May 2018
Notes From Your Updater: A petition for certiorari was filed with the U.S. Supreme Court in the case of Doiron, et al. v. Specialty Rental Tools & Supply, LLC, et al., Docket No. 17-1420 [see February 2018 Longshore Update]. The questions presented are: “Whether it runs afoul of this Court’s consistent, deeply-established, and binding precedents for the court of appeals to decline the uniform application of federal maritime law, including its choice of law rules, in order to give preference to a state’s parochial interests;” and “Whether a downstream commercial maritime service provider whose services are utilized in the performance of a contract may rely on and enforce that contract under federal maritime law in a federal court sitting in admiralty.
On April 19, 2018, the Longshore Division of the Office of Workers’ Compensation Programs published a final rule, at 83 FR 17287, which contained regulations implementing the Longshore
and Harbor Workers’ Compensation Act’s provisions on maximum and minimum amounts of compensation payable. These regulations attempt to clarify how the Department interprets and applies these provisions in accordance with several court decisions to ensure injured workers are compensated properly and insurers and employers are aware of their responsibilities. In addition, the rule implements the Act’s annual compensation-adjustment mechanism for permanent total disability compensation and death benefits. This rule becomes effective May 21,
2018.
On March 28, 2018, the Ninth Circuit Court of Appeals issued a revised opinion in the case of
Barnes v. Sea Hawaii Rafting, et al. [see April 2018 Longshore Update], however, the outcome remained the same. (9th Cir, March 28, 2018) 2018 U.S. App. LEXIS 9891, 2018 U.S. App. LEXIS 9890
The petition for certiorari filed with the U.S. Supreme Court in the case of Jordan v. Director, OWCP, et al. [Dyncorp International, LLC], Docket No. 17-843 [see January 2018 Longshore Update] was denied by the Court on April 23, 2018. (Sup. Ct., April 23, 2018) 2018 U.S. LEXIS 2558. This was a Defense Base Act case involving claims of discrimination and additional compensation.
APPELLATE COURT REVERSES ALJ AND BRB IN A DISHEARTENING OPINION
COLARUOTOLO, ET AL. V. SSA CONTAINERS, INC., ET AL.
Cosmo Colaruotolo worked for several decades as a longshoreman, performing various roles. He allegedly suffered several work related injuries throughout the years, consequently undergoing numerous back surgeries and spinal fusions. After his final injury in 2010, Colaruotolo sought permanent total-disability benefits under the LHWCA from SSA Containers, Inc. and its insurance carrier. Although an ALJ initially granted those benefits, he later granted SSA’s motion for reconsideration, holding that Colaruotolo was able to work as a tower clerk and that this position was reasonably available. The Benefits Review Board affirmed in a divided decision. Colaruotolo then sought further review, contending that the findings of the ALJ and BRB were unsupported by substantial evidence. The appellate court initially noted that, in holding that the tower-clerk position would be available to Colaruotolo at least three days a week, the ALJ relied solely on the opinion of SSA’s vocational expert. The ALJ originally concluded that the position's availability was "speculative." However, the ALJ later reversed course, finding that "a fairer reading" of the expert’s deposition testimony was that the tower-clerk position was available at least three days a week and that the speculation related to whether Colaruotolo could obtain the tower clerk position four or five days per week. The appellate court found that this conclusion was unsupported by substantial evidence for several reasons. The vocational expert’s testimony revealed that he was unwilling to unequivocally state that the tower-clerk position would be available even three days a week. The appellate court found that a full reading of the testimony did not convey any sense of assurance that the tower-clerk position would be reasonably available to Colaruotolo. Second, the findings by SSA’ vocational expert were premised on demonstrably incorrect information. The expert explicitly based his availability conclusion in part on Colaruotolo’s purported statements, but Colaruotolo counsel asserted that Colaruotolo never made these statements. Contrary to the expert’s recollection, his own notes reflect that Colaruotolo stated that the position is "rarely available" and that Colaruotolo previously worked the position only "occasionally." The Board, however, erroneously perceived this issue as a conflict in evidence rather than a defect in the expert’s underlying information. Additionally, the vocational expert’s analysis regarding the tower-clerk position's availability did not take into account the fact that Colaruotolo medically retired from his union. It was therefore unclear whether Colaruotolo’s union seniority remained intact, which was a factor critical to the distribution of jobs, even absent disability accommodations. Finally, the ALJ and Board failed to consider the fact that Colaruotolo had ample incentives to return to work as a tower clerk if the position was readily available to him. The appellate court concluded that, when these issues were considered collectively, it was evident that the ALJ and the Board's findings regarding the availability of the tower-clerk position were unsupported by substantial evidence. Notwithstanding a vigorous dissent for Judge Rogers, a judge from the 6th Circuit sitting by designation, the appellate court granted the petition for review and remanded for an award of permanent total-disability benefits. (9th Cir, April 19, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 9878
Updater Note: The 9th Circus does it again, showing little respect for their colleague from the 6thCircuit, who could probably teach them a thing or two about fairness. The employer really got shafted here.
THOSE PRO SE LONGSHORE CLAIMANTS NEVER SEEM TO GO AWAY
TYLER V. MAIN INDUSTRIES, INCORPORATED, ET AL.
Myra Tyler initially filed a claim under the LHWCA in 2008 for injuries to her tailbone, back, neck, right ankle and carpal tunnel syndrome (CTS) which she allegedly sustained while working for her employer. Following a formal hearing and ALJ awarded Tyler temporary total disability benefits and medical benefits, for her work-related tailbone fracture and resulting back pain. The ALJ found, however, that employer had already paid claimant all of the compensation to which Tyler was entitled. The ALJ found that Tyler did not establish that her remaining alleged injuries were related to her employment accidents. Tyler appealed this decision. The Board vacated the finding that Tyler was not entitled to the §20(a) presumption with regard to her CTS and remanded the case for further consideration of that issue. In all other respects, the Board affirmed the ALJ’s decision. On remand the ALJ awarded Tyler temporary total disability benefits and medical benefits, for her work-related CTS. That decision was not appealed. However, Tyler did subsequently file a motion for §22 modification, seeking additional compensation for her tailbone and back conditions. The ALJ issued an order to show cause why Tyler’s claim should not be dismissed as untimely. Her employer urged that the case be dismissed. The ALJ addressed Tyler’s submissions in support of her motion for modification, and concluded that Tyler’s motion was untimely filed, and consequently dismissed Tyler’s motion for modification. On appeal, Tyler challenged the ALJ’s dismissal of her motion for modification. Employer responded, urging affirmance. The Board’s review of the administrative file indicated that the ALJ’s findings of fact and conclusions of law were rational, supported by substantial evidence, and in accordance with law. Therefore, the Board affirmed the dismissal of Tyler’s Modification claim. Proceeding pro se, Tyler petitioned for review of the BRB’s decision and order affirming the ALJ’s dismissal of her request for a modification. The appellate court’s review of the record disclosed that the Board's decision was based upon substantial evidence and was without reversible error. Accordingly, the appellate court denied Tyler leave to proceed in forma pauperis and denied the petition for review. (4th Cir, April 2, 2018) 2018 U.S. App. LEXIS 8275
YOU CHOSE THE METHOD OF ACCESSING THE VESSEL (CONT.)
SCHNAPP V MILLER'S LAUNCH, INC.
Wayne Schnapp was allegedly injured while boarding a vessel owned and operated by Miller 's Launch, Inc., and chartered by Schnapp’s employer, nonparty Weeks Marine, Inc., to transport workers and equipment to and from job sites. Schnapp claimed Miller’s negligence, including its vessel’s inadequate equipment and unsafe condition and inadequate warnings, caused his injury. Schnapp was employed by Weeks Marine as a surveyor working on a bridge rehabilitation project at the time of his alleged injury, and was transported to shore on board Miller’s vessel. Schnapp, who was not involved in the unloading or loading of equipment, disembarked by climbing up to the pier. When re-boarding the vessel, he injured his leg by jumping down from the pier onto the deck while reaching forward in an attempt to grab the shoulder of another Weeks Marine employee as an anchor standing on the vessel a few feet in front of plaintiff. Schnapp did not notify the captain when re-boarding nor request assistance in re-boarding and admitted that he decided to jump down to the deck. Schnapp collected LHWCA benefits from his employer after the incident, but later filed a §905(b) action against Miller’s, who moved for summary judgment dismissing Schnapp’s complaint because the undisputed facts established that Miller’s conduct did not amount to negligence under the LHWCA. Since Schnapp failed to identify any viable breach of Miller’s Scindiaduties, the court granted Miller’s motion for summary judgment, dismissing Schnapp’s claim of negligence under §905(b) [see February 2015 Longshore Update]. Schnapp appealed, raising issues about the various duties that a vessel owner owes a harbor worker asserting a claim pursuant to the LHWCA under Scindia. The appellate court initially noted that Schnapp was not a mere passenger on the Miller’s Launch vessel, but was working aboard the vessel at the time of the accident. Notwithstanding a vigorous dissent from Judge Richard Andrias, the majority found that there were issues of fact as to whether Miller’s Launch violated both the turnover duty and the duty to intervene. The appellate court held that Miller’s was not entitled to summary judgment on Schnapp’s personal injury claim under §905(b), because there were issues of fact as to whether the owner violated the turnover duty and the duty to intervene, including, whether Schnapp really had the option of obtaining a gangway or insisting that one be provided. The order on summary judgment was reversed and the case was remanded to the trial court [see April 2017 Longshore Update]. Miller’s Launch time moved for reconsideration, pursuant to section 500.11 of the rules. On reconsideration, the appellate court affirmed the order, with costs, and certified question answered in the affirmative. Triable issues of fact existed as to whether Miller's Launch breached a duty of care it owed to Schnapp pursuant to the LHWCA. (1st App Div, Sup Ct. of NY, April 26, 2018) 2018 N.Y. LEXIS 811
LHWCA CLAIMANT APPEALS VOCATIONAL REHABILITATION EXAM ORDER
RUIZ V. NATIONAL STEEL & SHIPBUILDING COMPANY, ET AL.
Oscar Ruiz alleged injuries to both knees and filed two claims under the LHWCA, which were consolidated for hearing. As the close of discovery for that hearing approached, Ruiz’s employer, National Steel & Shipbuilding Company (NSSC) moved for a protective order. It had noticed an evaluation that vocational rehabilitation counselor (VRS) was to conduct. The notice required Ruiz to appear at the VRS’s office and cooperate with the evaluation. Alternatively, the VRS could perform the evaluation at Ruiz’s counsel’s office with counsel for both parties present. Ruiz objected. He asserted that he was entitled to have his counsel present for the evaluation while defense counsel was excluded. In the alternative, Ruiz offered that the VRS could question Ruiz at his deposition, or conduct the vocational interview without the presence of counsel, but a court reporter would transcribe the assessment. NSSC would not agree to this, cancelled the evaluation, and moved for a protective order to exclude Ruiz’s counsel from the vocational evaluation. In the alternative, NSSC stated that, if Ruiz’s counsel could be present, NSSC’s counsel must be allowed to be present as well. The ALJ ordered Ruiz to attend the vocational evaluation with VRS and without counsel. Ruiz moved for reconsideration. The ALJ noted that NSSC had not moved to compel the evaluation but only for a protective order to exclude Ruiz’s counsel. The ALJ therefore issued a substitute order that no longer compelled Ruiz to attend the evaluation. The order on reconsideration was limited to granting the protective order that excluded counsel from any vocational evaluation. Ruiz took an interlocutory appeal of the ALJ’s order on reconsideration. The Benefits Review Board dismissed Ruiz’s interlocutory appeal, and Ruiz appealed the dismissal to the Ninth Circuit and that the Benefits Review Board certified the record to the Ninth Circuit. The appellate court held that because the Benefits Review Board's order was not appealable as a final judgment or an order that came within the collateral order doctrine, Ruiz’s appeal must be dismissed. (9th Cir, April 26, 2018) 2018 U.S. App. LEXIS 10874
COURT FINDS QUESTION OF FACT PRECLUDES 905(B) SUMMARY JUDGMENT
GUIDRY V. NOBLE DRILLING SERVICES INC, ET AL.
Glen Guidry was employed as a field service representative by VAM USA, LLC, a subcontractor of Shell. VAM performed casing operations aboard a drill ship, which was owned by Noble Drilling Services. Guidry was inspecting a joint casing while standing upon the drilling floor, which was covered in mud. Guidry slipped and allegedly sustained injuries to his back, ligaments, muscles, and nervous system. He sued Noble, claiming that he was injured as a result of the their negligence and seeking relief under general maritime law and the LHWCA. Nobel moved for summary judgment, contending that nothing in the record created a material fact issue and that Guidry had not submitted evidence that supports his claim that Nobel breached the duty owed to him. But the court found that Guidry had submitted testimony that undermined Nobel’s arguments. Nobel pointed to Guidry’s testimony that he was aware that mud and water were a frequent occurrence in such operations and that the mud was a hazard present in this operation. Moreover, they pointed to testimony that the area was diligently cleaned during this project between every joint casing, arguing that Nobel cannot be held liable for Guidry's fall when Guidry was aware of the conditions and did not take steps to clean the mess. Guidry countered that, while there was always slippery mud during these operations, the amount was excessive here. He testified that other operations cleaned the mud between every joint, where on the Noble drill ship, the Noble employees would clean between every two or three joints, allowing the mud to accumulate. Strong or weak, the court found that this argument was obviously a fact issue for trial. Guidry also testified that Noble was in charge, or at least shared responsibility, for the casing operation. Further, Guidry pointed to his own testimony that the driller's speed determines the amount of mud that would accumulate on the rig floor; the faster he drilled, the more mud would build up. Because Guidry wasn't in control of the amount of mud or the cleaning of it, he argued, Noble was not immunized from liability. The court concluded that these issues demonstrated that a genuine dispute of fact existed regarding whether Nobel breached their duty of reasonable care. The conflicting record testimony went directly to the issue of whether Noble had active control of the area and operation where Guidry was injured. Because there was a genuine dispute as to material facts underlying a determination of whether Noble breached its duty and was in control of the area, summary judgment as to Guidry's claim under §905(b) was highly inappropriate. Nobel’s motion for summary judgement was denied. (USDC EDLA, April 4, 2018) 2018 U.S. Dist. LEXIS 57382
LONG & COMPLICATED RULING IN §905(B) CASE IN WISCONSIN COURT (CONT.)
HOLDER V. THE INTERLAKE STEAMSHIP CO., ET AL.
James Holder alleged that he suffered from lead poisoning while working on a project to convert a ship’s propulsion system from steam to diesel-powered. Holder applied for a job as a "ship fitter" with Tradesmen, who assigned workers to Fraser Shipyards for the vessel upgrade, including Holder. As a result, the vessel was in dry dock for six months, and could not have been used for transport during this time. The parties disputed who controlled the vessel during this upgrade. Holder argued that the ship remained in the active control of the Interlake Steamship Company, while Interlake pointed to Fraser. They likewise disputed whether Interlake controlled the details of the work performed by Fraser. Holder worked aboard the ship at Fraser's dry dock for 37 days. After Holder stopped working on the vessel, a former colleague advised him to have his blood tested because others had been exposed to lead. When Holder did so, his blood test revealed a blood-level of 36.5 µg/dL. In contrast, a normal blood lead level for adults at that time was considered to be less than 5 µg/dL, with an average of 1.2 µg/dL. Interlake, the owner of the vessel involved, started a ten-year project to upgrade five ships in its fleet, including converting four to diesel-powered. To facilitate this, Interlake entered into a contract with Fraser. Capstan is Fraser's sole shareholder and parent corporation. Holder sued the ship's owner, Interlake, alleging negligence under the LHWCA, as well as Fraser Shipyards, Inc., where the vessel was dry-docked for the upgrade, and Capstan Corporation, Fraser's parent corporation, for negligence under §933 of the LHWCA. The principal issue on summary judgment as to Interlake, the vessel’s owner, was whether it was subject to liability under the Act as a "vessel," or under the general umbrella of a suable third party. Turning first to Interlake's assertion that the situs of injury was on land because the vessel was in "dry dock," Holder pointed out, that term is included within the definition of "navigable waters" in §903(a) itself. Indeed, a vessel in dry dock has still been considered within navigable waters for purposes of admiralty jurisdiction. As to the argument that vessel status did not exist, however, Interlake had a better argument, albeit one that did not warrant summary judgment. The relevant question was whether the work on the vessel became significant enough that it was no longer capable of being used for maritime transportation. Thus it will be for the jury to determine whether the Jackson was a "vessel" at the time of Holder’s lead exposure, which will determine the applicability of §905(b). Holder also brought a negligence claim against Fraser under §933 of the Act. Fraser argued that Holder was its "borrowed employee" when he was injured, and as such, §933 is unavailable because the LHWCA limits employer liability to compensation under §904. Holder and Interlake argued that a contractor (such as Fraser) is not the LHWCA employer of a subcontractor's (i.e., Tradesmen) employees unless the subcontractor failed to secure payment of LHWCA benefits and the contractor stepped in to fill the gap. As pointed out by Fraser, however, this argument has been addressed and rejected by other courts on the ground that the 1984 amendment to §905(a) did not eliminate the borrowed employee doctrine. After weighing the Ruiz factors, the court found that any reasonable jury would find Holder was the borrowed employee of Fraser and therefore his only recourse was a workers' compensation claim. Fraser's motion for summary judgment was granted. Interlake's motion for summary judgment was denied. The court ordered that trial would proceed on a trifurcated basis: first, the jury would determine whether vessel status existed at the time of Holder’s injuries; then it would determine liability; finally, if the jury found liability, it would calculate damages [see February 2018 Longshore Update]. The case was set for a jury trial to resolve Holder's negligence claims stemming from lead exposure. Following summary judgment, his claims Interlake and Capstan remained; also remaining was a cross claim by Interlake against Fraser. The court then addressed the parties' voluminous briefing on various motions in limine, many of which the court found to be frivolous. Holder’s Capstan’s and Interlake’s motions in limine were granted in part and denied in part. Capstan's supplemental motion in limine was reserved. Fraser's motions in limine were denied, while its supplemental request was reserved. Fraser's request to file a reply brief was granted. Fraser's initial motion to sever was denied. One of Interlake's motions in limine was reserved in part and denied in part. Interlake's motions to join were granted. Readers are referred to the extremely lengthy opinion itself for details on the various motions. (USDC WDWI, April 10, 2018) 2018 U.S. Dist. LEXIS 60496
INSUFFICIENT POTENTIAL FOR DISRUPTING MARITIME COMMERCE
HICKS ET AL. V. BP EXPLORATION & PRODUCTION, INC. ET AL.
Robert Hicks was working as a rig electrician on an oil and gas spar platform on the Outer Continental Shelf, pursuant to a contract between Ensco and BP Exploration. Hicks alleged that he was injured during a basket transfers between a vessel and the platform. According to Hicks, the personnel basket in which he was being transferred hit the deck of the vessel, then jerked up before it hit the vessel again. Hicks contended that he fell down in the basket the second time that it made contact with the vessel, with one leg in the basket and one leg out of it. Hicks and his wife eventually initiated this tort action, alleging that negligence attributable to BP Exploration, BP America, and Bishop-as well as other defendants-during the personnel basket transfer caused the injuries to Hicks. The question is, what substantive law governs plaintiffs' case? BP Exploration and Production Inc., BP America Production Company, and Bishop Lifting Products, Inc. Filed motions for summary judgment, argue that Louisiana law applied to the negligence action, at least as to plaintiffs' tort claims against them. Plaintiffs countered that general maritime law, not Louisiana law, applied. The court first considered whether the tort action arose under the Outer Continental Shelf Lands Act (OCSLA). Applying the "but-for" test to the undisputed facts, the court concluded that OCSLA jurisdiction extends to plaintiffs' tort action. As a contract rig electrician on the oil and gas spar platform Hicks' employment undoubtedly furthered mineral development on the OCS. In addition, Hicks would not have suffered his alleged injury but for his employment on the offshore platform. However, the fact that a case arises under OCSLA does not mean that it is governed by OCSLA. In order for adjacent state law to apply as surrogate federal law in a case arising under OCSLA, then, general maritime law must not apply of its own force. The court then proceeded to consider whether plaintiffs' tort claims sounded in admiralty. The court assumed, arguendo, that the maritime situs requirement was met. The Court also assumed, arguendo, that at least one of the putative tortfeasors was engaged in a traditional maritime activity at the time of the incident and that the second prong of the maritime connection requirement was thus met. Therefore, the court was left only with the first prong of the maritime connection requirement. Because the activities performed on offshore platforms by platform workers fall outside the purview of maritime navigational or commercial activities, injuries to platform workers during personnel basket transfers on offshore platforms will not have a potentially disruptive impact on maritime commerce. The motions filed by the BP defendants and Bishop were granted, and the court held that Louisiana law governed plaintiffs' tort claims against them. (USDC EDLA, April 5, 2018) 2018 U.S. Dist. LEXIS 57895
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
Digest 287
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #287. 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 . . .
EMPLOYER PREVAILS ON CAUFIELD DEFENSE TO MEDICAL RATES
JACKSON V. NCL AMERICA, LLC, ET AL.
While on a Norwegian Cruise Line cruise ship, working as a utility hand, Dorothy Jackson allegedly slipped on an onion peel neat the ship’s garbage disposal area and fell. After seeing multiple attorneys and multiple doctors that the attorneys referred her to, Jackson had two right knee surgeries, a left knee surgery, a right shoulder surgery, and a back surgery. All of the surgeries were performed by a physician chosen by Jackson, who was not within Norwegian's network. Norwegian reimbursed Jackson at its network rate for the three knee surgeries and the shoulder surgery, as well as her office visits and physical therapy. It refused to reimburse her for the back surgery. Norwegian explained that Jackson had failed to disclose during her application process her previous back pain. Norwegian argued that the back surgery was related to that undisclosed condition, and as a result, it was not obligated to pay for it. Jackson sued Norwegian, asserting claims of Jones Act negligence, unseaworthiness, maintenance, and cure. After a bench trial, the district court entered judgment in favor of Jackson on the cure claim, although it limited her recovery to the rate that Norwegian would have paid for her back surgery had a physician in its network performed the surgery. It ruled in favor of Norwegian on the remaining three claims. Jackson contended that the district court erred by ruling that she failed to present sufficient evidence on her negligence claim. Jackson also argued that the district court erred in ruling that she failed to present sufficient evidence of Norwegian's notice of the dangerous condition. She asserts that the onion peel must have been dropped by a fellow crewmember, and because the crew member created the dangerous condition, Norwegian had actual notice of it. The appellate court noted that it had previously rejected the position that notice can be imputed to a shipowner merely because the shipowner created the dangerous condition, reasoning that such a rule would obviate the requirement that the shipowner have notice of the risk-creating. Jackson presented no evidence of Norwegian's actual notice of the onion peel and instead relied on the testimony that neither she nor Davis dropped the onion peel, and that the ship's passengers did not have access to the area where Jackson fell. The appellate court conclude that such circumstantial evidence, without more, did not provide sufficient evidence that Norwegian knew about the dangerous condition. Because Jackson failed to provide sufficient evidence that Norwegian had actual notice of the dangerous condition, and because she conceded that concepts of constructive notice have no place in this case, the appellate court held that the district court did not err in concluding that Jackson failed to present sufficient evidence of Norwegian's negligence. Norwegian contended that the district court erred by ruling in favor of Jackson on her cure claim because, it argues, it should have prevailed on its affirmative defense under McCorpen. Norwegian contended that, although the district court correctly found that it satisfied the first two elements of the McCorpen defense, the court erred in ruling that Norwegian failed to meet the third element, the "connection" element, by applying that element too rigidly. Jackson argued that the district court got it right on her cure claim, except that it erred by limiting her recovery for medical expenses to Norwegian's network rates. The record showed that as early as 2008 Jackson had seen doctors concerning pain in her lower back, with some evidence of degenerative disk disease at L2-L3 and L3-L4. After her fall on the vessel, hospital records show that she was diagnosed with and underwent surgery for lumbar disk herniation at L4-L5 and L5-S1. Given that evidence, along with the expert testimony about Jackson's medical conditions and surgeries, the district court did not clearly err in finding that there was no compelling evidence of a connection between Jackson's pre-2012 back pain, and the herniated disks for which she underwent surgery. Although the two injuries do not have to be identical, simply showing that Jackson's previous pain and her injury from the fall affect the same body part without more specificity did not suffice. Because Norwegian failed to show a connection between Jackson's degenerative disk issues at L2-L3 and L3-L4 and her disk herniation at L4-L5 and L5-S1, the district court did not err in concluding that Norwegian failed to satisfy the third element of the McCorpendefense. As a result, it did not err in ruling in favor of Jackson on her cure claim. Finally, the appellate court addressed Jackson’s contention that the district court erred in limiting her recovery on her cure claim to Norwegian's network rates. The record showed that Jackson, following the advice of her attorneys, chose not to speak with Norwegian and instead to seek treatment with her own private physicians. She did that despite the fact that Norwegian told her attorney that if she picked a doctor more expensive than the doctors that Norwegian selected for her she would be responsible for the difference in that pay. Based on the evidence in the record, the appellate court was not left with a definite and firm conviction that the district court made a mistake in determining that Jackson sought private medical care instead of medical care offered by Norwegian. The district court’s judgment was affirmed in all respects. (11th Cir, April 10, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 9176
GENERAL MARITIME AWARD FOR EMOTIONAL DISTRESS IN ZONE OF DANGER
SAWYER BROTHERS, INC., ET AL. V. ISLAND TRANSPORTER, LLC, ET AL.
Sawyer Brothers, Inc. hired Island Transporter, LLC to ferry three construction vehicles and their drivers to a new location. The vessel transporting the men and their equipment encountered rough seas while enroute, and two of the vehicles tipped over onto the vessel's port bulwark. Sawyer Brothers, and its owners, subsequently filed this maritime action, claiming that the ship captain was negligent and seeking damages for property loss and emotional distress. Following a bench trial, the district court found in favor of Sawyer Brothers and awarded $257,154.03 in damages, including $100,000 for the Sawyers' emotional distress. On appeal, Island Transporter challenged both the district court's negligence finding and its damages award. The appellate court found that the district court did not err in finding that the captain was negligent as the weather information available to the captain would have apprised him of a likelihood of rough seas. Additionally, the captain breached his duty of care by failing to utilize the vessel's D-rings to lash down the construction vehicles; and the incident was not caused by two unforeseeable rogue waves. The appellate court agreed with the district court’s holding that, under general maritime law, a plaintiff within the zone of danger could recover for emotional distress, and that a plaintiff facing immediate physical peril or the reasonable apprehension thereof was within the zone of danger. With the exception of one minor damages issue, the appellate court agreed with the district court's well-reasoned decision, including its determination on the issue of first impression in the circuit - that a plaintiff within the zone of danger can recover for negligent infliction of emotional distress in maritime cases. The appellate court therefore affirmed the district court’s judgment in substantial part, vacating only one element of the damages award. District court's damages award for plywood panels vacated; district court's finding of negligence, and its award of damages for the a construction vehicle, lost profits, and emotional distress affirmed. (1st Circuit, April 3, 2018) 2018 U.S. App. LEXIS 8464
US NOT LIABLE FOR KATRINA FLOODING
ST. BERNARD PARISH GOVERNMENT, ET AL. V. UNITED STATES
Saint Bernard Parish Government and various other owners of real property in St. Bernard Parish or in the Lower Ninth Ward of the City of New Orleans (collectively "plaintiffs") brought suit in the Court of Federal Claims ("Claims Court") under the Tucker Act, 28 U.S.C. §1491(a)(1), alleging a taking. They claimed that the government was liable for flood damage to their properties caused by Hurricane Katrina and other hurricanes. Plaintiffs' theory was that the government incurred liability because of government inaction, including the failure to properly maintain or to modify the Mississippi River-Gulf Outlet ("MRGO") channel, and government action (the construction and operation of the MRGO channel). The Claims Court found a taking occurred and awarded compensation. The government appealed, and plaintiffs cross-appealed alleging that the Claims Court's compensation award was inadequate. The appellate court concluded that the government could not be liable on a takings theory for inaction and that the government action in constructing and operating MRGO was not shown to have been the cause of the flooding. This was so because both the plaintiffs and the Claims Court failed to apply the correct legal standard, which required that the causation analysis account for government flood control projects that reduced the risk of flooding. Accordingly, there was a failure of proof on a key legal issue. In this taking action under the Tucker Act, the failure of the government to properly maintain the channel or to modify the channel could not be the basis of takings liability as the property owners' sole remedy for these inactions, if any, was in tort. The property owners failed to present evidence comparing the flood damage that actually occurred to the flood damage that would have occurred if there had been no government action at all. The appellate court reversed the judgment of the Court of Federal Claims. Plaintiffs’ cross-claim was denied as moot. (Federal Circuit, April 20, 2018) 2018 U.S. App. LEXIS 10023
COURT DISMISSES PUNITIVE DAMAGE CLAIMS AGAINST INSURERS (CONT.)
ROBERTS V. INLAND SALVAGE, INC.
Kenneth Roberts contended that he experienced an accident resulting in alleged injuries while employed by Inland Salvage, Inc. Roberts eventually filed a seaman's complaint for damages against Inland Salvage. However, Inland Salvage filed for Chapter 11 bankruptcy prior to Roberts filing his complaint. Roberts was then precluded from maintaining an action against Inland Salvage due to the automatic stay on actions against Inland Salvage during bankruptcy proceedings. Thereafter, Roberts filed an amended complaint, directly naming Inland’s insurers. Roberts dismissed Inland Salvage from his suit, leaving only the insurer-defendants. The insurers then moved for partial summary judgment on Roberts’ punitive damages cause of action, on the grounds that neither of defendants' insurance agreements with Inland Salvage provided coverage for punitive damages. The court concluded that defendants had mounted a successful bid to dismiss Roberts’ punitive damages claims and granted the motion and dismissed Roberts’ claims for punitive damages [see January 2018 Longshore Update]. The insurers then moved for partial summary judgment on Roberts’ unseaworthiness cause of action, contending that Roberts' unseaworthiness claim must be dismissed on two grounds. First, defendants argued that the vessel which Roberts was salvaging at the time of his alleged accident was neither owned nor operated by Roberts' employer, and therefore, Inland Salvage did not owe Roberts a warranty of seaworthiness. Second, defendants argued that no warranty of seaworthiness is owed to Roberts because the vessel being salvaged was not in navigation at the time of Roberts' alleged accident. Roberts conceded that the vessel was not owned or operated by Inland Salvage and was not capable of navigation at the time of the accident at issue. The court agreed that an unseaworthiness claim could not be maintained against defendants. The evidence provided unquestionably showed that defendants' insured, Inland Salvage, never owned or operated the vessel on which the alleged injury took place. Rather, Inland Salvage was providing services to salvage the vessel. For these reasons, an unseaworthiness action could not be maintained against defendants. Defendants' motion for partial summary judgment regarding unseaworthiness was granted as the unseaworthiness cause of action was dismissed with prejudice. (USDC EDLA, April 2, 2018) 2018 U.S. Dist. LEXIS 55699
DISTRICT COURT ERRED IN FINDING SEAMAN STATUS (CONT.)
HALLE V. GALLIANO MARINE SERVICE, LLC, ET AL.
Kyle Halle was employed by C-Innovation as an ROV (remotely operated underwater vehicle) Technician and ROV Supervisor. Halle's work assignments were typically four weeks in duration, involving a 4-week voyage on an ROV support vessel. For each of these voyages, Halle was assigned to a particular ROV support vessel, and ate, slept, lived, and worked aboard that vessel. An ROV crew aboard the vessel would work 12-hour shifts for 7 days a week during the voyage. Crew members were not paid overtime, but were paid a daily rate that was guaranteed whether or not the employee actually worked, such as if they were ill. After his termination, Halle filed suit against his employer, claiming that this pay structure violated the Fair Labor Standards Act, and that his employer owed him overtime pay. Halle sought to recover unpaid overtime wages, liquidated damages, and attorney's fees and costs under the FSLA. Defendant answered the complaint and then moved for summary judgment, arguing that Halle’s work as an ROV Technician and Supervisor was water-based, voyage-based, and vessel-based, and therefore he was a seaman under the FLSA and exempt from its overtime provisions. The court granted defendant's motion [see March 2016 Longshore Update]. After the court denied Halle’s motion for reconsideration [see May 2016 Longshore Update], Halle appealed the decision to the Fifth Circuit. The appellate court found that the record did not support that Halle's work in calculating in coordinates and communicating that information to the captain clearly established that he was a seaman. Therefore, the appellate court held that defendant had not established as a matter of law that the seaman exception applied, and remanded the case to the district court [see May 2017 Longshore Update]. On remand, Halle moved for conditional certification of an opt-in class under the FLSA, alleging that defendant had a uniform pay practice that involved paying ROV workers a day rate with no overtime wages. Halle further alleged that the job duties of the ROV technicians and ROV supervisors were similar and that the day rate applied to both groups. Halle also moved for equitable tolling for potential class members due to the delay caused by defendant's motion for summary judgment. Defendants did not oppose the general class certification of ROV technicians or the request that they be prohibited from communicating with potential class members. However, defendants argued that the class should not include ROV supervisors because Halle did not allege, or mention, supervisors in his complaint, supervisors' jobs are different from technicians so they are not similarly situated, and supervisors are exempt from the FLSA overtime provisions. Defendants also argued that equitable tolling was not appropriate because Halle had not diligently pursued his rights or shown rare and exceptional circumstances. Defendant also argued that it would be prejudiced by equitable tolling because it was not aware of the extent of the proposed class until Halle filed for conditional certification. The court found that Halle had met the requirements for conditional certification. Halle worked for defendant as both an ROV Technician and as an ROV Supervisor. The court found that because supervisors were paid using the same day rate practice they were similarly situated and were part of the same pay plan as technicians. Therefore, the initial class would include ROV supervisors and technicians and after discovery defendants could move to narrow the class if appropriate. Exercising its discretion, the court also found that it was fair to provide some equitable tolling to Halle. During the time that defendants' summary judgment motion was on appeal, the case was effectively stayed and Halle had no opportunity to move forward with the case, including filing a motion for certification of a class. During that period, Plaintiff was prevented from doing so because the court did not have jurisdiction. The court granted Halle’s motion to certify class and equitable tolling. (USDC EDLA, April 12, 2018) 2018 U.S. Dist. LEXIS 62117
AFFIRMATIVE DEFENSE HELD TO BE UNTIMELY
SCOTT V. WEEKS MARINE, INC.
This case arose from injuries John Scott, Jr. allegedly sustained while delivering a package to Weeks Marine, Inc. Scott was employed by UPS as a delivery driver. Scott alleged he was delivering a package of a 500 pound piece of industrial furniture when Weeks’ employee negligently operated a forklift, causing the package to fall on Scott’s hand. Scott filed suit in state court and Weeks removed the case to federal court on the basis of diversity. Weeks timely answered and denied all allegations in Scott’s complaint, also asserting Scott failed to state a cause of action upon which relief can be granted and averring that any injuries were caused by Scott’s own negligence. Scott moved to strike Weeks’ affirmative defense, intentional action. In the proposed pretrial order Weeks mentioned the potential intentional act of Justin Self to injure Scott. Scott alleged that this was the first time Weeks had raised this affirmative defense. The court pointed out that an intentional act defense fells into the category of "fault of others" and was an affirmative defense under Louisiana Code of Civil Procedure art. 1005. Th court found that Weeks had sufficient time to raise such a defense prior to the pretrial order and it was now untimely. However, the Court recognized that it may have some relevance on whether or not Scott could prove Weeks’ negligence based on a respondeat superior theory. To that extent, the intent of the employee may be relevant and admissible. Scott’s motion to strike was granted. (USDC EDLA, April 23, 2018) 2018 U.S. Dist. LEXIS 67770
MOTION IN LIMINE GRANTED WITH RESPECT TO WORK-LIFE EXPECTANCY
NOEL V. INLAND DREDGING COMPANY, LLC, ET AL.
This case arose out of an accident involving Hunter Marine's vessel. Kenneth Noel was a passenger on the vessel when it ran aground. Noel asserted that he was thrown forward by the impact, and other men fell on top of him, allegedly causing him to suffer injuries to his lower back. Noel was on Hunter Marine's vessel in the course of his employment as a seaman with Inland Dredging Company, LLC. Noel filed suit for damages against Inland Dredging and Hunter Marine, alleging that his injuries were caused by defendants' negligence and/or the unseaworthiness of the vessel. Hunter Marine moved to exclude Noel’s vocational rehabilitation expert, Glenn M. Hebert, and plaintiff's economic expert, Dr. G. Randolph Rice. Hunter Marine moves to exclude Hebert's testimony on the grounds that his opinions as to plaintiff's work-life expectancy and future economic loss were unreliable. Hunter Marine further moves to exclude Dr. Rice's testimony because his opinions are based on Hebert's purportedly flawed calculations. Hunter Marine did not challenge the expert qualifications of either witness. In his expert report, Hebert opined that Noel’s disability could be expected to reduce his labor force participation by between 10.1 and 12.3 years, relying on the Gamboa Gibson Worklife Tables, which are created using census data from the Current Population Survey and the American Community Survey. Hunter Marine argued that Hebert's opinion as to Noel’s diminished work-life expectancy is based on unreliable methodology and unsupported by medical evidence. Hunter Marine contended that the Gamboa Gibson data sets were too broad to predict outcomes in individual cases. The court found that, even assuming that the Gamboa Gibson tables accurately reflect the average work-life expectancy of disabled versus non-disabled populations, Noel failed to show that the tables could reliably predict the future work-life expectancy of a specific person. Accordingly, the court found that Hebert's opinion as to Noel’s reduced work-life expectancy was unreliable, and thus inadmissible. However, the court found that Hebert's estimates of Noel’s pre-accident earning capacity were admissible. To the extent that Hunter Marine argued that Noel’s wages at the time of his injury do not accurately reflect his likely future earnings, it could raise those issues on cross-examination. Because Hebert's calculations of plaintiff's pre-injury earning capacity were admissible, Dr. Rice's opinion based on those calculations was also admissible. Hunter Marine's motions in limine were granted in part. The court excluded Hebert's expert testimony as to plaintiff's reduced work-life expectancy. The court further excludes Rice's expert testimony to the extent that it relied on Hebert's work-life expectancy estimate. The motions were otherwise denied. (USDC EDLA, April 23, 2018) 2018 U.S. Dist. LEXIS 67768
PUTATIVE CLASS ACTION ON UNEARNED WAGES DISMISSED
DIXON V. MATSON NAVIGATION COMPANY, INC.
This putative class action arose under admiralty law. Alphonse Dixon alleged he had suffered illness or injury in the service of Matson Navigation Company, Inc.’s vessels on high seas voyages wherefore unearned wages were payable. Dixon proceeded to assert two claims against Matson. First, Dixon claimed Matson wrongfully calculated the amount of unearned wages owed in breach of its general maritime law obligations. Second, Dixon alleged Matson improperly determined the duration of its obligation to pay him unearned wages. Matson moved to dismiss, arguing shipowners are only obliged to pay unearned wages until the end of the voyage. Dixon argued the duration of Matson’s obligation to pay him unearned wages was controlled by Article 5 of the Shipowners' Liability Convention of 1936. The court initially pointed out that the Convention was not an independent source of authority apart from judicial decisions stating the general maritime law. Through the phrase “national laws or regulations,” the Convention includes the rules of court decisions. The maritime law had developed through the centuries in judicial decisions, and the Convention did not reject that body of law and start anew with a complete code. In Vella, the Supreme Court held a shipowners’ obligation to provide "cure," extended until the injured seaman reaches maximum medical improvement. To determine the duration of a shipowner's obligation to pay the unearned wages component of maintenance and cure, the court looked to precedential judicial opinions and the common law reasoning process. In the Ninth Circuit, a shipowner is obliged to pay the seaman's medical expenses until he reaches maximum recovery, or cure, but is only obligated to pay unearned wages for a limited period. The duration of that limited period is determined by looking at the parties' employment contract. Dixon made no reference to the parties' employment contract and relied solely on the Convention as authority for his alleged entitlement to relief. Because the Convention was not enacted to change materially American standards, Count II of Dixon’s complaint was premised on a legal theory contrary to controlling authority. Count II therefore failed to state a claim upon which relief can be granted, and must be dismissed. Matson’s motion to dismiss Dixon’s class action complaint was dismissed with prejudice. (USDC DHI, April 11, 2018) 2018 U.S. Dist. LEXIS 61708
THE CAPTAIN ATTACKED ME WITH A MOORING LINE PLEADS PRO SE CLAIMANT
GRANT V. ENTERTAINMENT CRUISES, INC., ET AL.
Tamea Grant, a deckhand on a cruise ship, proceeding pro se, brought a suit against Entertainment Cruises, Inc., and its subsidiary Spirit Cruises, LLC, alleging that her former captain intentionally struck her with a rope during a docking incident and then denied her medical assistance. The defendants moved for summary judgment, contending that they could not be held liable for the alleged intentional tort. The court initially noted that Grant’s pro se complaint and opposition did not clearly set out her legal theories, but, construing them liberally, the court treated Grant as asserting a Jones Act claim against defendants for both direct negligence and vicarious liability. The court pointed out that, in order to proceed with a direct negligence action, Grant must proffer some evidence from which a jury could infer that defendants were negligent. She had failed to do so and thus could not, as a matter of law, proceed on a direct-negligence claim. However, Grant’s claim could also be interpreted as alleging that defendants were vicariously liable for the tortious acts of the Captain, including both the assault and subsequent refusal of medical care. Just as under common law, an employer's Jones Act "negligence" can extend to intentional torts under the doctrine of respondeat superior if they were committed by an employee in furtherance of the employer's business or the shipowner knew or should have known of the crew member's violent propensities. Nothing in the record suggested that defendants knew or had reason to know of the Captain's supposed violent nature. The latter ground of foreseeability was therefore inapplicable. Grant contended that the alleged assault occurred while trying to dock the boat, an act that clearly furthered defendants' business interests. Given the many frustrations that attend docking (particularly on a cruise ship that frequently serves intoxicated guests), a jury could find that it was "not unexpected" that he would get angry and lash out. There was no evidence that the Captain and Grant had any prior relationship, such that he would have a personal motive to hit her over the head with a rope. But it was plausible that the Captain acted out of exasperation or with an excess of zeal in an effort to hurry up and tie down the ropes. Grant also claimed that she was denied immediate medical assistance causing her injuries to worsen. If the Captain did indeed refuse her medical aid and prevented others from assisting, defendants could be held vicariously liable, particularly since their employee was the cause of her injury. This was a question of fact for a jury to decide. The court denied the defendants’ motion for summary judgment, finding that there were questions of material fact as to whether the Captain hit Grant with the rope, his motivations for doing so, and her access to medical care after the alleged injury. (USDC DC, April 19, 2018) 2018 U.S. Dist. LEXIS 65689
SEAMAN WITH PRIOR BACK PROBLEMS STILL AWARDED BIG DAMAGES
WILLIAMS V. CENTRAL CONTRACTING & MARINE, INC, ET AL.
Timothy Williams attempting to tie together two barges using steel wires. He hooked a ratchet onto a wire in preparation to take up any slack. When Williams used the ratchet to take up the slack, the wire slipped off a deck fitting that it was looped around. As a result, Williams was thrown off-balance and fell, allegedly injuring his back. Williams filed this action against his employer, Central Contracting and Marine, Inc. (CCM) pursuant to the Jones Act and the general maritime law, arising from injuries he allegedly sustained while working on one of CCM's vessels. Williams had a history of back problems before his employment with CCM and made at least two prior claims for back injuries suffered at work. In 2011, Williams applied for disability benefits from the Social Security Administration. In his function report, Williams represented that his back injury affected his ability to lift, bend and sit, and that his back was pretty much shot from all the hard jobs he’d had over the years. CCM hired Williams on October 17, 2014. Williams testified that CCM did not ask any questions regarding his health or physical condition before hiring him. He believed that he was physically capable of performing the work of a deckhand and he was not under any disability at that time. Following a three-day bench trial the court concluded that CCM was negligent in failing to promulgate and enforce adequate safety rules, failing to train its employees with respect to laying wire between barges, and failing to adequately crew the vessel Williams was injured on for the task assigned to Williams. The court further found that CCM had adequate notice of these unsafe conditions and opportunity to correct them. Finally, the court found that CCM's negligence caused or at least contributed to cause Williams' injury. The court found no evidence to support a finding of contributory negligence by Williams. There is no indication that Williams failed to exercise ordinary care in performing the duties asked of him by CCM in accordance with the training and rules he had been provided. The court also found the vessel involved to be unseaworthy, in that it was assigned too few deckhands to safely perform the job Williams was asked to do. The court found that Williams was entitled to maintenance and cure as a result of his injuries, and that he is entitled to recover the unpaid amount of medical bills as cure. Moreover, the court found that Williams's right to maintenance and cure was not compromised by his failure to inform CCM of his prior history of back injuries under McCorpen. It was undisputed that Williams had complained of back pain on a number of occasions prior to the accident and had even received a workers' compensation rating of 11 percent total permanent disability due to back issues. However, there was no indication in the record that Williams intentionally misrepresented or concealed the condition from CCM. Indeed, CCM never inquired as to Williams' medical or injury history. Judgment was entered in the amount of $1,282.270.37 in favor of Williams and against CCM. This award consisted of $87,727 in past lost wages, $11,863 in past lost fringe benefits, future wage loss in the amount of $298,582, future lost fringe benefits in the amount of $131,167, past pain and suffering in the amount of $300,000, future pain suffering in the amount of $200,000, unpaid cure of $216,227.55, and prejudgment interest of $36,703.82. (USDC SDIL, April 3, 2018) 2018 U.S. Dist. LEXIS 56752
MCCORPEN DEFENSE PUT ON HOLD BUT COURT NOTES NO FURTHER LIABILITY
WHITE V. SEA HORSE MARINE, INC.
James Rickey White was employed by Sea Horse Marine, Inc. as the Captain of one of its vessels, when he allegedly suffered an accident resulting in a back injury. White filed suit against Sea Horse, bringing negligence and unseaworthiness claims. As part of his complaint, White sought maintenance and cure. Sea Horse moved for partial summary judgment on White’s claim for maintenance and cure, asserting a McCorpen defense. White opposed the substance of Sea Horse’s motion, arguing that he needed additional time to complete discovery before adequately opposing the motion for summary judgment. White’s medical history was much more extensive than he indicated on his pre-employment forms. During the eleven year time period preceding his pre-employment physical for Sea Horse, White treated with multiple doctors for low back, hip and leg pain. Given the very early stage of the proceedings and White’s desire to conduct certain discovery targeted at Sea Horse’s McCorpendefense, the court concluded that denial of the motion pending further discovery was warranted. The court agreed with Sea Horse that White had access to his medical records all along, but there was no indication that any requests for admission or interrogatories had been exchanged, nor any depositions conducted. Discovery had just barely begun. As it stood, the evidence mustered by Sea Horse and White’s responses to Sea Horse’s statement of material facts suggested that White did not fully and accurately disclose relevant medical history in response to Sea Horse’s written medical questionnaire. But White represented in opposition that discovery may show that his current injuries are new, not related to past injuries, and he disclosed more medical history during his physical than the medical history questionnaire indicates. Without reaching any conclusions about the merits of Sea Horse’s underlying argument about White’s entitlement to maintenance and cure, the court noted that an employer does not incur additional liability when it reasonably declines to make maintenance and cure payments. Sea Horse’s motion for summary judgment was denied without prejudice. (USDC EDLA, April 17, 2018) 2018 U.S. Dist. LEXIS 64911
COURT DISMISSES MOTION AS MOOT AFTER ALLOWING AMENDED COMPLAINT
COMEAUX V. ATOS ORIGIN IT SERVICES, INC., ET AL.
Lori Comeaux brought claims for negligence individually and on behalf of decedent, Melvin A. Comeaux, Jr., under the Jones Act, general maritime law, and Louisiana law, against Halliburton Energy Services, Inc. (HESI) and other defendants. HESI filed the instant motion, arguing that Comeaux’s claims for damages related to the decedent's alleged future medical expenses failed as matter of law because those damages do not exist given the decedent's death. HESI also argued that Comeaux’s claims for non-pecuniary damages failed as a matter of law because those damages are not recoverable by a seaman under the Jones Act or general maritime law. Finally, HESI contended that Comeaux’s claims for punitive damages failed because punitive damages are not recoverable under the Jones Act or general maritime law. Comeaux opposed HESI’s motion to dismiss, asserting that she was not pursuing future medical expenses and contending that heirs of a deceased seaman are entitled to recovery non-pecuniary and punitive damages. Moreover, Comeaux contended that non-pecuniary and punitive damages are available because decedent was not a Jones Act employee of all defendants at all times of his exposure to toxic substances that resulted in his death, nor was he a Jones Act employee of HESI during the entirety of his exposure attributable to their conduct. In the reply, HESI contended that seamen are not entitled to punitive damages under Fifth Circuit law, and to the extent Comeaux was arguing in the opposition that the decedent was not a Jones Act seaman, there was no factual basis to support this allegation in the complaint. With leave of the court, Comeaux filed an amended complaint, alleging additionally and in the alternative, that decedent's work during the relevant time period was not constantly in the capacity as crewman upon defendants' vessels or in the service of those vessels. The court noted that Comeaux had amended her complaint to allege an alternative claim that decedent was not a Jones Act seamen at all times relevant to the claims asserted. In the motion to dismiss, HESI contends that Fifth Circuit law precludes non-pecuniary and punitive damages for seamen. Therefore, the court concluded that, should HESI wish to challenge the amended complaint, it would be more efficient for the court to consider any arguments regarding dismissal in a motion that was better tailored to the causes of action now pending. Accordingly, HESI's motion to dismiss certain claims pursuant to Rule 12(b)(6) was denied as moot. (USDC EDLA, April 4, 2018) 2018 U.S. Dist. LEXIS 57380
COURT FINDS QUESTIONABLE QUESTIONS OF FACT
WEATHERLY V. ACBL RIVER OPERATIONS, LLC.
Teresa Weatherly was employed by AEP River Operations as a cook and was assigned to one of its vessels for approximately two and a half years. Weatherly was scheduled to have twenty-eight days of leave, and was preparing to disembark the vessel when she was allegedly injured. While still in the galley, Weatherly picked up some dishes that were air-drying on the galley's island in order to move them to the galley table. She allegedly slipped on something wet, her leg went out and back behind her, and all the plates broke. And that's when I knew that I had done some damage because I couldn't get up. She did not know what kind of substance she slipped on, how it got there, how long it had been there, or how much of it was there. When she slipped and fell, Weatherly was wearing flip-flops and not the footwear that AEP River Operations required her to wear on the job. Weatherly was removed from the vessel and taken by ambulance to an area hospital, where it was later determined that she had torn her hamstring. After Weatherly was cleared by her doctor to return to work she was assigned, against her wishes, to a new vessel, but only worked on the vessel for around a month because at that time she began to suffer from severe depression. Weatherly testified at her deposition that she felt "betrayed" and "humiliated" because she lost her position on her former vessel. During the period of time between when she was injured and when Weatherly returned to work, she was paid short-term disability (i.e., her normal pay), and testified that she did not lose any pay during that time period. She also testified that she did not personally incur any medical expenses relating to the injury. AEP moved to dismiss Weatherly’s Jones Act negligence, unseaworthiness and maintenance and cure causes of action. Weatherly opposed the motion, arguing that the vessels deckhands, who are responsible for cleaning the galley, were inattentive that morning and failed to do their job. The court also noted that, in essence, the facts with which Weatherly and AEP had presented the court pointed to the principle of "transitory unseaworthiness." The court held that Weatherly’s deposition testimony, pointing to the presence of a substance on the galley floor of the vessel, her slip-and-fall because of that substance, as well as her testimony that the deckhands should have mopped the galley prior to her accident, all combine to create a genuine dispute of material fact as to whether the vessel was unseaworthy at that time, thereby preventing the entry of summary judgment in favor of AEP. Weatherly’s third claim was one for general maintenance and cure. AEP argued in its motion that it had fully discharged its obligation to pay maintenance and cure, and that this claim should therefore be dismissed. In her response, Weatherly merely stated that if AEP would have sought concurrence, she would have concurred on this argument. Consequently, AEP was entitled to summary judgment on this claim. AEP’s motion was denied as to Weatherly’s claims for negligence under the Jones Act and unseaworthiness, and granted as to Weatherly’s claim for maintenance and cure. (USDC WDKY, April 6, 2018) 2018 U.S. Dist. LEXIS 59048
LOSS OF CONSORTIUM CAUSE OF ACTION ALLOWED TO PROCEED
VAN HORN V. CHUBB INSURANCE COMPANY, ET AL.
Muriel Van Horn served as a volunteer race official for a sailing regatta held on a lake. She boarded a boat operated by David Rubin to be transported to her official's position. Rubin suddenly accelerated the vessel over the swells of the lake, causing the boat to leave the water's surface, assume a nearly vertical position in the air, and slam back down onto the water. This incident allegedly caused Van Horn to fracture her right tibial plateau, requiring major surgery and continuing medical care. Van Horn and her husband sued for damages under general maritime law and under Louisiana law in supplement to general maritime law, alleging that her injuries were caused by Rubin's negligence and by the negligence of the regatta organizers, the United States Optimist Dinghy Association, Inc. (USODA) and the Southern Yacht Club (SYC). Van Horn’s husband asserted a claim for loss of consortium and society. Progressive Security Insurance Company, Chubb Insurance Company, and Federal Insurance Company allegedly provided liability insurance to Rubin, USODA, and SYC, respectively. Progressive moved to dismiss the claim for loss of consortium and society, arguing that claim must be dismissed because damages for loss of consortium are not available under the general maritime law in personal injury cases. Plaintiffs acknowledged that the family members of Jones Act seamen cannot recover for loss of consortium. But plaintiffs contend that such damages are available to the spouse of a non-seafarer injured in territorial waters when authorized by state law. Given the absence of conflict between state remedies and federal law, and the clear trend toward consistent treatment of maritime personal injury and wrongful death actions, the court found that Yamahawas applicable to personal injuries within territorial waters. Accordingly, Louisiana law governing loss of consortium damages may supplement general maritime law with regard to personal injuries of non-seafarers in territorial waters. Progressive’s motion to dismiss was denied. (USDC EDLA, April 3, 2018) 2018 U.S. Dist. LEXIS 56587
FOREIGN SEAMEN CLASS ACTION AGAINST SHIPPING COMPANIES (CONT.)
DZIENNIK, ET AL. V. SEALIFT, INC., ET AL.
Sylvester Dziennik, Mieczyslaw Kiersztyn, and Ferdynand Kobierowski, individually and on behalf of all persons similarly situated (collectively, Class Plaintiffs), brought this class action against Sealift, Inc. Fortune Maritime Inc., Sagamore Shipping, Inc., and Victory Maritime, Inc. (collectively, Defendants) alleging violations of federal maritime law, specifically, sections 10313 and 11107 of the Seamen's Wage Act. Class plaintiffs worked as seaman aboard U.S. flag vessels under the control of one or more of the defendants. The class is composed of 209 seafaring employees, 113 of whom are Polish citizens and 96 of whom are Filipino citizens, employed on defendants’ vessels during various periods since January 1, 1999. Class Plaintiffs sought recovery of unpaid wages, overtime wages, and statutory penalties from defendants under employment contracts and federal maritime law [see July 2007 Longshore Update]. Class Defendants moved for partial summary judgment on the meanings of the terms "engaged" and "engagement," as used in 46 U.S.C. § 11107, which states that, an engagement of a seaman contrary to a law of the United States is void. A seaman so engaged may leave the service of the vessel at any time and is entitled to recover the highest rate of wages at the port from which the seaman was engaged or the amount agreed to be given the seaman at the time of engagement, whichever is higher. The parties do not dispute that the Class Plaintiffs were hired and signed employment contracts at two foreign ports. The parties disagree, however, on whether the signing of employment contracts constitutes an "engagement" and whether the Class Plaintiffs were engaged at the time and place of hire, as those terms are used in 46 U.S.C. § 11107. Defendants contend that the terms should be given their plain and ordinary meaning, which is "to hire" or "to employ, and plaintiffs argue that such an interpretation creates an absurd result, and that the place of embarkation, not the port of hire, is where a seaman is engaged. The court found that "engage" and "engagement" have their plain and ordinary meaning and the Class Plaintiffs were engaged at their port of hire. Defendants' motion for partial summary judgment was granted. Accordingly, the court found that the terms "engage" and "engagement" have their ordinary meaning, and the "port of engagement" refers to the port of hire. Defendants engaged Class Plaintiffs in Manila, Republic of the Philippines, and Gdynia, Poland. (USDC EDNY, March 30, 2018) 2018 U.S. Dist. LEXIS 59211
QUESTIONS ABOUT TRANSFER AUTHORITY PRECLUDE SUMMARY JUDGMENT
HICKS, ET AL. V. BP EXPLORATION & PRODUCTION, INC., ET AL.
Robert Hicks alleged that he was injured during a personnel basket transfer between an offshore platform on the Outer Continental Shelf hat was owned and operated by BP Exploration and Production Inc., and a vessel time chartered by BP Exploration that was being used at the time as living quarters for some of the platform’s workers. After Hicks filed suit, BP moved for summary judgment, contending that Hicks’ claims should not proceed to trial, because Hicks failed to come forward with any evidence that any alleged act of negligence by workers involved in the transfer breached a standard of care or actually caused his injury and because the claims against BP based on any alleged negligence from the platform should be dismissed on the basis of the independent contractor defense, Finally, BP maintained that it did not breach any duties of a time charterer. At the time of the alleged incident involving Hicks, BP had in place a detailed "lifting assurance plan" governing personnel basket transfers to and from the platform. According to the plan, the platform’s Offshore Installation Manager (OIM), the highest ranking individual on the platform and a BP employee, had the overall responsibility for the coordination and operation of personnel transfer operations. When asked at his deposition whether he would on his own decide to conduct transfers differently than BP had specified in their plan, unless he had gotten BP's approval, the captain of the time chartered vessel involved in the incident testified that he would not. After reviewing the parties' submissions and the applicable law, the court concluded that summary judgment in the BP’s favor was not appropriate. Based on the record before it, the court concluded that genuine disputes of material fact existed concerning whether BP usurped the traditional control that was retained by the vessel's crew in a time charter situation. Therefore, the court denied summary judgment to BP on time charterer liability. (USDC EDLA, April 19, 2018) 2018 U.S. Dist. LEXIS 65890
SHORT AND POINTED DENIAL OF SUMMARY JUDGMENT MOTION
BLANE V. SHELL OIL COMPANY, ET AL.
Barry Blane allegedly sustained injuries while he was working aboard a vessel owned by Arctia Offshore, Ltd. At the time of the alleged incident, Blane was employed by EPS Cargo Handlers as a lead rigger. The vessel was supplied by Arctia via a Master Time Charter with Shell Offshore, Inc. to aid Shell with marine oil field support and transportation services. Shell separately contracted with Safety Management Systems, LLC (SMS) to provide a safety representative aboard the vessel throughout the voyage. Blane alleged in his complaint that he injured his back and neck while lifting a heavy cable. He sought damages for lost earnings, lost earning capacity, past and future medical expenses, and physical and emotional pain and suffering and loss of enjoyment of life. SMS moved for summary judgment. The court found that two central factual questions remained in dispute necessitating the presence of SMS as a co-defendant in the case. The safety representative was assigned to the vessel by SMS. His duty and responsibility regarding safety on the vessel and the duty and responsibilities of SMS in relationship to Shell were issues that remained in dispute. Thus, taking all facts in a light most favorable to co-defendant Artica, the motion for summary judgment was denied. (USDC DAK, April 20, 2018) 2018 U.S. Dist. LEXIS 67131
COURT REFUSES TO VACATE ARBITRAL AWARD ON PUBLIC POLICY GROUNDS
CORVO V. CARNIVAL CORPORATION
Sladjana Cvoro, a seafarer, requested the court to vacate an arbitral award as void against public policy because the arbitrator applied Panamanian law. In so doing, the arbitrator precluded Cvoro from asserting a Jones Act claim against her employer Carnival Corporation for vicarious liability. Under the Jones Act, Cvoro claimed Carnival was vicariously liable for the negligence of the shore-side physicians it hired to treat her carpal tunnel syndrome. Panamanian law does not recognize that cause of action, and instead requires she show that Carnival itself was negligent in hiring the shore-side physicians. Panamanian law also provides other avenues of relief, such as disability benefits. The arbitral award indicates that Cvoro did not pursue those potential avenues and therefore, the arbitrator did not award her a remedy. Having reviewed the distinctions between Panamanian and U.S. law, this court declined to find it necessary to vacate the arbitral award as void as against public policy. Cvoro’s mere inability to arbitrate her Jones Act claim did not in and of itself mean the award is unenforceable as against public policy. The question, rather, is what claims could Cvoro assert under Panamanian law and were those remedies under Panamanian law so inadequate that enforcement would be fundamentally unfair. Accordingly, the Convention's public policy defense did not require the court to vacate the arbitral award. The petition to vacate the arbitral award was denied. (USDC SDFL, April 4, 2018) 2018 U.S. Dist. LEXIS 57836
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