Collins' preexisting mental health issues. It argued that the facts material to the defense were undisputed and conclusively showed that the defense applied. Collins countered that a genuine dispute of material fact existed as to whether Cenac was entitled to the defense. The court reviewed the three prongs of the McCorpen defense, initially finding that Cenac’s medical questionnaire was clearly designed to elicit the requested medical information. In response, Collins failed to disclose his highly relevant past medical information and, in fact, disclosed false and misleading information. Id. As intentional concealment is an objective inquiry, the court found that Cenac had satisfied McCorpen's first prong for purposes of summary judgment. The court also concluded that Collins failed to raise a genuine dispute of material fact for trial regarding the McCorpendefense's second prong. Collins provided no evidence that anyone associated with Cenac knew about Collins' documented history of nervousness, depression, and anxiety-the issues that Collins did not disclose to Cenac at the time that he was hired. Therefore, the court found that Cenac had satisfied McCorpen's second prong for purposes of summary judgment. Finally, both parties agreed that Collins' various pre-existing injuries to his mind and/or psyche affected the same area of his body that he claims he injured/re-aggravated while working for Cenac. As such, Cenac satisfied McCorpen's third and final prong for purposes of summary judgment. Therefore, the court held that Collins could not recover maintenance and cure for mental health conditions preexisting Collins' employment with Cenac. The motion for partial summary judgment was granted. (USDC EDLA, November 22, 2017) 2017 U.S. Dist. LEXIS 193338
COURT HOLDS THAT DREDGER CANNOT JUST RELY ON CORPS SPECS (CONT.)
WEEKS MARINE, INC. V. UNITED STATES OF AMERICA
A dredge owned by Weeks Marine, Inc. struck and ruptured a Contango Operators, Inc. pipeline, that crossed the Atchafalaya Pass Channel, and was attached to six wells. Contango and its insurers filed suit against Weeks and the United States of America to recover for the ensuing damages. Although Contango applied to the U.S. Army Corps of Engineers for a permit to construct the natural gas pipeline, information concerning the proposed placement of the Contango pipeline across the Atchafalaya Channel was not forwarded from the Regulatory Division of the Corps to the Waterways Division of the Corps. Weeks was awarded a contract to dredge the Atchafalaya Channel and, while five submarine pipelines located in or near the Atchafalaya Channel were identified in the specifications, the Contango pipeline was not identified in the dredging contract. After completing the pipeline Contango provided as-built drawings that illustrated the intersection of the pipeline and the Atchafalaya Channel to the Minerals Management Service, the National Ocean Service, and the United States Coast Guard; however, no division within the Corps received the as-built drawings. Prior to the pipeline rupture by Weeks’ dredge, NOAA had published an updated nautical chart and the Coast Guard had issued a Notice to Mariners (NM), both of which identified the Contango pipeline. The updated NOAA charts and NM were published after Weeks had been awarded the contract and had commenced dredging. After the parties stipulated to deferred production damages of $7,981,927.00, the court found Weeks liable for 40% of Contango’s damages and the Corps liable for 60% of Contango’s damages and holding Contango not contributorily negligent. Total damages, including prejudgment interest totaled $13,867,095.40. While the court found that, based upon custom and practice in the dredging industry, that Weeks had no statutory duty to have up-to-date navigation charts or licensed crew members aboard the dredge, the court refused to ignore the alternate availability and ease of access to current pipeline information, thereby finding Weeks partially liable for striking the Contango pipeline. The court found that the United States owed Contango a duty of reasonable care and concluded that the allision by the Weeks’ dredge and the resulting damage to the pipeline were foreseeable consequences of the failure of the Corps to include the Contango pipeline in the dredging contract specifications [see April 2014 Longshore Update]. Weeks and the United States appealed the judgment holding them 40% and 60% liable, respectively, for damages Contango suffered in the dredging accident. Notwithstanding, a dissenting opinion from Judge Owen, the majority affirmed in all respects [see June 2015 Longshore Update]. During the underlying litigation Weeks filed a cross-claim against the United States alleging that Contango's damages were caused by the negligence of the Corps. The court held that Weeks’ cross-claim was essentially contractual and that the court did not have jurisdiction to adjudicate the claim because Weeks had not complied with the Contract Disputes Act (CDA), which required Weeks to first submit its contract claim against the United States to the Contracting Officer for a decision. After paying its share of the judgment, Weeks filed a Certified Claim against the Corps for $5,900,897.55. The Contracting Officer denied the claim, and Weeks filed this action seeking indemnity against the United States. The parties then filed cross-motions for summary judgment. Weeks argued that the collateral estoppel effect of the court's finding in the underlying litigation made the United States liable to Weeks for breach of contract and sought to be reimbursed by the United States for the $5,900,897.55 it paid to Contango because of its own negligence. The court, quoting extensively from its decision in the underlying litigation, held that Weeks was not entitled to summary judgment on its negligence claim or on its breach of contract claim. Weeks Marine, Inc.'s motion for summary judgment was denied, and the United States of America's motion for summary judgment was granted. (USDC SDTX, October 31, 2017) 2017 U.S. Dist. LEXIS 180000
GENERAL MARITIME LAW DOESN’T REQUIRE TAX RETURNS
HINES, ET AL. V. SOUTHERN STATES OFFSHORE, INC.
Benjamin Hines and Andrius Vitto were fishing from Hines's recreational fishing vessel, when a vessel owned by Southern States Offshore, Inc. (SSO), traveled along the waterway at an excessive speed, creating a wake that swamped Hines' vessel. Hines was allegedly thrown around in the boat, and Vitto was thrown out of the boat entirely; both allegedly suffered various physical injuries. Plaintiffs filed suit alleging that the negligence of SSO or its employees caused their injuries. SSO filed a motion for partial summary judgment seeking dismissal of Hines' claim for economic loss to his part-time lawn maintenance business. Hines sought to recover past and future income that he has allegedly lost as a result of the accident. SSO argued that Hines presented insufficient evidence to meet his burden of production; and that he should not recover this lost income because he did not report it on his tax returns. Although there was a discrepancy between Hines' testimony that his business grossed $3,000 per week and the much lower gross reflected in the receipts, the court pointed out that it was not the function of summary judgment to resolve this discrepancy. Regardless of the exact amount of lost business income, the court found that Hines had met his burden of production that he earned income from his lawn care business and that this income has been reduced because his injuries require him to hire another person to physically mow the lawns. Hines did not report the income from his lawn care business on his tax returns. The court noted that, while tax returns may be the single best source of evidence on the subject of future earnings, general maritime law does not require tax returns in order to recover lost wages. Rather, what is required is that a plaintiff be awarded only the net income that she would have received after deducting taxes and work expenses. Therefore, the court held that Hines could recover lost income even if he did not report that income on his tax returns, though his recovery is limited to his after-tax income; it would be Hines' burden at trial to establish what his after-tax income would have been had he reported his business income. Therefore, because Hines had raised a genuine issue of fact as to the amount of income he has lost because he can no longer personally operate a lawnmower in his lawn care business, the court denied SSO's motion on the issue of Hines's ability to recover for lost income from his business. (USDC WDLA, November 17, 2017) 2017 U.S. Dist. LEXIS 190909
TOO MANY ESTATES AND PERSONAL REPRESENTATIVES
IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON"
This is yet another case involving the blowout, explosions, and fire which occurred aboard the DEEPWATER HORIZON, a semi-submersible drilling rig, as it was preparing to temporarily abandon a well on the Outer Continental Shelf. Roy Wyatt Kemp, a Transocean employee, was one of the eleven workers who died in the casualty. Kemp’s surviving spouse, Clara Courtney, was appointed administratrix of Kemp's estate. A few weeks after the incident, Transocean filed a limitation action under 46 U.S.C. §30511 and Rule F of the Supplemental Rules for Admiralty and Maritime Claims. Kemp's estate filed a claim in Transocean's limitation action on behalf of Kemp individually, as representative of Roy's estate, and as the natural tutrix of Kemp’s two minor children. The estate reached a settlement through the Gulf Coast Claims Facility, releasing all claims concerning Kemp's injury and death that were or could be asserted against BP, Transocean, Halliburton, and certain other parties. After the settlement, Kemp’s surviving mother sued BP and Halliburton, but not Transocean, in Texas state court for damages resulting from the death of her son, including loss of household services, loss of consortium, loss of economic support, and loss of inheritance, asserting claims under the Jones Act, general maritime law, and the Death on the High Seas Act. Defendants removed the case to federal court. Kemp’s mother filed a motion to remand, which was automatically stayed pursuant to a pretrial order. The court took up the remand motion, noting that in order to defeat remand, defendants may pierce the pleadings and must show that the Jones Act claim is baseless in law and in fact and served only to frustrate federal jurisdiction. The court found the Jones Act claim was fraudulently pleaded for two reasons. First, the defendant was not Kemp’s employer. Although the plaintiff argued that BP qualified as Kemp’s employer under the borrowed servant doctrine, the court found, based on its extensive experience with this litigation, that it could conclude with certainty that Kemp was not BP's borrowed servant. Second, the fact that Kemp was survived by a spouse and two children precluded any recovery by a surviving parent under the Jones Act. Accordingly, the Court found that the Jones Act claim was baseless in law and in fact and serves only to frustrate federal jurisdiction. That left the mother’s claims under general maritime law and DOHSA. While these claims could have been asserted in federal court, the "saving to suitors" clause generally prevents their removal from state court absent some other basis of federal jurisdiction. The OCSLA provided that basis, notwithstanding the fact that the mother did not explicitly invoke jurisdiction under that Act. Furthermore, the existence of OCSLA jurisdiction made the case removable even if the applicable substantive law is maritime, and even if the parties are not diverse, and even if a defendant is a citizen of the forum state. For these reasons, the court denied the motion to remand. Kemp’s mother admitted that Kemp’s surviving spouse was appointed administratrix of her son’s estate and refers to her as the personal representative. Nevertheless, the mother presents two arguments as to why she has standing under DOHSA. First, she claimed there is an exception that permits a beneficiary to bring a DOHSA claim when a conflict of interest exists between the personal representative and a beneficiary. However, the Fifth Circuit expressly considered and rejected this approach when it decided Calton. Second, Kemp’s mother argued that she too is a personal representative, submitting an order nearly seven years after death, that purported to appoint her as "the Personal Representative of the Estate of her son for the Sole Purpose of Pursuing Her Own Claims as Parent and Dependent Relative. The court was not persuaded. Even if it were possible to be subsequently appointed as personal representative, there are no claims left for her to assert in this capacity. For these reasons, the court held that the mother lacked standing under DOHSA to bring her claims, and the court granted defendants' motion to dismiss. (USDC EDLA, November 22, 207) 2017 U.S. Dist. LEXIS 193121
COURT RESOLVES DISCOVERY ISSUES IN FAVOR OF SEAMAN
NOLAN V. OMEGA PROTEIN, INC.
Vernon Nolan filed his Jones Act lawsuit against his employer Omega Protein, Inc. alleging injuries arising being hit by an improperly thrown stop line onboard a vessel owned and operated by Omega. After filing suit, Nolan moved to compel the production of documents and a supplemental privilege log. The motion raised the issues of whether Omega had met its burden to provide a privilege log, whether Omega must produce Nolan’s recorded statement prior to his deposition, whether the recorded statements of other employees of Omega were protected by the work product doctrine, and whether an investigator’s interview report should be produced. Omega argued that it should be allowed to delay disclosure of Nolan's statement until after his deposition because doing so would serve the interests of justice. Omega points to purported examples of Nolan's changing story regarding the alleged accident and insisted it must be allowed to depose him so that he does not conform his deposition testimony to the recorded statement. The court found no inconsistencies in the referenced statements. The court also requested that Omega provide a copy of Nolan's statement for in camera review to better determine the existence of discrepancies. There was at least one inconsistency with the recorded statement and the complaint's description of the event. However, the court found this inconsistency and the inconsistency on the Coast Guard medical form insufficient to establish good cause to delay production of Nolan's statement. Instead, the court found that the interests of justice were served by production of the statement in advance of Nolan's deposition. Omega also insisted that the statements of Nolan’s fellow employees were created in anticipation of litigation. As Nolan argued in reply, the court found that Omega had failed to present actual evidence that the primary purpose behind the interviews was anticipation of litigation. Omega's counsel admitted that his firm was not retained to handle the matter until after the lawsuit was filed. There was no evidence that Omega's in-house counsel was involved in an assessment of Nolan's case. The court found that Omega had failed to demonstrate that the primary motivating purpose in securing the witness statements was in furtherance of a sufficiently identifiable resolve to litigate, rather than a more or less routine investigation of a possibly resolvable claim.. Accordingly, the statements were ordered to be produced. Counsel for both sides agreed that the investigative report was subject to the same analysis as the employee statements. Accordingly, for the same reasons, the court finds that the report must be produced. Nolan’s motion to compel was denied as moot n part as to the privilege log, and granted in part as to the remaining issues. (USDC EDLA, November 1, 2017) 2017 U.S. Dist. LEXIS 181306
DISCOVERY DISPUTE RESULTS IN SANCTIONS AGAINST PLAINTIFFS
GARZA V. PHILLIPS 66 COMPANY, ET AL.
Manuel Garza, Larry Laborde, Lynn Laborde, Michael Northcutt, Larry A. Smith, Donald Stephens, Wayne Buckley, Charles Easterling, Steven Goode, Jerry Johnson, James Little, Paul Luckey and James Wells filed a seamen's complaint is state court, seeking recovery for injuries they allegedly sustained as a result of exposure to asbestos-containing drilling mud during their employment with multiple defendants. The complaint asserted claims under Louisiana state law, general maritime law and the Jones Act. The case was removed to federal court based on diversity jurisdiction. One of the defendants, Kaneb Management Company LLC n/k/a Nustar Pipeline Company, LLC (Kaneb), moved to compel responses to interrogatories and requests for production of documents from five of the plaintiffs. Kaneb also sought an award for the costs and reasonable attorney's fees incurred in filing the motion, pursuant to Fed. R. Civ. P. 37(a)(5)(A). Kaneb asserted that as of the date of its motion, plaintiffs had not responded to the discovery requests, despite several attempts made by Kaneb's counsel to contact plaintiffs' counsel. As the motion was unopposed, the court concluded that Kaneb had met its burden of proving that the motion to compel should be granted. Kaneb's discovery requests sought the same information from each of the plaintiffs, including, but not limited to, information regarding the nature and extent of each plaintiff's injuries and damages and information regarding employment history, past medical treatment, compensation received for the alleged injuries, prior injuries and illnesses, the underlying accident, the Diamond M. drilling rig each plaintiff worked on, Diamond M.'s alleged negligence, prior litigation and matters related to the witnesses to be called and the documents to be used at trial. Accordingly, Kaneb's motion to compel was granted. Kaneb's request for reasonable attorney's fees under Fed. R. Civ. P. 37(a)(5)(A) was also granted, and plaintiffs were collectively ordered to pay Kaneb $500.00 for the reasonable attorney's fees it incurred in filing the motion to compel. (USDC MDLA, November 14, 2017) 2017 U.S. Dist. LEXIS 187924
PLAINTIFF’S CLAIM AGAINST HOSPITAL TIME-BARRED, BUT CROSS-CLAIM IS NOT
DOWNING V. TAPPAN ZEE CONSTRUCTORS, LLC, ET AL.
Richard Downing brought an action against Tappan Zee Constructors, LLC ("TZC"), Phelps Memorial Hospital, Northwell Health, Inc., Baruch Berzon, M.D., Sanda Carniciu, M.D., Thomas Lee, M.D., and Westchester County Healthcare Corp. (WCHC), asserting claims sounding in maritime law, negligence, and medical malpractice. WCHC's moved, pursuant to Rule 12(b)(6), to dismiss the third amended complaint as against WCHC and to dismiss the cross-claim filed by TZC against WCHC. Downing worked as a seaman aboard the a tug at the Tappan Zee Bridge construction site on the Hudson River. While handling heavy mooring lines, Downing allegedly injured his back and spinal cord. Downing was transferred to a crew boat to be taken ashore, where he was treated and then transferred to Phelps Memorial Hospital. While at Phelps, plaintiff became paralyzed from the waist down. Because Phelps could not perform the emergency spinal surgery Downing required, he was transferred to WCMC, owned and operated by WCHC, a quasi-municipal corporation. WCMC performed spinal surgery, but Downing remained paralyzed. Downing alleged the time delay between his arrival at WCMC and his surgery caused or contributed to his permanent paralysis. Downing sued TZC, Traylor Bros., Inc., the tug, Phelps Memorial, WCMC, Northwell Health, Inc., and the barge and claimed negligent medical care. WCHC moved to dismissed, arguing Downing’s claim against it, added by Downing’s third amended complaint, was time-barred. The court agreed. Under both the New York General Municipal Law § 50-i(1)(c) and the New York Public Authority Law § 3316(1)(c), an action against a municipality for personal injury sounding in negligence "shall be commenced within one year and ninety days after the happening of the event upon which the claim is based." Under CPLR § 204(a), the statute of limitations is tolled while a petition for leave to serve a late notice of claim is pending. Downing’s alleged injury occurred, at the latest, on July 9, 2015, the date Downing underwent spinal surgery. One year and eighty-three days later, on September 30, 2016,Downing filed a verified petition for leave to serve a late notice of claim. That filing tolled the statute of limitations, of which seven days remained. The statute of limitations began to run again when the court granted the petition to serve a late notice of claim on January 23, 2017. The statute of limitations expired seven days later, on January 30, 2017. Plaintiff filed the third amended complaint, in which he first named WCHC as a defendant, on February 23, 2017, twenty-four days too late. Accordingly, Downing’s claim against WCHC was dismissed as time-barred. WCHC argued that if Downing’s claim against it was dismissed, the court must also dismiss TZC's cross-claim against WCHC. The Court disagreed. A cross-claim, once properly made, does not require dismissal when the defendant to whom it was addressed ceases to be a co-defendant. Accordingly, the cross-claim brought by TZC against WCHC s allowed to proceed. (USDC SDNY, November 14, 2017) 2017 U.S. Dist. LEXIS 187791
COURT REJECTS ARGUMENT THAT THERE WAS NO INSURANCE OBLIGATION
MAYS V. C/W RE all C DIVE LLC, ET AL.
This is a consolidated action of five cases arising from a pipeline explosion. Jason Mays, Brian Beadell, Matthew Boyd, and Adam Zima alleged that they worked for C-Dive, LLC aboard its vessel. According to plaintiffs, the C-Dive vessel was servicing a pipeline owned by Gulf South Pipeline Company, LP. During work, there was a release of gas that caused an explosion and allegedly injured the plaintiffs. The pipeline in question was owned and operated by Gulf South, which is a subsidiary of Boardwalk Pipelines, LP. Boardwalk Pipelines had entered into a Master Services Agreement with C-Dive, which was a blanket contract that did not itself authorize any specific work, but that would be followed by work orders between the parties adopting the terms of the MSA. C-Dive and Gulf South entered into one such work order, the Scope of Work Agreement (SWA), whereby C-Dive was to decommission the pipeline later involved in the explosion. In separate consolidated actions, plaintiffs brought claims for negligence, Jones Act negligence, and unseaworthiness against C-Dive and Gulf South. In the final consolidated matter, C-Dive sought limitation of liability. Gulf South made cross-claims in each of the consolidated actions against C-Dive, alleging that C-Dive was required to defend and indemnify Gulf South under the MSA. Gulf South also made third-party claims in each of the consolidated actions against Catlin Insurance Company and New York Marine & General Insurance Company as an additional insured under policies those companies issued to C-Dive. Catlin, New York Marine and C-Dive moved for summary judgment dismissing Gulf South's claims seeking additional insured status under C-Dive's policies. They argued that the MSA obligated C-Dive to name only Boardwalk Pipelines as an additional insured, not any of its subsidiaries. The court found otherwise. The plain meaning of the MSA is that the terms "Boardwalk" and "Boardwalk Pipelines, LP" were interchangeable. The agreement went on to state that reference to Boardwalk shall also include its subsidiaries. Because the MSA earlier provided that the term "Boardwalk" refers to the entity Boardwalk Pipelines, that sentence means that when the MSA refers to the entity Boardwalk Pipelines it includes the subsidiaries. Therefore when the MSA and its attachments require C-Dive to name Boardwalk Pipelines, LP as an additional insured, they are referring to the entity Boardwalk Pipelines and that reference includes its subsidiaries. Because the court found that the MSA and SWA obligate C-Dive to make Gulf South an additional insured, C-Dive, Catlin, and New York Marine's motion to dismiss claims based on that obligation was denied. (USDC EDLA, November 9, 2017) 2017 U.S. Dist. LEXIS 185874
Quotes of the Month . . .“Success is not the key to happiness. Happiness is the key to success. If you love what you are doing, you will be successful.”-- Albert Schweitzer
“Nothing can bring you success but yourself.” -- Napoleon Hill
“Success consists of going from failure to failure without loss of enthusiasm.” -- Winston Churchill
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