July 2018
Notes From Your Updater: On June 5, 2018, Representative McEachin (D-VA) introduced a bill (H.R. 6008) to amend the Outer Continental Shelf Lands Act to withdraw the outer Continental Shelf in the Mid-Atlantic planning area from disposition, and for other purposes. Representative McEachin also issued a press release explaining the measure.
The Office of Workers’ Compensation Programs has issued a Final Rule governing the Black Lung Disability Trust Fund’s payment of medical benefits under the Black Lung Benefits Act. The final rule adopts modern payment formulas for physicians, hospitals and other providers that are derived from the formulas used in the Medicare program. These formulas are also similar to those used by other OWCP programs (e.g., Federal Employees Compensation and Energy Employees Occupational Illness Compensation programs); codifies the black lung program’s current practices for the payment of prescription drugs and the submission of medical bills for payment; provides greater clarity about fees paid to providers, which should speed processing and payment of benefits as well as make it easier for the Trust Fund to obtain reimbursement from coal companies; and prohibits providers from seeking additional payments from miners for covered services that have been paid by the Trust Fund. The regulations will be effective August 31, 2018.
On June 20, 2018, the Ninth Circuit Court of Appeals denied a request from petitioner to publish the case of Colaruotolo v. SSA Containers, Inc., et al. 2018 U.S. App. LEXIS 16734 [see May 2018 Longshore Update].
ALJs ARE UNITED STATES OFFICERS SUBJECT TO THE APPOINTMENTS CLAUSE
LUCIA, ET AL. V. SECURITIES AND EXCHANGE COMMISSION
This decision by the United States Supreme Court impacts administrative law judges serving in the Department of Labor who adjudicate claims under the Longshore and Harbor Workers’ Compensation Act and the Defense Base Act. Citing Freytag’s the Court held that the Commission’s ALJs, like the Tax Court’s special trial judges (STJs) , hold a continuing office established by law. SEC ALJs receive a career appointment to a position created by statute, and they exercise the same significant discretion when carrying out the same important function as STJs do. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. The Commission’s ALJs, like the Tax Court’s STJs, “take testimony,” “conduct trials,” “rule on the admissibility of evidence,” and “have the power to enforce compliance with discovery orders.” So point for point from Freytag’s list, SEC ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries. Moreover, at the close of proceedings, SEC ALJs issue decisions much like that in Freytag. STJs prepare proposed findings and an opinion adjudicating charges and assessing tax liabilities. Similarly, the Commission’s ALJs issue initial decisions containing factual findings, legal conclusions, and appropriate remedies. And what happens next reveals that the ALJ can play the more autonomous role. In a major Tax Court case, a regular Tax Court judge must always review an STJ’s opinion, and that opinion comes to nothing unless the regular judge adopts it. By contrast, the SEC can decide against reviewing an ALJ’s decision, and when it does so the ALJ’s decision itself “becomes final” and is “deemed the action of the Commission. The Court also found that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief. Lucia made just such a timely challenge. And the “appropriate” remedy for an adjudication tainted with an appointments violation is a new “hearing before a properly appointed” official. The Court held that official could not be the same ALJ that originally heard Lucia’s case, even that ALJ had subsequently received a constitutional appointment. (US Sup. Ct., June 21, 2018) 2018 U.S. LEXIS 3836
Updater Note: How does this opinion impact ALJs serving in the Department of Labor who adjudicate claims under the Longshore and Harbor Workers’ Compensation Act and the Defense Base Act? The same rationale applies to the manner of appointment of DOL ALJs as exists in the SEC. The Supreme Court’s ruling means that any matter under the LHWCA or DBA considered by an ALJ not constitutionally appointed by the President or the Secretary of Labor could be rendered void by a dissatisfied party. For any Decision & Order that is not yet final, an aggrieved party can seek to have that Decision & Order vacated as having been issued by an unconstitutional trier of fact. Presuming that the Secretary of Labor will now constitutionally re-appoint the sitting DOL ALJs, any such claim would have to be re-tried before a different, untainted ALJ. This has the potential to literally clog the already crowded dockets of ALJs adjudicating claims under the LHWCA and DBA, causing even greater delays in finalizing claims. This decision will apply to all DOL ALJs and if the issue is raised while a case is pending currently it will apply to those cases as well. It is commonly thought that the DOL ALJs lack the requisite independence from the Department and accountability to the public to perform their adjudications fairly and without bias. The Supreme Court did not decide how accountability can be preserved without a significant change in the removal rules for ALJs as well . Justice Breyer’s concurrence addresses that . A resolution is yet to come. But for now if requested a new trial with a new judge who is properly appointed should be available.
I HAVE HEADACHES, AND MANY OTHER MALADIES, AND I CAN’T WORK
CELLA V. CARGOTEC SERVICES USA, ET AL.
Marc Cella worked as a longshoreman in the Port of Tacoma, Washington, for many years. During his employment with Cargotec Services USA, Cella allegedly suffered a series of work and non-work related injuries. Cella contended that his work-related injuries caused him permanent total-disability and to stop working. Cella filed a LHWCA claim seeking from his employer, Cargotec and its insurance carrier. An ALJ rejected Cella’s permanent disability claim and, instead, awarded Cella compensation for temporary total disability from the date of his second work injury through the date of maximum medical improvement determined by Cella’s treating orthopedist. The ALJ's award was affirmed by the Benefits Review Board. This appeal followed. The appellate court reviewed the record and found that the ALJ determined that Cella lacked credibility due to his inconsistent, unsubstantiated, and exaggerated reporting of medical symptoms. The appellate court concluded that the ALJ's credibility determination, including his decision to discount Cella’s subjective reporting of medical symptoms, neither conflicted with the clear preponderance of the evidence nor was it inherently incredible or patently unreasonable. Cella’s description of one of the work incidents also differed substantially from accounts provided by other witnesses. Finally, Cella admitted that his memory of past medical visits and missed work was weak. Based on this evidence, the appellate court declined to disturb the ALJ's decision to find Cella not credible. The appellate court also found that the ALJ did not err by discounting medical opinions of one of Cella’s treating physicians, which were based on Cella’s subjective reporting of symptoms. Finally, the appellate court found that the ALJ's finding that Cella reached MMI was also supported by substantial evidence in the record. The Board properly rejected Cella’s contention that the ALJ erred by not addressing a claim for work-related headaches caused by the work incidents. Cella failed to properly submit notice that he claimed headaches as an injury for which he sought compensation. The judgment of the Board was affirmed. (9th Cir, June 19, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 16499
GILLELAN UNABLE TO SWAY THE NINTH CIRCUS ON OCCUPATIONAL CLAIM
KELLISON V. DUTRA GROUP, ET AL.
Jack Kellison alleged orthopedic and respiratory injuries sustained during his life-long career as a waterfront pile driver. He settled with all of his former employers except the last in time, Dutra Group. Following a formal hearing and having considered all of the evidence, the ALJ issued a 92-page opinion denying the majority of Kellison’s claims. Kellison had made claims for five orthopedic injuries (lumbar spine, cervical spine, bilateral shoulders, bilateral knees, and left hip), a pulmonary injury diagnosed as COPD, and a hearing loss. The ALJ found that Kellison’s entire period of employment was covered by the Longshore Act. I also find that Claimant timely noticed and filed claims for his alleged injuries, but that Kellison failed to carry his burden of showing that the orthopedic injuries or COPD arose out of employment or were caused by his employment. Though Kellison was entitled to the §20(a) presumption for each, the ALJ found that Dutra had successfully rebutted that presumption for those injuries. Upon examination of the record as a whole, Kellison failed to show that his work at Dutra caused, contributed, aggravated, or accelerated his orthopedic injuries or his COPD. The ALJ did find that Kellison had shown that he suffered industrial hearing loss and I find that Dutra was responsible for an 18% rating for binaural hearing loss compensated as a scheduled permanent partial disability. We have jurisdiction over Kellison's petition under 33 U.S.C. § 921©, and we affirm. Kellison appealed the ALJ’s decision and the BRB affirmed the decision in all respects, finding that the ALJ’s findings were rational and supported by substantial evidence. Kellison petitioned for review of the BRB’s order affirming the ALJ’s decision, insists that the ALJ's ultimate findings were irrational because she found that while Kellison's orthopedic injuries pre-existed his employment at Dutra and were exacerbated by his post-Dutra exercise, his intervening work at Dutra did not aggravate, accelerate, or contribute to them. The appellate court found that the ALJ's factual determination that Kellison’s COPD was not an occupational disease because Kellison failed to show the work environment had a peculiar degree of exposure was supported by substantial evidence. Second, as determined by the ALJ, there were no records of Kellison having respiratory problems between February 2009 and 2011. And, by the time he left Dutra, Kellison's respiratory symptoms had actually improved. The weight of the evidence therefore did not support Kellison's aggravation argument. Moreover, even if the competing medical opinions were in equipoise, as to whether Kellison's work at Dutra aggravated his COPD, that was not sufficient for Kellison to meet his burden. The decision of the BRB was affirmed. (9th Cir, June 11, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 15660
DOHSA IS NOT THE EXCLUSIVE REMEDY IN FLORIDA
KIPP V. AMY SLATE'S AMORAY DIVE CENTER, INC., ET AL.
Steven Kipp was working as crew on a scuba dive charter boat owned and operated by Amy Slate's Amoray Dive Center, Inc. and captained by Edward Hall. One evening, the vessel took customers for a night dive. When adverse currents swept some surfacing divers as far as a half mile away, Kipp snorkeled out to shepherd them back to the boat. While doing so, Kipp suffered a heart attack and died. Kipp's widow filed suit, on behalf of herself and their children against the dive center and the captain of the vessel, claiming Jones Act negligence, unseaworthiness, state tort negligence and DOHSA claims against the dive center and the captain. The dive center and the captain each filed motions to dismiss contending the cause of action was controlled by DOHSA because the death occurred more than three nautical miles from shore. In response, Kipp argued that DOHSA did not apply because, as the complaint alleged, the death took place within Florida's territorial waters that extend beyond three nautical miles to the western edge of the Gulf Stream. The trial court took judicial notice that the wreck was located approximately 6.5 nautical miles from shore and granted the motions to dismiss because the death occurred more than three nautical miles from the coast and therefore was subject to DOHSA. In dismissing the complaint, the trial court held DOHSA provided an exclusive remedy available only in federal court and therefore the court was precluded from reaching the merits of the remaining issues. Kipp timely appealed. The central issue addressed by the appellate court concerned whether DOHSA applied to a death that occurred more than three nautical miles from the coast of Florida, but still within Florida's territorial waters. On one hand, DOHSA expressly applies to deaths on the high seas more than three nautical miles from the shore of the United States. On the other hand, DOHSA by its plain terms, does not affect the law of a State regulating the right to recover for death, and it does not apply to waters within the territorial limits of a State. For most coastal states, these two provisions do not conflict because their territorial waters do not extend beyond three nautical miles. But Florida's Atlantic boundary extends to three miles from the coast or to the shoreward edge of the Gulf Stream, whichever is greater, and the shoreward edge of the Gulf Stream often runs seven or more nautical miles from the coast. Congress ratified Florida's unusual boundaries, including its territorial waters, when it approved Florida's 1868 Constitution and re-admitted Florida to full representation in the House and Senate in the aftermath of the Civil War. With this background in mind, the appellate court considered whether Congress, by the plain language employed in the DOHSA text, intended to limit Florida's wrongful death remedy to less than Florida's entire territory. The appellate court read DOHSA §30302 as establishing a general rule and §30308 as providing specific exceptions. These two sections, read in pari materia, provide that DOHSA applies to deaths more than three nautical miles from shore except within the territorial limits of a State where it otherwise would affect the law of a State regulating the right to recover for death. A contrary reading -- that the three-mile limit applies regardless of whether it eliminates a state wrongful death remedy within the territory of a state -- would render the express provisions of section 30308 meaningless because there would be no circumstances where the provisions of section 30308 would apply. The appellate court was not persuaded by the cases cited by the Dive Center and Captain Hall because in those cases the states had no recognized claim to waters outside the three nautical miles where DOHSA's jurisdiction begins. Based upon the foregoing, the appellate court reversed the trial court's ruling that the case was governed by DOHSA because that determination depended on whether the decedent’s death occurred in Florida's territorial waters. In turn, that determination depended on whether the decedent’s death occurred on the landward side of the edge of the Gulf Stream, a factual issue that could not be resolved on a motion to dismiss given the allegations in the complaint. (Fla. 3rdApp. Ct, June 6, 2018) 2018 Fla. App. LEXIS 7847
TRIAL COURT ERRED IN IGNORING JURY’S BORROWED SERVANT FINDING
FREDIEU V. W&T OFFSHORE, INC.
In this appeal, Wesley Fredieu challenged the trial court's take-nothing judgment following a jury trial in connection with an injury he allegedly sustained while working on an offshore platform. The jury found that W&T Offshore Inc.'s negligence proximately caused Fredieu's injury and awarded damages totaling more than $1.7 million. The jury answered "No" to a question asking whether Fredieu was W&T Offshore's "borrowed employee" at the time of the injury. The trial court signed a take-nothing judgment after disregarding the jury's "No" answer to the borrowed employee question; determining that Fredieu was W&T Offshore's borrowed employee as a matter of law; and concluding that "the borrowed-employee doctrine applied and barred Fredieu's tort claims because Fredieu's sole remedy as W&T Offshore's borrowed employee is to pursue compensation benefits under the LHWCA. The appellate court reversed the trial court's take-nothing judgment because disputed fact issues pertaining to Fredieu's status precluded a matter-of-law determination that Fredieu was W&T Offshore's borrowed employee. It was the jury's province to resolve these fact issues, and the jury did so by answering "No" to the charge question asking whether Fredieu was a borrowed employee at the time of his injury. Legally sufficient evidence supported the jury's "No" answer. Additionally, legally and factually sufficient evidence supported the jury's award for future lost earning capacity based on Fredieu's physical limitations following his injury. Notwithstanding a vigorous dissent from Judge Frost, the appellate court reversed the trial court's judgment and remanded for entry of judgment in Fredieu's favor. (Tex. 14th App. Ct., June 26, 2018) 2018 Tex. App. LEXIS 4659
NO DUTY OWED BEYOND THE EXERCISE OF REASONABLE CARE
FORNAH V. SCHLUMBERGER TECHNOLOGY CORPORATION
Following an offshore accident John Fornah filed his tort suit in federal district court against multiple defendants, all of whom settled and were dismissed from the suit, except Schlumberger Technology Corporation. Chevron Corporation hired Schlumberger to assist in a plugging and abandonment project on the Outer Continental Shelf. Chevron also hired Tetra Applied Technologies, LLC to assist with the project. Fornah was employed by Tetra as a rigger, who allegedly injured his back and shoulder. Schlumberger moved for summary judgment on grounds that Schlumberger and Tetra were co-independent contractors of Chevron, that Schlumberger exercised no supervisory or operational control over Tetra personnel, and that Schlumberger owed no duty to Fornah besides that of ordinary care and did not breach that duty. The district court determined that Fornah's negligence claims were governed by Louisiana law. The district court then conducted a duty-risk analysis and concluded that, because Schlumberger and Tetra were co-independent contractors, Schlumberger did not have a duty to protect Tetra's employee, Fornah, and because Schlumberger owed no duty, it could not be in breach. The district court granted Schlumberger's motion for summary judgment and dismissed Fornah's suit with prejudice. Fornah filed a timely appeal, arguing that Schlumberger maintained operational control, at least in part, of the specialized coiled tubing operations in which Fornah participated. Fornah claimed that his assertion was supported by the affidavit of a former Tetra supervisor. Fornah also claimed that facts were in dispute as to whether Schlumberger was responsible for staffing the task of guiding the coiled tubing hoses that Fornah was handling when he was allegedly injured. He concluded on these grounds that summary judgment was improperly rendered and that this court should reverse and remand. The appellate court disagreed, concluding that the district court properly applied Louisiana law to Fornah's negligence claims. Both Tetra and Schlumberger were independent contractors of Chevron and Fornah was employed solely by Tetra when he was allegedly injured. There were no Schlumberger employees or supervisors in the area where Fornah was working at the time of the alleged incident. Fornah never asked for help or additional crewmen from anyone since he believed he could handle the job alone and because the other nearby Tetra employees looked busy. Although Tetra and Schlumberger, as independent contractors hired by Chevron, worked simultaneously to fulfill their contractual individual duties owed to Chevron, there was no evidence that Schlumberger personnel supervised Tetra employees at any point. For these reasons, the appellate court agreed with the district court that Fornah failed to produce evidence supporting his argument that Schlumberger owed a duty to Fornah, or any Tetra employee, beyond the exercise of ordinary care that is owed to the public generally. The district court's summary judgment in favor of Schlumberger was affirmed. (5th Cir, June 5, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 15062
COURT FIND GRANTS RAILROAD BRIDGE WORKER MEETS LHWCA SITUS TEST
MUHAMMAD V. NORFOLK SOUTHERN RAILWAY CO.
Kenneth Muhammad was working with Norfolk Southern Railway Company's carpenter gang deconstructing, removing, and installing bridge ties. Norfolk Southern owns the bridge, which crosses over the Elizabeth River, and is considered a maritime employer. While performing his duties on the bridge, Muhammad had to cross a wooden "catwalk" walkway platform, a portion of which gave way under Muhammad. During this incident, Muhammad was hit in the head with at least one beam from the bridge, and allegedly suffered injuries to his knees, and spinal injuries. Muhammad eventually had knee surgery as a result of the incident. Muhammad filed suit pursuant to the Federal Employers' Liabilities Act (FELA),claiming that Norfolk Southern was negligent. Norfolk Southern moved to dismiss, because the court lacked subject matter jurisdiction over Muhammad’s claim and the LHWCA had exclusive jurisdiction for Muhammad’s claim rather than the FELA. The court began by noting that, prior to the 1972 LHWCA amendments, bridge construction and demolition workers employed over navigable waters were covered under the LHWCA. Additionally, the Fourth Circuit held that a plaintiff working over navigable waters on a bridge designed in part as an aid to navigation, is engaged in maritime employment, and is therefore an employee within the meaning of the LHWCA. The United States Coast Guard declared that the waters flowing under and past the bridge are navigable and the bridge opens on signal during Coast Guard mandated hours to facilitate and aid the safe navigation of maritime traffic under the bridge. Muhammad argued that the FELA provides the remedy for his injuries versus the LHWCA, contending that although the bridge is over navigable waters, it is not “upon" navigable waters within the meaning of the LHWCA. Specifically, the bridge is erected on the subsoil and attached to the banks, and he suffered injuries while working on an "extension of land" over navigable waters. Ultimately, Muhammad contended that the facts do not provide sufficient evidence to satisfy the "situs" requirement under the LHWCA. While Muhammad acknowledged that his railroad maintenance work clearly satisfied the maritime employment requirement under LHWCA, because the facts do not satisfy the "situs" requirement, Muhammad argued that the court does not need to address the "status" requirement and he was entitled to pursue his FELA remedy. The court pointed out that the LHWCA's use of the word "upon" navigable waters did not exclude employees working "over" navigable waters. The "situs" requirement includes employees working over navigable waters on bridges designed as an "aid to navigation." Specifically, railroad maintenance employees that work on the bridge facilitate and safely aid in the navigation of the maritime traffic under the bridge by ensuring the bridge functions properly through repairing and renovating the bridge as necessary. Therefore, the court held that Muhammad’s claim satisfied the "situs" requirement because his injury occurred over navigable water. The court also concluded that Muhammad's claim satisfied the "status" requirement because his injuries occurred at a time where Muhammad was engaged in maritime employment. Because the LHWCA provided the exclusive remedy for Muhammad’s claim, the court found that it did not have subject matter jurisdiction to proceed. Norfolk Southern’s motion to dismiss was granted based on the court's lack of subject matter jurisdiction over Muhammad’s complaint. (USDC EDVA, June 13, 2018) 2018 U.S. Dist. LEXIS 100250
COURT ADDRESSES OCSLA BORROWED SERVANT CLAIMS (CONT.)
WASHINGTON V. FIELDWOOD ENERGY LLC
Donald Washington alleged that he was injured when he slipped and fell on unsecured stairs while carrying steaks. while working aboard an oil and gas production platform located on the Outer Continental Shelf. Washington was a cook employed by Taylors International, and assigned to the platform. Washington filed suit, alleging that Fieldwood Energy LLC and Fieldwood Energy Offshore LLC were liable to him under the OCSLA, as the owner/operator of the platform. In addition, Washington alleged that Wood Group PSN, Inc. was vicariously liable to him for the negligence of its employees, arguing that an employee of Wood Group working as a production operator on the platform, had prior knowledge that the stairs on which he fell were unsecured but nothing was done to repair them. Fieldwood moved for summary judgment, arguing that Washington was a borrowed employee of Fieldwood and thus his exclusive remedy was under the LHWCA. After examining the evidence and considering all of the Ruizfactors, the court concluded that all but factors one, two, and three weighed in favor of a borrowed employee finding. Factors one and three, however, presented material issues of fact such that summary judgment would be inappropriate. A determination of control and the parties' understanding was best left to the fact finder at trial. Fieldwood’s request for summary judgment on the borrowed employee issue was denied [see September 2017 Longshore Update]. Fieldwood immediately file a second motion for summary judgment or, alternatively, for reconsideration. Fieldwood argued that the court erred in dismissing Washington’s claims against Wood Group after holding that its employee was the borrowed employee of Fieldwood, arguing that Louisiana tort law applied to this issue through OCSLA and the lending employer is solidarily liable with the borrowing employer for the torts of the borrowed employee. Wood Group argued that the reasoning of Morgan was no longer sound in light of the Louisiana legislature's amendment abolishing solidary liability between joint tortfeasors. However, court found that the 1996 amendments had no effect on the relationship between employees and employers, and there was therefore no reason why such would invalidate the holding in Morgan. Accordingly, Wood Group failed to convince the Court that the rule of Morganshould not apply to this case through OCSLA. Morgan held that a lending employer is still liable to an injured third party for the torts of the borrowed employee. Accordingly, Wood Group could still be vicariously liable for the negligence of it nominal employee. Therefore the court reversed its dismissal of Wood Group and reinstated Washington’s claims against it [see February 2018 Longshore Update]. Liberty Mutual Insurance Company intervened in the case, seeking recovery of the amounts it paid out on behalf of Washington as the LHWCA insurer for Taylors. In deciding previous motions, the Court found that there were material issues of fact as to whether Washington was a borrowed employee of Fieldwood. However, it found that Justin Roberts was a borrowed employee of Fieldwood but declined to dismiss Washington’s vicarious liability claims against Roberts's nominal employer Wood Group. Fieldwood subsequently settled with Washington, and only Washington’s and Liberty’s claims against Wood Group remained. Wood Group moved for summary judgment, holding that its employee Justin Roberts could not be found to have been negligent because he did not owe or breach a duty to Washington. Wood Group further argued that Liberty’s subrogation claims should be dismissed because it waived subrogation in the Master Service Agreement between Taylors and Fieldwood. Washington argued that Roberts had a duty to discover and correct the unsafe condition of the unsecured stairs that caused his accident. The court found that Washington had not produced any evidence that Roberts had a duty to inspect all of the steps on the platform, and Roberts expressly testified that inspecting the structural aspects of the platform was not part of his regular duties. Further, the duty of reasonable care does not encompass a duty to eliminate a preexisting unsafe condition present on a work site over which the independent contractor does not exercise control. The court held that Washington had failed to establish that Roberts owed him a duty that was breached, and therefore, could not show that Roberts was negligent or that Wood Group was vicariously liable for that negligence. Wood Group's motion for summary judgment on Washington’s claims was granted. Wood Group's motion for summary judgment regarding Liberty’s claim was denied as moot. Washington claim was dismissed with prejudice. (USDC EDLA, June12, 2018) 2018 U.S. Dist. LEXIS 98813
COURT DISMISSES ALL CLAIMS AGAINST NOMINAL EMPLOYER
ANGELLE V. SPARTAN OFFSHORE DRILLING LLC
Peter Angelle, an alleged Jones Act seaman, allegedly sustained injuries while employed by Gordon Reed & Associates (GRA). Angelle was working as a filtration operator a jack-up rig and asserted that while he was checking the filtration unit on the vessel, when he tripped on a packer stem sticking out of a pallet near the filter unit, fell onto a hand rail, lost his footing, and subsequently fell to the vessel deck. Angelle claimed that as a result of the incident, he allegedly suffered injuries to his lumbar and cervical spine, right shoulder and connective joints, tissues, and nerves, which required medical care, treatment, and possibly surgery. At the time of the incident, Angelle was assigned to a jack-up drilling vessel, which was owned, operated, and controlled by Spartan Offshore Drilling, LLC. Angelle initially brought his action under the Outer Continental Shelf Lands Act, but later amended his complaint to assert claims under general maritime law and the Jones Act. Angelle claimed that his injuries were caused by the negligence of Spartan in failing to provide a safe work place free of unreasonably dangerous hazards, and the unseaworthiness of the jack-up rig. Angelle asserted concurrently that GRA violated its duty to provide him with a safe work place free of unreasonably dangerous hazards. Defendants denied all claims alleged by Angelle except to admit their status for jurisdictional purposes and to admit Angelle was assigned to work on the jack-up rig. GSA moved to dismiss all claims against it, arguing that Angelle was not a Jones Act seaman. Angelle did not oppose the motion. Accordingly, the court will granted the motion as uncontested, and for good reason because Angelle had not worked aboard a vessel or fleet of vessels for sufficient time to satisfy the status requirement of the Jones Act. Accordingly, all claims against GSA were dismissed with prejudice. (USDC EDLA, June 18, 2018) 2018 U.S. Dist. LEXIS 101372
COURT HOLDS WAIVER OF SUBROGATION IS ENFORCEABLE
LEBLANC V. APPLIES TO PANTHER HELICOPTERS, INC. ET AL.
This case involved recovery of a Longshore lien against third-party litigation. Nichalos Miller, Harvis Johnson, Jr., and Marvin Peter Leblanc, Jr.'s (collectively, plaintiffs) moved for summary judgment to prevent Signal Mutual Indemnity Association, Ltd. From recovering its LHWCA lien, for benefits paid on behalf of Wood Group, contending that Wood Group had waived Signal’s right to subrogate against them. Signal is Wood Group's insurer. Wood Group's insurance policy with Signal states in pertinent, Wood Group may waive Signal's rights of subrogation under Rule 11.2 when required to do so by the terms of a written contract. Plaintiffs asserted that the Master Service Agreement between Energy XXI Services, LLC and Wood Group required Wood Group to waive Signal's right of subrogation against Panther Helicopters, Inc. At all relevant times, a contract existed between Energy XXI and Panther, wherein Panther agreed to furnish certain services to Energy XXI. Defendants opposed Plaintiffs' motion, contending that Panther was not one of Energy XXI's contractors for purposes of the Energy XXI/Wood Group MSA. The court rejected this argument, finding that Panther was one of Energy XXI's contractors, even though at the time in question Panther was performing work as Wood Group's contractor. Therefore, the Energy XXI/Wood Group MSA waived any rights Signal may have had to proceed in subrogation against Panther. Plaintiffs' motion for summary judgment was granted in part and that all claims Signal and Wood Group have or could have asserted for subrogation or reimbursement of LHWCA benefits paid to Plaintiffs were dismissed insofar as Plaintiffs recover from Panther, either by settlement or judgment. Otherwise, the motion for summary judgment was denied. (USDC EDLA, June 8, 2018) 2018 U.S. Dist. LEXIS 96674
CORRECTION OF PRIOR ORDER MAKES MOTION TO DISMISS MOOT
JONES V. ASSOCIATED MARINE TERMINALS, LLC, ET AL.
These consolidated cases arose from the death of Ernest Harris, a Jones Act seaman, employed by Associated Marine Equipment, Harris was assisting crane operations at a mid-river terminal, in the Mississippi River. The crane was maneuvering a large barge cover, when the operator suddenly and without warning shifted the heavy barge cover, striking Harris in the head, causing him to fall into the Mississippi River and die. Two separate wrongful death lawsuits were filed, one by Ernest's mother, Sheila Jones, and one by Ernest's father, Robert Harris. Jones sued Associated Marine Terminals, LLC and Turn Services, LLC, alleging Jones Act negligence, general maritime law claims, and vessel negligence under §905(b) of the LHWCA. Robert Harris also sued Associated Terminals LLC and Turn Services, LLC, seeking to recover for Jones Act negligence and under the general maritime law for unseaworthiness or alternatively under the LHWCA and general maritime law. The cases were consolidated. The court granted the plaintiffs' motion to dismiss without prejudice their claims against Associated Terminals, LLC, Associated Marine Terminals, LLC, and Turn Services, LLC, which left only Associated Marine Equipment, LLC as the defendant in both proceedings. Associated Marine moved to dismiss Robert Harris’s action, on the ground that Robert Harris lacked standing to assert Jones Act and general maritime law claims against Associated Marine because he is not his son's personal representative and because only Jones was appointed as the administratrix of their son's estate. Robert Harris opposed the motion, arguing he was recently appointed as an independent co-administrator of their son's succession, due to a defect in the original order attached to the petition. According to Robert Harris's submission, Jones and Robert Harris jointly petitioned the state court to amend its prior defective order and the request was granted. Because Robert Harris demonstrated that he was appointed as a co-administrator of his son's succession, the motion to dismiss was denied as moot. (USDC EDLA, June 13, 2018) 2018 U.S. Dist. LEXIS 99041
And on the Admiralty front . . .
APPELLATE COURT AFFIRMS HOLDING DENYING NEGLIGENCE PER SE
SHAWLER V. BIG VALLEY, LLC
Justin Shawler was injured aboard Big Valley's vessel during a fishing trip in which everyone aboard, including crew members, had consumed alcohol. Big Valley was created to own and operate the vessel for business development and customer appreciation outings for the various subsidiaries of Big Valley's parent company, Ergon, Inc. Shawler had been invited aboard as part of a customer-appreciation effort by Big Valley's sister company, Ergon Asphalt & Emulsions, Inc. On this particular trip, Ergon reimbursed Big Valley for the vessel’s operational expenses. Following his alleged injury, Shawler filed suit against Big Valley for negligence and negligence per se. Shawler’s negligence per se claim was based on Coast Guard safety regulations that bar alcohol consumption by crew members on "inspected" vessels. In response to the district court's order for supplemental briefing on the vessel’s classification, Shawler suggested that the vessel was operating as a small passenger vessel, which is a type of inspected vessel. The district court disagreed and concluded that the vessel was operating as an "uninspected vessel," rendering the Coast Guard regulations barring alcohol consumption inapplicable. Shawler asserted that this ruling precluded him from litigating his negligence per se claim. Shawler proceeded to litigate his remaining negligence claim; the evidence supported a conclusion that the alcohol consumed by the relevant crewmembers did not impact their conduct, and the jury returned a verdict finding that Big Valley was not negligent. The district court entered judgment dismissing Shawler's claims with prejudice, and Shawler appealed. Shawler persisted in his contention that the vessel was operating as a small passenger vessel during the fishing trip, and thus he should have been permitted to pursue his negligence per se claim. The appellate court pointed out that subsection 35(A) defines small passenger vessel as "a vessel of less than 100 gross tons . . . carrying more than 6 passengers, including at least one passenger for hire." The only dispute before the court was whether any of the vessel’s passengers qualified as a "passenger for hire." The term "passenger for hire," or a passenger for whom consideration is contributed as a condition of carriage on the vessel. Shawler focused on whether the reimbursement payment qualified as "consideration." The statute defines "consideration" as "an economic benefit, inducement, right, or profit including pecuniary payment accruing to an individual, person, or entity, but not including a voluntary sharing of the actual expenses of the voyage, by monetary contribution or donation of fuel, food, beverage, or other supplies." The appellate court affirmed the district court’s holding of no negligence per se because the payment of the crew’s wages took the vessel out of the definition of an inspected vessel. (5th Cir, June 22, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 16974
A MARITIME LIEN FOR A BUNKER SUPPLY BELONGS TO THE BUNKER TRADER
VALERO MARKETING & SUPPLY COMPANY V. M/V ALMI SUN, ET AL.
In this case, the Fifth Circuit joined the U.S. Courts of Appeal for the Second and Eleventh Circuits in holding that a physical supplier of bunkers does not have a maritime lien against the vessel where the vessel ordered the bunkers from a bunker trader. The vessel owner’s agent contracted with O.W. Bunker Malta and requested the name of the company that would physically supply the bunkers. O.W. Malta informed the vessel’s agent that Valero would be the physical supplier. O.W. Bunker USA then contracted with Valero to purchase the bunkers. The only in rem claim asserted in this case was by Valero. Thus, the court did not have to decide if O.W. Bunker (or its assignee, ING Bank) had a maritime lien. As with the decisions by the Second Circuit and Eleventh Circuit courts, the court found that in order to have a maritime lien under the lien act, the bunkers must be supplied on the order of the vessel owner or a person authorized by the vessel owner, and that a bunker trader is not presumed to have such authority. Notwithstanding a strong dissenting opinion from Judge Haynes, the majority of the panel affirmed the district court's grant of summary judgment. (5th Cir, June 19, 2018) 2018 U.S. App. LEXIS 16525
Updater Note: This is the third recent appellate decision arriving at the same conclusion in the aftermath of the worldwide bankruptcy of O.W. Bunker group of companies. The Second Circuit’s recent decision in this regard is the next case reviewed below
A MARITIME LIEN FOR A BUNKER SUPPLY BELONGS TO THE BUNKER TRADER
ING BANK N.V. V. M/V TEMARA
In a long-awaited decision, the Second Circuit Court of Appeals became the latest U.S. court to hold that a maritime lien for a bunker supply belongs to the bunker trader, not the physical supplier of the bunkers. The appellate court affirmed in part and reversed in part the summary judgment in favor of the vessel that had been sued in rem for claims arising from the delivery of bunkers. This was a case featuring a supply by the O.W. Bunker group shortly before their collapse. The vessel’s charterer ordered the bunkers from O.W. Denmark, who subcontracted with O.W. USA, who subcontracted with the physical supplier, CEPSA. ING bank became the assignee of O.W. Denmark’s rights by way of a financing agreement. The appellate court affirmed the lower court, agreeing with the Eleventh Circuit that the physical supplier does not have the lien, essentially because the physical supplier did not deal with the charterer who ordered the bunkers. In rejecting the physical supplier’s claim to a maritime lien, the appellate court made clear that liens can be created only by law, not by contract. Therefore, the physical supplier’s argument that O.W.’s bunkering supply terms and conditions confer a lien on the physical supplier failed. The court also rejected, as unsupported in the record, the claim by the physical supplier that the O.W. entities acted as agents of the physical supplier. Further, the appellate court rejected the physical supplier’s argument that it had a maritime lien on equitable grounds, holding that a claim based on equity or unjust enrichment does not give rise to a maritime lien and can be asserted only in an in personam action, the case before the lower court being solely in rem. As for the assertion by ING of a maritime lien, the lower court held that there was no lien because O.W. Denmark did not have a financial risk in the transaction. The appellate court reversed that holding, finding that the consideration of risk is irrelevant where it was clear that O.W. Denmark contracted with the charterer to supply bunkers to the vessel. The appellate court ruled that evidence in the record that tended to establish relationships between the bank and parties down the contractual chain. Evidence of such relationships precluded summary judgment. The court reaffirmed the stricti juris nature of maritime liens rejecting the application of equitable principles such as unjust enrichment or contractual agreements to support a maritime lien recovery by the unpaid physical supplier. The court concluded it was not without sympathy for the unpaid physical supplier, but as often happens in insolvencies, unsecured creditors must now stand in line behind secured lenders. (2nd Cir, June 13,2018) 2018 U.S. App. LEXIS 15895
APPELLATE COURT REVERSES DENIAL OF WARRANT TO ARREST VESSEL
MINOTT V. M/Y BRUNELLO, ET AL.
John Minott worked for Butch Kemp Designs, a marine engineering firm hired to perform maintenance and repairs aboard the M/Y Brunello while it was docked in navigable waters. Minott attempted to board the vessel, but when he was walking up the gangway the vessel's captain or crew, suddenly and without warning, put the engines in gear, causing the gangway . . . to detach from the vessel and fall overboard, together with Minott. As a result of the fall, Minott allegedly suffered injuries to his head, neck, and spine. Minott filed a verified complaint to enforce a maritime lien for damages arising from a maritime tort in the district court. The complaint asserted an in rem claim against the Brunello and in personam claims against other individual and corporate defendants. Minott then moved the district court to direct the clerk to issue a warrant in rem for the arrest of the vessel, explaining that the tort was cognizable under admiralty jurisdiction, that he was entitled to a maritime lien, that he was entitled to arrest the vessel and litigate directly against it in rem, and that the vessel was transitory in nature and at risk of leaving the jurisdiction of the district court if not immediately arrested. The district court denied the motion without prejudice after finding that Minott failed to establish good cause for the issuance of a warrant in rem. It concluded that a maritime tort cannot form the basis for a maritime lien and cited a federal statute, 46 U.S.C. § 31342, that grants a lien to a person providing necessaries to a vessel. The district court also explained that its uncertainty whether Minott's claim fell under maritime jurisdiction weighed against issuing a warrant. Minott moved for reconsideration and cited case law where plaintiffs filed in rem actions against vessels for maritime torts. The district court denied the motion. Minott appealed, invoking the appellate court’s interlocutory jurisdiction. After first deciding that it did, indeed, have interlocutory jurisdiction over Minott’s appeal, the appellate court proceeded to explain that the district court erred when it refused to direct the clerk to issue a warrant in rem for the arrest of the Brunello. The appellate court concluded that Minott's claim for a maritime tort against the Brunello fell within the admiralty jurisdiction of the district court and Minott was entitled to a warrant in rem. Minott clearly alleged a maritime tort. The incident occurred on navigable when the Brunello was docked. Although Minott was not yet aboard the vessel when the gangway collapsed, it is well established that traditional maritime law encompasses the gangway. The district court concluded that in rem proceedings for torts would be untenable and contrary to the applicable law, and it chastised Minott for failing to cite more than one authority that would allow for the arrest of a vessel for a tort. A vessel is an entity apart from its owner that is liable for torts. A maritime lien arises at the moment of a breach or tort and attaches to the res. Therefore, the district court erred. The appellate court reversed and remanded with instructions for the district court to enter an order directing the clerk to issue a warrant for the arrest of the Brunello. (11th Cir, June 6, 2018) 2018 U.S. App. LEXIS 15258
FIRED SEAMAN REMAINS A SEAMAN AT SEA UNTIL HE REACHES LAND (CONT.)
ORION MARINE CONSTRUCTION, INC. V. CEPEDA
Inocente Cepeda, a dredge captain employed by Orion Marine Construction, Inc., sued Orion alleging that he was injured aboard a skiff transporting him from a dredge, when the skiff struck a log floating in the water. Cepeda's supervisor had just fired Cepeda from his position as captain. Cepeda disputed that his termination was effective immediately, and maintained that he was eligible for another position on the vessel. But it was undisputed that Cepeda gathered his personal belongings, boarded the skiff, and was transported to the landing. Cepeda’s supervisor denied that any accident took place. Cepeda pleaded claims for negligence under the Jones Act as well as maintenance and cure, unseaworthiness, and negligence under the general maritime law of the United States. Orion Marine moved for partial summary judgment on Cepeda's Jones Act claim and his claims for maintenance and cure and unseaworthiness, contending that Orion Marine's termination of Cepeda's employment before the accident foreclosed him from being a seaman as a matter of law, and seaman status is an element of these causes of action. The trial court rendered a partial summary judgment against Cepeda on all of his claims but the one for negligence under general maritime law on the basis that he was not a seaman at the time of the accident as a matter of law and therefore could not recover for negligence under the Jones Act or for maintenance and cure or unseaworthiness. Cepeda proceeded to trial on his negligence claim under general maritime law; the jury rendered a defense verdict. The trial court entered a take-nothing final judgment on the jury's verdict. On appeal, Cepeda contended that the trial court erred in concluding that he was not a seaman as a matter of law. The appellate court held that the trial court erred in granting partial summary judgment against Cepeda, based on its determination that Cepeda lacked status as a seaman. The appellate court reversed the trial court's partial summary judgment and remanded for further proceedings [see August 2016 Longshore Update]. The Supreme Court of Texas denied review, and the case thus returned to the trial court. Upon remand, Cepeda moved for partial summary judgment, seeking the reverse determination: that he was a seaman as a matter of law at the time of the alleged injury. The trial court granted the motion. The trial court also denied Orion's motion for summary judgment as to Cepeda's claims for negligence under the Jones Act and for maintenance and cure. In an amended order, the trial court granted Orion permission to file a permissive appeal from its interlocutory summary judgment rulings. Orion has filed a petition requesting that we accept its permissive appeal. Cepeda filed a response in opposition. In its opinion in the earlier appeal, the appellate court held that a worker who meets the definition of a seaman generally does not lose that status until reaching dry land, and further that fact issues existed as to the time of Cepeda's termination, essential to determining whether Orion terminated his employment aboard the vessel or after the alleged incident. The appellate court noted that it had made no determination that Cepeda was a seaman as a matter of law. The trial court had not so ruled in the earlier appeal to present that issue for review. The appellate court found that Orion's proposed appellate issues did not conform with the trial court's rulings on remand; nor did the trial court answer the specific questions that Orion presents in its request for a permissive appeal. Rather, the trial court granted different relief based on new legal motions brought by the parties on remand. These questions were not determined as part of the first appeal. The trial court did not explain the basis for its interlocutory summary judgment rulings or its determination that Cepeda had seaman status as a matter of law. Essentially, Orion was inviting the appellate court to review the trial court's interim rulings about the status of Cepeda seriatim, having once considered the case on appeal from a final judgment. The appellate court declined that invitation and denied Orion's petition for permissive appeal. (Tex. 1stApp Ct., June 21, 2018) 2018 Tex. App. LEXIS 4556
APPELLATE COURT FINDS TRIAL COURT ERRED IN REFUSING TO TRANSFER CASE
JONES V. WEEKS MARINE, INC.
Berlin Jones filed his seaman’s suit against Weeks Marine, Inc. in state court, namely in the 19th Judicial District Court, Parish of East Baton Rouge. Weeks filed a Declinatory Exception of Improper Venue and requested the district court to transfer the case to the 22nd Judicial District Court of St. Tammany Parish. Jones’ complaint contained no allegations as to East Baton Rouge Parish. The district court denied the venue change without comment. Taking exception to the district court’s ruling, Weeks applied for a supervisory writs. Following a de novo review, the appellate court found that the trial court erred in denying Weeks’ Declinatory Exception of Improper Venue. The Declinatory Exception of Improper Venue filed by Weeks Marine, Inc. was sustained, and the matter was remanded to the 19th Judicial District Court for the limited purpose of transferring the case to the 22nd Judicial District Court of St. Tammany Parish. (La. 1st App. Ct., June 25, 2018) 2018 La. App. LEXIS 1230
9TH CIRCUS DISSATISFIED WITH COURT’S HANDLING OF SEAMAN’S CASE (CONT.)
BARNES V. SEA HAWAII RAFTING, LLC, ET AL.
Chad Barnes was a seaman who was allegedly injured when the boat on which he was working exploded. During his recovery, Barnes received some monetary assistance from either Sea Hawaii Rafting, LLC (SHR), which owned the vessel, or Kris Henry, SHR's owner and manager, but those payments soon stopped. Seeking the ancient maritime remedy of maintenance and cure, Barnes sued the vessel in rem and SHR and Henry in personam to enforce his seaman's lien against the vessel. Although admiralty courts normally handle such matters expeditiously, that did not happen here for two reasons. First, the district court rejected Barnes's pretrial requests to enforce SHR's obligation to pay maintenance and cure. The court concluded that Barnes was entitled to maintenance and cure and had demonstrated his actual maintenance expenses. Nonetheless, despite undisputed evidence that Barnes was entitled to at least some of his actual expenses, the district court declined to award Barnes any maintenance until trial. Second, when SHR declared bankruptcy after fifteen months of litigation and shortly before trial, the district court stayed Barnes's action. The district court concluded that the vessel was an asset of the debtor's estate and that the automatic bankruptcy stay barred proceedings to enforce Barnes's maritime lien against the vessel. The bankruptcy court partially lifted the bankruptcy stay to allow the district court to evaluate Barnes's claims against SHR but expressly prohibited the district court from issuing any ruling that would affect the maritime lien's status. Ultimately, the district court dismissed Barnes's claims against the vessel. The court reasoned that it lacked in rem \fs24plain jurisdiction because, even though Barnes verified his original complaint, he failed to verify the amended complaint. Then, while Barnes's appeal was pending, the bankruptcy trustee—with the bankruptcy court's approval—sold the vessel purportedly free and clear of Barnes's maritime lien. The appellate court concluded that it lacked jurisdiction to review the district court's denial of summary judgment as to a maintenance amount, but it treated the notice of appeal as a mandamus petition. The appellate court went on to hold that the district court erred in staying the action when the vessel owner declared bankruptcy and in dismissing Barnes’ claims against the vessel for lack of in rem jurisdiction. The appellate court held that the district court erred by denying Barnes’ maintenance requests in full and held that when a seaman establishes his entitlement to maintenance and provides some evidence of his actual living expenses, the burden shifts to the vessel's owner to produce evidence that the seaman's actual costs were unreasonable. The appellate court issued a writ of mandamus to the district court to award the seaman maintenance for his undisputed actual and reasonable expenses of $34 per day, subject to a potential increase after trial. The judgment of the district court was reversed and remanded with a mandamus grant [see April 2018 Longshore Update]. Barnes then moved to have the court order the seizure of the vessel pursuant to the ruling of the Ninth Circuit and to perform the arrest without prepayment of at least ten days of the marshal's expenses otherwise required under 28U.S.C. §1291. The court initially noted that the 1988 amendments to 28 U.S.C. §1291 resolved a previous split in authority and the question of whether a seaman must prepay marshal's expenses was no longer an open question. Accordingly, it appeared to the court that prepayment of the marshal's expenses-even by a seaman-was required under the applicable law. The court gave the parties seven days from the entry of its order, however, to file any memoranda (of no more than five pages) if they disagreed with the court's conclusion. In a separate ruling, pursuant to the Ninth Circuit's writ of mandamus, the court found Barnes was entitled to an award of maintenance at the rate of $34 per day, subject to a potential upward modification after trial [see June 2018 Longshore Update]. Henry filed a letter objecting to entry of the proposed judgment, stating that he needed to consult with an attorney prior to any proposed judgment being entered, raising questions about whether Barnes has already reached maximum cure, made discovery requests for certain documents pertaining to Barnes's claims for maintenance and cure and indicating he remained unable to find counsel to represent him at the non-jury trial. Considering Henry's objections to the proposed judgment being entered, the court found it appropriate to instead issue an order setting forth the amount of maintenance owed to Barnes as of the current date, based upon the Ninth Circuit's writ of mandamus. Therefore, the court found and ordered that SHR, in personam, owed Barnes maintenance from July 3, 2012 to June 20, 2018 (a total of 2,179 days), which, at the rate of $34 per day, and subtracting maintenance payments that SHR has already made, was the sum of $72,160.34 subject to potential upward increase at trial and a determination whether Barnes had reached maximum cure on an earlier date; and additional maintenance at the rate of $34 per day will be ordered, subject to potential upward increase at trial, until Barnes reached maximum cure. Barnes had already received two payments of $962.83 each from SHR. The Court thus reduced the amount to which Barnes was currently entitled to reflect these previously received payments. Accordingly, while the sum of Barnes' maintenance for the above-described period was $74,086.00, any judgment would be entered in the amount of $72,160.34. (USDC DHI, June 20, 2018) 2018 U.S. Dist. LEXIS 103435
COURT DISMISSES EMPLOYERS MAINTENANCE & CURE FRAUD CLAM (CONT.)
WHITCHURCH V. CANTON MARINE TOWING CO., INC., ET AL.
Kori Whitchurch was employed by Canton Marine Towing, Inc. as a deckhand and member of the crew of Canton’s vessel. Whitchurch alleged he hurt his shoulder pulling wire from a winch. Canton paid maintenance and cure to Whitchurch until January 2017, which totaled $18,258.97. Whitchurch later filed a seaman’s complaint, alleging claims of Jones Act negligence and unseaworthiness and maintenance and cure under general maritime law. Shortly after this injury, Whitchurch underwent a mandated DOT physical. During this physical, Whitchurch told the medical examiner that he had not sustained any recent injury, had no physical complaints, had no joint, nerve, or muscle problems, and had unlimited use of his arms and hands. Shortly after receiving a copy of the DOT physical report, Canton moved to file a counterclaim under FRCP 13(e), which was approved. Canton alleged that Whitchurch lied about the existence of his injury and fraudulently obtained benefits from Canton. In addition to allegations relating to the inconsistent DOT physical, Canton alleged that Whitchurch presented inconsistent and implausible stories as to how the accident occurred during the interviews and made inconsistent statements on a disability questionnaire that his treating physician acknowledged were not truly representative of his capabilities. Whitchurch moved to dismiss the counterclaim, arguing that the court lacked subject matter jurisdiction, that Canton failed to state a claim upon which relief can be granted, and that Canton had failed to meet the pleading requirements of fraud under FRCP 9(b). The court pointed out that it had supplemental jurisdiction over any claims that are so related to claims over which the court had original jurisdiction such that the related claims form part of the same case or controversy as the original claims. The court found that Canton’s counterclaim was that Whitchurch fabricated his accident and injury in order to receive maintenance and cure payments from Canton. These claims had a strong factual connection to Whitchurch claims for negligence, unseaworthiness, and maintenance and cure based on the same alleged accident and injury. Therefore, the court had subject matter jurisdiction over Canton’s counterclaim, so long as it alleges a cognizable claim under the applicable law. Here, the applicable law is federal maritime law. The court pointed out that Canton’s counterclaim would only survive a motion to dismiss if there is a cognizable claim under federal maritime law. Generally, overpayments of maintenance and cure can only be recovered as an offset to any damages a seaman may recover under the Jones Act. Whitchurch argued that a claim to recover maintenance and cure obtained by fraud is not cognizable under maritime law based on the principles and holding of Boudreaux v. Transocean Deepwater,Inc., which held the McCorpen defense cannot be used as an affirmative cause of action. The court found that Canton had not alleged a cognizable counterclaim under maritime law and the court lacked subject matter jurisdiction over the counterclaim. Whitchurch’s motion to dismiss the counterclaim was granted and Canton’s counterclaim was dismissed without prejudice and with leave to amend [see March 2018 Longshore Update]. Canton Marine then filed its second amended counterclaim, alleging that Whitchurch lied about the existence of his injury and fraudulently obtained benefits from Canton Marine. The claim of fraud was again supported by the allegation of Whitchurch’s statements during the DOT physical. Whitchurch moved to dismiss the second amended counterclaim pursuant to Rule 12(b)(6), alleging it suffered from the same issues as the first amended counterclaim and that it did not assert a cognizable claim under maritime law. Canton Marine purported to bring its counterclaims under federal maritime law, incorporating federal and Illinois common law of fraud. As the court ruled in its earlier opinion, federal maritime law controlled the rights and liabilities of the case because the case arose from conduct that invoked the court's admiralty jurisdiction, and federal maritime law generally prohibits an action by an employer against a seaman-employee to recover overpayments of maintenance and cure. The court did notes that this case was distinguishable from cases regarding a McCorpen counterclaim on the existence of the employment relationship because in those cases, the seaman was actually injured and an accident occurred. Nonetheless, the court found that the general principles of limiting the availability of claims for restitution from maintenance and cure payments applied to this factual scenario as well, in which Canton Marine asserts that Whitchurch fabricated the injury and accident itself. The allegations that Whitchurch precluded Canton Marine from investigating the injury did not support a claim for relief. The court found that Canton Marine had not alleged a cognizable counterclaim under maritime law. As a result, the counterclaim must be dismissed. Whitchurch’s motion to dismiss was granted. (USDC CDIL, June 29,2018) 2018 U.S. Dist. LEXIS 108651
COURT DENIES SUMMARY JUDGMENT TO LOANING EMPLOYER (CONT.)
TERCERO V. OCEANEERING INTERNATIONAL, INC. ET AL.
Nestor Tercero was allegedly injured while working for Encore Food Services, LLC as a galley hand on board an Oceaneering International, Inc. vessel. Tercero claimed he was ordered by his supervisor, a cook employed by Oceaneering, to clean the ceiling in the mess room of the vessel. Tercero further alleges that, as he was cleaning the ceiling using a two-step step stool, he lost his balance, placed his foot on a nearby swiveling stool mounted to a galley table, and fell to the floor. Tercero sued Encore and Oceaneering, alleging negligence under the Jones Act. Encore moved for summary judgment, arguing that Tercero had failed to show that it committed any negligent act or omission. The court pointed out that Tercero's claims regarding Encore simply were not ripe for summary judgment on the current record. Encore's motion for summary judgment was denied [see April 2018 Longshore Update]. The court subsequently granted motions in limine filed by Oceaneering and Encore, which challenged the opinions of the Tercero’s expert, Robert Borison. Tercero then moved the court to reconsider its previous decision. The court declined Tercero's invitation, noting the facts of the case were not complicated. As before, the court concluded that the facts of this straightforward slip-and-fall case were well within the domain of common sense matters for which the jury required no expert assistance. Nothing in Borison's report required expertise to comprehend. Borison's opinions and testimony, therefore, would not be helpful to the trier of fact. Accordingly, Tercero's motion for reconsideration was denied. (USDC EDLA, May 24, 2018) 2018 U.S. Dist. LEXIS 91031
SEAMAN’S NEGLIGENCE & UNSEAWORTHINESS CLAIMS ALLOWED TO PROCEED
LUWISCH V. AMERICAN MARINE CORPORATION
Henry Luwisch filed a seaman’s complaint seeking damages and maintenance and cure benefits for injuries allegedly sustained while working for American Marine Corporation (AMC) aboard its vessel. Luwisch claimed that, while performing an inspection of the upper deck, he tripped on an improperly stowed rope and/or board and fell approximately ten feet to the deck below. As a result of the fall, Luwisch allegedly he sustained injuries to his right shoulder and arm, neck, and head. Luwisch brought claims of Jones Act negligence, unseaworthiness, and maintenance and cure. AMC moved for partial summary judgment on the issues of Jones Act negligence and unseaworthiness. Luwisch opposed the motion. With regard to Luwisch's negligence claim, AMC contended that Luwisch was the sole cause of his own injuries, because he could have exercised his unmitigated authority to stop the job until the ropes and/or equipment on the top deck were moved to eliminate any possible hazards. AMC also contended the rope and boards were an open and obvious condition of the vessel, relieving it of liability. As to Luwisch's unseaworthiness claim, AMC asserted Luwisch had submitted no evidence to suggest the storage of the rope constituted an unseaworthy condition. The court found that the summary judgment record suggested a factfinder could reasonably find that AMC was negligent, and that AMC's negligent actions or inactions contributed to Luwisch's injuries in the slightest degree. In his deposition, Luwisch testified that the rope was a tripping danger. The photographs attached to AMC's motion corroborated Luwisch's account, clearly showing that the rope obstructed the path from the ladder to the top deck. Based on the record, the court found a reasonable factfinder could infer that the placement of the rope and/or boards on the top deck was negligent, and that this placement caused Luwisch to trip and fall to the second deck of the vessel. Further, much of AMC's argument relied on the proposition that Luwisch was primarily at fault for his own injuries. Like negligence generally, determinations of comparative fault were better left to the factfinder at trial. With respect to Luwisch's unseaworthiness claim, the parties agreed that the rope was stored on the top deck in a manner that created a tripping hazard. Courts have found that improperly wound or stored rope may constitute an unseaworthy condition. This inquiry is fact intensive and requires the jury to balance many factors. The court notes that AMC’s argument that the condition of the rope was "open and obvious" was unavailing. AMC’s motion for partial summary judgment on the issues of Jones Act negligence and unseaworthiness was denied. (USDC EDLA, June 18, 2018) 2018 U.S. Dist. LEXIS 101147
In a separate opinion in the same case, the court addressed AMC’s Daubertchallenge to exclude or limit the testimony of Luwisch’s, expert witness Glenn M. Hebert. The motion was granted in part and denied in part. The court held that Hebert would not be permitted to offer opinions regarding Luwisch’s medical treatment or prognosis, nor would he be permitted to offer his opinion of Luwisch’s reduced work-life expectancy. However, the court also held that he would be permitted to testify as to the other opinions represented in his expert report, provided those opinions were adequately supported at trial. (USDC EDLA, June 18, 2018) 2018 U.S. Dist. LEXIS 101371
COURT FINDS QUESTION OF FACT ON MATERIALITY PRONG OF MCCORPENTEST
LUWISCH V. AMERICAN MARINE CORPORATION
Henry Luwisch filed a complaint seeking damages and maintenance and cure benefits for injuries allegedly sustained while working for American Marine Corporation (AMC) aboard its vessel. AMC moved for partial summary judgment that Luwisch was not entitled to maintenance and cure benefits pursuant to McCorpen v. Central Gulf Steamship Corporation. AMC asserted it would not have employed Luwisch if his diagnosis of degenerative disc disease had been disclosed prior to his hiring. AMC typically requires candidates to complete an application packet that contains a health questionnaire. According to AMC, Luwisch was sent this package, but only returned the first few pages of the hiring packet, and did not fill out the health assessment. Nevertheless, Luwisch was hired by AMC. The court found that a triable issue of fact existed as to whether the undisclosed information was material to AMC's decision to hire Luwisch. The summary judgment record shows that AMC never specifically asked Luwisch about his neck or cervical spine. With regard to the pages of the hiring packet relating to health issues, the court found it significant that AMC hired Luwisch without having obtained the complete packet. The employer has the burden of establishing all three prongs to prevail on a McCorpen defense. Because a genuine issue of fact existed with respect to the "materiality" prong, The court held that AMC was not entitled to summary judgment and denied the motion for partial summary judgment. (USDC EDLA, June 24, 2018) 2018 U.S. Dist. LEXIS 105596
MANY PEOPLE DOES IT TAKE TO CHANGE A LIGHT BULB?
KWASI BOAFO MANU V. UNITED STATES OF AMERICA
Kwasi Boafo Manu had been a seafarer since 1972. He signed aboard a United States vessel as the Second Assistant Engineer, responsible for maintenance of the vessel. The Chief Engineer assigned Manu to check light fixtures for proper operation and replace burned out light bulbs. As Manu entered the tech library, to change a light bulb he knew was out, he tripped over the raised threshold at the door, falling on his shoulder. While Manu was aware of the raised threshold, he tripped because his attention was directed at entering the narrow door with a ladder, tool box and bulbs and therefore he wasn't looking at the threshold. After several medical examinations, Manu was ultimately diagnosed with a torn rotator cuff and a broken bone. He had surgery to repair the injury. One year later, Manu’s treating physician released him to return to work without restrictions. Manu filed a three-count complaint against the United States alleging Jones Act negligence, unseaworthiness, and unpaid maintenance and cure benefits, all arising from the trip and fall accident. The United States moved for summary judgment as to all counts, contending it only takes one Second Engineer to change a light bulb. Manu asserted, for the first time in his response, that assigning less than two people was proof that the Chief Engineer of the vessel was negligent under the Jones Act. Moreover, Manu alleged that the ship was unseaworthy because he was not provided with the safe, proper working and operational illumination he needed to change the light bulb and because his employer failed to warn him of the threshold in the doorway to the Tech Library. The court found that the undisputed evidence showed that Manu tripped on the threshold when attempting to carry too many items into the Tech Library. The court agreed with the United States that there was no duty to instruct Manu, an experienced seaman, on matters within common sense, or to remind him of what he already knew or should have known or about carrying too many items when negotiating raised thresholds on a vessel. The court also noted that Manu could not assert new claims by way of a response to summary judgment and pointed out that Manu was not injured while changing a lightbulb, but because he tripped over a threshold. The court concluded that Manu had not established a genuine issue of material fact as to whether the United States was negligent, thus defendant was entitled to summary judgment on Manu’s negligence count. The court also held that Manu’s new bases for his unseaworthiness claim failed as untimely. However, the court also held that Manu had not shown a genuine issue of material fact as to the unseaworthiness of the vessel. Manu did not address the argument that summary judgment should be granted as to maintenance and cure. The court found that the United States was entitled to judgment as a matter of law as to Manu’s claims and granted the motion for summary judgment. (USDC SDAL, June 6, 2018) 2018 U.S. Dist. LEXIS 96042
COURT AFFIRMS HIGHER RATE BUT REVERSES FAILURE TO ENFORCE CONTRACT
SABOW V. AMERICAN SEAFOODS COMPANY
In this maritime case, Rodwan Sabow's former employer, American Seafoods Company, LLC (ASC), appealed the district court's grant of Sabow's motion to compel maintenance, arguing that a maintenance award's reasonableness is determined solely by reference to the cost of food and lodging aboard its ship. Sabow cross-appealed the court's denial of attorney fees. The appellate court began by pointing out that, contrary to ASC's argument, a maintenance award's reasonableness is not determined solely by reference to the cost of food and lodging aboard a ship. Instead, to determine the reasonableness of an award, a district court may consider the seaman's actual costs; reasonable costs in the locality or region, i.e., on land; union contracts stipulating a rate of maintenance or per diem payments for shoreside food or lodging while in the service of a vessel; and other maintenance awards in the same region. The appellate court found that the district court appropriately considered such factors and also applied the correct summary judgment and burden-shifting frameworks to Sabow's motion. Sabow produced prima facie evidence that his actual expenses were $37.97 per day. The burden then shifted to ASC to identify a genuine dispute as to whether Sabow's actual expenses were unreasonable. ASC did not maintain that Sabow's expenses were unreasonable, but instead suggested that lower expenses of $30 per day were also reasonable when compared to the expenses at sea. The district court properly granted Sabow's motion to compel the higher maintenance rate. Turning to Sabow’s cross appeal, the appellate court found that the district court acted within its discretion in denying Sabow's request for attorney fees, taking all factors into consideration. ASC did not refuse to pay maintenance to Sabow altogether; instead, it failed to raise Sabow's daily maintenance amount from $30.00 to $37.97. ASC's litigation position was therefore not entirely unfounded. Finally, the appellate court found that the district court erred in denying ASC's request to enforce its contract with Sabow regarding an advance payment to Sabow. The parties agreed that Sabow's advance would be offset against any higher maintenance payments or certain other awards. Although the right to maintenance cannot be abrogated by contract, this contract did not reduce the amount of any maintenance owed to Sabow; instead, it provided Sabow the maintenance owed to him in an advance lump sum to cover unexpected expenses. The district court’s judgment was affirmed in part, reversed in part and remanded. (9th Cir, June 15, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 16165
ALL THREE CAUSES OF ACTION DISMISSED ON SUMMARY JUDGMENT
JONES V. UNITED STATES OF AMERICA
Wilfred Jones signed on as an engineer with a vessel owned by the United States. This Jones Act case arises out of Jones’ alleged slip-and-fall aboard the vessel. Jones asserted that, as he stepped into the emergency diesel generator room with his left foot, his right foot slipped, causing him to fall into some carbon dioxide containers. Jones testified during his deposition that he did not look down at the deck to see what caused him to slip, despite always carrying a flashlight when conducting rounds. Nor did he notice anything out of the ordinary that evening. When Jones reported his injury the next day, he stated that he "lost balance and fell," but did not attribute his loss of balance to any particular cause. Jones allegedly sustained injuries to his right arm and his back because of his accident. Jones filed suit against the United States and Keystone Shipping Services, Inc. Keystone, as agent of the United States, operated the vessel and employed Jones. The complaint sought damages for maritime negligence and unseaworthiness, as well as maintenance and cure, now alleging that Jones slipped on grease on his shoes from the outer deck. The court dismissed Keystone Shipping Services because of the exclusivity provision of the Suits in Admiralty Act, 46 U.S.C. §30904.24. The United States then moved for summary judgment, arguing that there was no evidence showing that the presence of grease on the decks created an unsafe condition or actually caused the accident. Jones’ deposition testimony provided evidence of the presence of grease on the exterior decks of the vessel, because he testified that there was always grease present on these decks. Although there was evidence of the presence of grease on the decks, there is no evidence that the grease created an unsafe condition in the area where Jones slipped, or actually caused him to slip. The area immediately outside the emergency diesel generator room has a nonskid surface. It is also covered by an overhang, meaning that grease could not have fallen directly from the winch cables onto the floor outside the room. Jones did not testify that he observed any grease, either on the decks or on his shoes, at the time of the accident. Indeed, Jones’ injury report filed the next day simply stated that he "lost balance and fell," and does not attribute his loss of balance to any particular cause. Jones was clearly able to investigate why he slipped, because the deck area outside the emergency diesel generator room was illuminated, and Jones had a flashlight. It was only some time after the accident that Jones speculated in retrospect that he slipped on grease, and that he must have stepped in grease somewhere on the deck. Thus, there was no evidence connecting Jones’ slip and fall to the presence of grease on the vessel’s deck. In the absence of such evidence, it was not plausible to infer that the grease actually caused the accident. Thus, the United States was entitled summary judgment on Jones’ negligence claim. A slippery surface may render a vessel unseaworthy. But, as the court found earlier, Jones’ testimony failed to raise a genuine dispute as to whether the grease on the decks played any part-let alone a substantial part-in causing his injury. Thus, the United States was entitled summary judgment on Jones’ unseaworthiness claim. In arguing that it was not obligated to pay further maintenance and cure to Jones, the United States asserted the McCorpen defense. The court found the evidence submitted by the United States satisfied all three prongs of the McCorpendefense as to Jones’ claimed back condition. Therefore, the United States established the McCorpen defense, and was entitled summary judgment on Jones’ claim for maintenance and cure. The United States’ motion for summary judgment was granted and Jones’ complaint was dismissed with prejudice. (USDC EDLA, June 1, 2018) 2018 U.S. Dist. LEXIS 91472
ANOTHER COURT HOLD PUNITIVE DAMAGES AVAILABLE UNDER MARITIME LAW
MORGAN V. ALMARS OUTBOARDS, INC.
This is a product liability case which raised an important question of general maritime law: can an injured passenger recover punitive damages, and her spouse damages for loss of consortium, for non-fatal injuries suffered in coastal waters? During an outing on the water, Lisa Morgan's right little and ring fingers were traumatically amputated in a boating accident. She was entering the water from the surface of a 2006 Bentley Pontoon Boat when her hand caught in the boat's gate. Morgan's spouse, Edward Morgan, was on a nearby boat at the time, and rushed to her aid. The boat on which Morgan was injured was owned by the Morgans' friend, Richard Spence, who bought the boat new from Almars Outboards, Inc., an authorized dealer for Bentley, the boat's now-defunct manufacturer. There was no evidence that Spence knew he was purchasing a boat with a dangerous design that had already been the subject of a safety recall and would soon be recalled again. Bentley designed its pontoon boats to have metal railings that curved down to the hinges where the railings met the gate. Bentley soon learned that this design created a "pinch point" where the curved corners of the gate and railing came together, allowing a passenger's fingers to become ensnared. Almars contended that it had no knowledge of the of the multiple recall notices issued by Bentley about the safety hazard that Bentley's gates or ball guards posed until it learned of Morgan's injury. Based on these events, plaintiffs filed their products liability lawsuit, suing only Almars as the retail supplier of the product and making claims based in negligence and two theories of strict liability-sale of a defective product and failure to warn-seeking punitive damages and other remedies. Mr. Morgan asserted a derivative claim of loss of consortium based on the injuries his wife suffered, and an independent claim for negligent infliction of emotional distress based on his proximity to the accident. The parties filed cross motions for partial summary judgment. Plaintiffs sought summary judgment against Almars on both of their theories of strict product liability. Almars sought dismissal on the merits of the Morgans' negligence and NIED causes of action, and asserted that their claims for punitive damages and loss of consortium must be dismissed as unavailable under general maritime law. Alternatively, Almars sought dismissal of the punitive damages claim on the merits. The court found that the Morgans were entitled to summary judgment on the issue of whether Almars supplied a "defective" product that was "unreasonably dangerous," as those terms are defined in Section 402A of the Restatement (Second) of Torts, when it originally sold the pontoon boat on which Morgan was injured. The remainder of plaintiffs' motion was denied, however, as those issues, including liability for failure to warn and causation, were appropriate for resolution by a jury. Almars's motion was granted only as to Mr. Morgan's NIED claim, to which there was no opposition. It was denied as to the merits of Morgan's negligence claim, and as to the availability of her claim for punitive damages and Mr. Morgan's claim for loss of consortium, holding that the Morgans may access those remedies under general maritime law. The court found that is the wake of Atlantic Sounding Co., Inc. v. Townsend, it was am persuaded that such remedies were available to plaintiffs. This is so because the claims they assert and the relief they seek are well established in general maritime law, and no act of Congress, including the Jones Act, eliminates their availability. Townsend held that when a common law cause of action and remedy predate a statute, courts need not ratchet down common law relief to match statutory relief, unless Congress has explicitly legislated otherwise. Consequently, the court held that such damages were recoverable by plaintiffs in this case. Finally, defendant's Motion was denied as to the merits of Ms. Morgan's punitive damages claim. (USDC DDE, June 13, 2018) 2018 U.S. Dist. LEXIS 98989
COURT ADDRESSES WORK PRODUCT CLAIM FOR DISCOVERY OF SURVEILLANCE
MYERS V. ALEUTIAN ENDEAVORS, LLC, ET AL.
Thomas Myers alleged that he was injured while working aboard a vessel owned and operated by Aleutian Endeavors, LLC. Following his alleged injury, Myers commenced this action seeking, among other things, unearned wages, maintenance, and cure. Defendants answered Myers’ complaint and denied his allegations that he was injured abroad their vessel. During discovery, a dispute arose over an interrogatory involving surveillance. Myers questioned whether defendants or anyone acting on their behalf conducted surveillance of him or engaged any person or firm to conduct surveillance of his activities. Defendants objected to the interrogatory, claiming work product privilege. Myers then moved to have the court compel a response. Myers counsel conferred with defense counsel regarding their work product objection and during that conference, defense counsel disclosed that no surveillance of Myers had been conducted thus far but defense counsel refused to withdraw his work product objection and would not commit to informing Myers should surveillance be undertaken in the future, before or after the deposition of Myers. The court noted that the issue before it was the discoverability of whether surveillance had been done or will be done in the future, not the discoverability of surveillance materials themselves. Defendants argued that because Myers now knows that no surveillance has been conducted, anything the court would determine about the discoverability of the existence of surveillance would be an advisory opinion, which the court may not render. As to the question of whether the existence of surveillance is discoverable, defendants urged the court to find that it was not, because it is work product. The court pointed out that while some courts have held that surveillance material is protected work product, whether a defendant conducted surveillance and the dates on which any surveillance took place are not privileged. The court concluded that the existence of surveillance was not protected work product and held that defendants' work product objection to Interrogatory No. 5 was not proper, and the existence of surveillance may be relevant to the claims and defenses in the case. Thus, defendants were compelled to provide an answer to Interrogatory No. 5 that complies with Rule 33(b)(3). However, the court also held that Myers was not entitled to be informed prior to defendants conducting any surveillance in the future. Myers motion to compel was granted in part and denied in part. (USDC DAK, June 4, 2018) 2018 U.S. Dist. LEXIS 93306
COURT DENIES MOTION FOR TO DISMISS FOR FORUM NON CONVENIENS
LARONGE V. RUCKUSSPORTFISH, LLC, ET AL.
Thomas Laronge, a United States citizen residing in Florida, sought damages for negligence under the Jones Act and for maintenance and cure under general maritime law for damages that arose out of an alleged accident that occurred in the British Virgin Islands. While employed by RuckusSportFish, Laronge was allegedly injured when he fell down a waterslide at Scrub Island Resort. RuckusSportFish, LLC is a Florida limited liability company with its principal place of business in St. Petersburg, Florida. RuckusSportFish through Gary Eng, a United States citizen and managing member of RuckusSportFish, employed Laronge. His employment contract provided that he was to serve as captain and manager of ship operations for a U.S. flagged vessel with its home port listed as Key West, Florida. His duties also included reporting to Eng, working closely with the staff at Scrub Island Resort in the BVI, participating in the development of excursions in conjunction with Scrub Island Resort, and performing any other various undefined assignments. After Laronge filed suit, Ruckussportfish moved to dismiss for forum non conveniens or, in the alternative, to stay proceedings. After weighing each of the Lauritzen-Rhoditisfactors, the court determined the choice of law was the law of the United States, and declined to reach the second line of inquiry concerning the factors of forum non conveniens. Accordingly, RuckusSportFish’s motion to dismiss for forum non conveniens was denied along with the motion to stay proceedings. The court ordered RuckusSportFish to file its answer and defenses to Laronge’s complaint within fourteen days of its order. (USDC MDFL, June 29, 2018) 2018 U.S. Dist. LEXIS 109040
FEDERAL COURT RETAINS LIMITATION ACTION
IN RE: REBECCA MARY FISHERIES, LLC
Thomas Donovan allegedly fell and suffered physical injuries while boarding a commercial fishing trawler owned by owner,1Rebecca Mary Fisheries, LLC as part of his duties as captain of said vessel. After Donovan sued his employer, Rebecca Mary Fisheries filed a limitation action, seeking to limit its liability for the incident to the value of the vessel or $375,000.00. Donovan filed a timely claim of $4,000,000.00 in the limitation action, and in which he denied that Rebecca Mary Fisheries was entitled to the relief requested and denied that the value of the vessel was $375,000.00 with no pending freight on the date of his injury. Donovan also denied that Rebecca Mary Fisheries was the sole owner of the vessel, alleging that NGC, Inc. d/b/a The Town Dock was also an owner. NGC, Inc. denied that it was an owner and asserted only a contractual management relationship with the vessel. Donovan moved to stay the limitation action and lift the litigation injunction to allow him to have his Jones Act and common law claims tried before a jury in his chosen forum. In his motion, Donovan identified those potential forums as either the limitation court or the Rhode Island Superior Court, but at his motion hearing Donovan elected to pursue his jury trial in the limitation court and voluntarily dismiss his redundant and presently stayed Superior Court complaint without prejudice. Donovan also proposed to enter into certain stipulations acknowledging this court's ultimate right to determine limitation issues. The court agreed and directed Donovan to enter into and file stipulations with the court which would adequately protect the Rebecca Mary Fisheries’ right to seek limitation of liability in the court and withdraw his counterclaim without prejudice, after which he could amend his complaint and demand a jury trial. (USDC DRI, June 19, 2018) 2018 U.S. Dist. LEXIS 107608
Quotes of the Month . . .“It is better to remain silent at the risk of being thought a fool, than to talk and remove all doubt of it.” --Maurice Switzer
“The saddest aspect of life right now is that science gathers knowledge faster than society gathers wisdom.” -- Isaac Asimov
“Any fool can know. The point is to understand.” -- Albert Einstein
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
NOTE: This is an email list for anyone interested in up-to-date Longshore and related maritime news. Please invite others to join. They may do so by simply sending an email message to LongshoreUpdate-subscribe@yahoogroups.com. Content will be in the form of summaries of recent court decisions, commentary, and (where possible) links to the decisions. Generally, mailings will be limited to once a month. Anyone working in the Longshore environment should find this useful. To unsubscribe at any time, please just send an email message to LongshoreUpdate-unsubscribe@yahoogroups.com.
Redistribution permitted with attribution.