September 2018
Notes From Your Updater: On August 10, 2018, Delegate Bordallo (D-GU) introduced a bill (H.R. 6665) to amend the Outer Continental Shelf Lands Act to apply to territories of the United States, to establish offshore wind lease sale requirements, to provide dedicated funding for coral reef conservation, and for other purposes.
NINTH CIRCUIT AGREES WITH THE FOURTH CIRCUIT ON DEFINITION OF §902(10)
CHRISTIE V. GEORGIA-PACIFIC COMPANY, EL AL.
Stanley Christie, a longtime employee of Georgia-Pacific Company, allegedly injured his back at work in 1999. He returned to work following his injury but he eventually required surgery, which he underwent in 2004. The parties did not contest that following his surgery, Christie faced physical limitations, and Georgia-Pacific reassigned Christie to less physically demanding safety inspection work sometime in 2006. In late 2010, Christie learned that the option to take early retirement would likely no longer exist beginning in January of 2011. Since Christie was still years away from reaching the retirement age of 62, in December of 2010 he decided to retire early and accepted an 18-percent reduction in monthly pension payments. Years after he retired, Christie sought permanent total disability benefits under the LHWCA. The administrative law judge who considered Christie's claim awarded Christie permanent total disability benefits. Georgia-Pacific appealed the ALJ's decision to the Benefits Review Board, which reversed the award of benefits. Christie subsequently appealed, contending that the BRB erred in reversing his award of permanent and total disability benefits. The appellate court interpreted the language of §902(10) defining "disability," and held that Christie’s decision to retire early did not prevent him from receiving permanent total disability benefits, noting that its conclusion is in accord with a recent Fourth Circuit decision also interpreting §902(10). The plain language of §902(10) makes no reference to retirement or its timing, nor to whether an employee decides to retire voluntarily or involuntarily. The Board's reading of §902(10) assumes that retirement categorically results in a person's incapacity to work. Yet, the language of §902(10) does not give any indication that retirement is to be treated in that manner. Neither is it the case that retirement, in all instances, means that a retiree is incapable of working. Retirement simply means that a person is no longer working a particular job. In short, although retirement and incapacity to work may be linked, they are not necessarily one and the same. The appellate court concluded that the Board's reading of § 902(10) is overly restrictive and unsupported by the plain language of the statute. Accordingly, a plain reading of § 902(10) revealed that the Board committed legal error in reversing the ALJ's award of benefits to Christie. The panel further held that substantial evidence in the record supported the ALJ’s findings that Christie was disabled with the meaning of the Act: he attained maximum medical improvement, he could no longer return to his previous employment, and the employer failed to establish that suitable alternative employment existed. The panel noted that the Board did not question the ALJ's factual findings, and remanded for a calculation of the permanent total disability benefits to be awarded to Christie. (9th Cir, August 2, 2018) 2018 U.S. App. LEXIS 21447
LHWCA PRO SE PLEASE GO AWAY DO NOT COME ANOTHER DAY
COOLEY V. DIRECTOR, OWCP [HUNTINGTON INGALLS, INC.]
Jesse Cooley Jr. filed a claim against Huntington Ingalls Incorporated under the Longshore and Harbor Workers' Compensation Act, alleging that he contracted a permanently disabling lung disease due to prolonged exposure to asbestos while working for Huntington. The administrative law judge denied Cooley's claim after considering conflicting medical opinions of whether Cooley actually suffered from asbestosis or an asbestos-related lung condition. The Benefits Review Board affirmed the ALJ's denial of Cooley's claim. Cooley petitioned to the circuit court for review of the unfavorable decision. Cooley argued that the ALJ lacked sufficient evidence to deny his claim and should have relied on the evidence that he does suffer from asbestosis. Construing Cooley's pro se brief liberally, the appellate court concluded that Cooley failed to demonstrate that the ALJ erroneously relied on the opposing medical opinions. The BRB therefore did not err when it concluded that the ALJ's conclusion was supported by substantial evidence. The appellate court denied the petition for review. Cooley's motion for appointment of counsel was also denied. (5th Cir, August 3, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 21611
A REMAND IS NOT A FINAL ORDER UNDER §921
WILSON V. BOEING COMPANY, ET AL.
Circuit Court Opinion
Billy Ray Wilson, proceeding pro se, filed a claim for benefits under the LHWCA, as extended by the Defense Base Act. The defendants moved for summary decision. An ALJ determined that Wilson did not provide timely notice and did not timely file his claim. The ALJ therefore granted the defendants’ motion for summary decision. Wilson appealed the ALJ's decision to the Benefits Review Board. The BRB vacated the ALJ's decision and remanded the case for further proceedings. The BRB denied Wilson's pro se motion for reconsideration. Wilson subsequently filed the instant petition for review. The appellate court simply pointed out that it is a well-established rule of appellate jurisdiction that ordinarily a remand to an administrative agency is not a final order within the meaning of §921©. No circumstances in Wilson’s case warranted a departure from that general rule. Accordingly, the motion to dismiss was granted. The petition for review was dismissed for lack of jurisdiction. (6th Cir, August 15, 2018) 2018 U.S. App. LEXIS 22779
LONGSHOREMAN'S WIDOW WINS $4.2 MILLION AFTER WRONGFUL DEATH TRIAL
MANSON GULF, LLC V. 2 MODERN AMERICAN RECYCLING SERVICE, INC., ET AL.
This litigation arose from the death of longshoreman James "J.J." LaFleur when he fell 50 feet to his death after stepping through a hole on a decommissioned oil platform. Manson Gulf, LLC contracted with Freeport-McMoran Oil & Gas for the purchase and removal of the 50-foot-tall platform. Manson, in turn, contracted with MARS to dispose of the platform when brought to shore. The platform sat atop a barge chartered by Manson, who ordered the hole's creation but allegedly did not cover the hole or warn LaFleur of its existence. Following LaFleur’s death, Manson filed a complaint seeking exoneration or limitation from liability. 2 Modern American Recycling Service ("MARS"), who had employed LaFleur as an independent contractor, answered the complaint and asserted various claims and defenses. Shortly thereafter, LaFleur’s surviving spouse, filed claims for damages against Manson and MARS, alleging negligence under both maritime and Louisiana law. The case was tried before the bench, before one of the most plaintiff-oriented jurists on the federal bench, without a jury. Judge Carl J. Barbier awarded $4.2 million to the widow and children of LaFleur, after holding Manson liable for LaFleur’s death. The court found that under §905(b) of the LHWCA, Manson was responsible for ensuring the platform-bearing barge, which it had chartered , was either in safe condition or warning of any non “open and obvious” danger. Because the hole at issue was hard to see, and bore no warnings, unlike other rigging holes on the platform, its presence violated the law. Manson failed to exercise ordinary care under the circumstances when it turned over the vessel to MARS and failed to warn of the hole, and failed to cover or mark the hole. The court found that LaFleur’s actions on the platform were reasonable and he was free of fault, and that Manson’s breach of its duty to turn over the barge in safe condition was the sole proximate, legal and factual cause of the accident. Judgment was entered against Manson, who was ordered to pay claimants $4,210,756.00 in damages. (USDC EDLA, August 22, 2018) 2018 U.S. Dist. LEXIS 142269
NO EVIDENCE OF VIOLATION OF SCINDIADUTIES
MALBROUGH V. PARKER DRILLING OFFSHORE USA, LLC
Ronald Malbrough, a wireline operator for Baker Hughes, brought this action against Baywater Drilling, LLC for damages allegedly sustained on a barge moored alongside a Baywater drilling barge. Malbrough asserts his claim under §905(b) of the LHWCA. Malbrough and three other Baker Hughes operators were sent to the Baywater barge to perform wireline work. Malbrough was unloading a cargo basket while the crane was still attached. During the transfer from the rig floor, the sheave became lodged in the grating of the basket, and Malbrough had to wiggle it free. Malbrough alleged that the basket chosen by the Baywater crew was chest-high and very deep, which required him to stand on his toes and reach into the basket to remove the heavy tool. In doing so, Malbrough allegedly herniated a disc in his neck. Baywater moved for summary judgment based upon Malbrough deposition testimony, during which he made several relevant admissions. First, he acknowledged that he had not followed the pre-job Baywater Safety Briefing, and stated that he knew he was not following proper lifting technique at the time of the accident. He admitted that, since the crane was still attached to the basket, he could have easily used the crane to lift the sheave. Finally, although Malbrough alleged in his complaint that the Baywater crew loaded the sheave into a chest-high basket and that he had to stand on his toes to remove it, Malbrough admitted in his deposition that the basket was only waist-high; that it was loaded by Baker Hughes, not Baywater; and, importantly, that his injury occurred when he was in the basket pulling on the sheave - not when he was reaching over into the basket. The court found that there was no issue of material fact as to whether Baywater breached any of the three Scindiaduties. Baker Hughes were experts in wireline operations, including loading and unloading their equipment. There was no hidden danger. The condition of the basket and sheave were open and obvious to Malbrough, who admitted that there was adequate lighting to see the equipment and that his accident happened while performing normal work. Baywater’s unopposed motion for summary judgment was granted AND Malbrough’s §905(b) claim was dismissed with prejudice. (USDC EDLA, August 27, 2018) 2018 U.S. Dist. LEXIS 145208
MEMORANDUM OF INFORMAL CONFERENCE IS NOT AN ENFORCEABLE ORDER
CRIGLER V. CHEMONICS INTERNATIONAL, INC., ET AL.
Chemonics International, Inc. hired Lauren Crigler to work as a Health Systems Senior Technical Advisor in Rwanda. During that employment, Crigler allegedly strained her back and suffered physical and psychological injuries, which she believed to have related to her employment. After an exchange of e-mails with Crigler, Chemonics' Benefits and Compensation Manager advised Crigler to file a claim under the LHWCA, as extended by the Defense Base Act. Crigler filed her claim seeking compensation and medical benefits. Following a hearing, the ALJ granted Crigler's motion for summary judgment on her claim, determining that Crigler was entitled to compensation and benefits, and ordered Chemonics to pay Crigler compensation for temporary total disability at the maximum compensation rate, and continuing, together with interest on the unpaid compensation at the legal rate, and to furnish to Crigler all medical for such period as the nature of Crigler's injury or the process of her recovery may require. On remand the District Director ordered Chemonics to show cause why they failed to provide Crigler medical care for her work related injuries and why a declaration of default should not have been made. Crigler requested the ALJ to issue a supplemental order enforcing his summary judgment order. The ALJ denied Crigler's request because he lacked enforcement power. Crigler then sought to enforce the ALJ’s Order in district court. However, the court dismissed the action without prejudice on the grounds that it lacked subject matter jurisdiction to enforce the order because it was not a final order. Subsequently, a claims examiner held an informal conference to address Crigler's request that Chemonics reimburse her for medical expenses and provide authorization for a medical examination. Prior to giving such authorization, Chemonics wanted Crigler to obtain a second medical opinion. In an informal memorandum, the claims examiner advised Crigler to continue submitting her bills to Chemonics for reimbursement and noted that Chemonics had the right to require Crigler to obtain a second medical opinion before authorizing her medical examination. After a second informal conference and continued disagreement between the parties, Crigler initiated this action seeking entry of an order enforcing the Memorandum of Informal Conference (MIC) pursuant to §921(d) and an award of attorney's fees. Crigler contended that she was entitled to entry of summary judgment in her favor. Chemonics sought entry of summary judgment in their favor on the ground that the order in dispute was not a final compensation order which the court would have jurisdiction to enforce. Upon careful consideration of the record, the court found that the action had to be dismissed for lack of subject matter jurisdiction because Crigler has failed to present a final, formal compensation order capable of judicial enforcement. Specifically, the court concluded that the MIC was not a formal compensation order, and that neither the summary judgment order nor the MIC were final orders which the court was authorized to enforce pursuant to §921(d). Because Crigler failed to present a final, formal compensation order capable of judicial enforcement pursuant §921(d), the case was dismissed for lack of subject matter jurisdiction. As such, the court declined to address Crigler's contention that Chemonics had failed to comply with their obligations in the administrative proceedings, or Crigler's request for attorney's fees and costs. (USDC MDFL, August 16, 2018) 2018 U.S. Dist. LEXIS 138520
COURT QUESTION OF FACT PRECLUDES 905(B) SUMMARY JUDGMENT (CONT.)
GUIDRY V. NOBLE DRILLING SERVICES INC, ET AL.
Glen Guidry was a longshoreman 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. Guidry sued Noble Drilling Services, Inc, Noble Drilling Exploration Company, and Noble Drilling (U.S.), LLC, claiming that he was injured as a result of the defendant's negligence and seeking relief under general maritime law and the LHWCA. It was undisputed that Guidry is not a Jones Act seaman. Liberty Insurance Corporation was the LHWCA insurer for VAM. Liberty paid compensation, indemnity and medical payment to Guidry. Liberty entered the lawsuit as an intervenor, seeking repayment for Noble moved for summary judgment, which the Court denied based upon questions of fact [see May 2018 Longshore Update]. Thereafter, Guidry and the Noble both filed motions for summary judgment against Liberty, seeking dismissal on the ground that Liberty waived its right to subrogation. Liberty opposed the motion, contending that its waiver was subject to the obligations assumed by VAM. It further contended that VAM did not assume any obligations under the terms of the contract, and the movants have not pointed to any other evidence that VAM assumed any obligations. The court agreed, finding the Noble defendants had failed to show that VAM assumed any obligation in regards to subrogation rights towards other contractors. Without any evidence to the contrary, the court assumed that the clause restricting the wavier to the extent that VAM assumed obligations had meaning, and could not simply be ignored. Because Noble failed to address the issue and provide evidence to show that all of the explicit terms of the contract had been satisfied, it was not entitled to summary judgment. Accordingly, the motions for summary judgment by Guidry and Noble seeking to dismiss Liberty’s claims were denied. (USDC EDLA, August 28, 2018) 2018 U.S. Dist. LEXIS 146119
LONGSHOREMAN’S FRAUDULENT SEAMAN CLAIMS DISMISSED
TSUHLARES V. ADRIATIC MARINE, LLC, ET AL.
Jason Tsuhlares filed a seaman's complaint for damages against Adriatic Marine, LLC and Bailey's Catering, LLC, seeking maintenance and cure and damages under the Jones Act and general maritime law. In the alternative, Tsuhlares has pled entitlement to damages under §905(b) of the LHWCA. Tsuhlares alleged that while aboard Adriatic Marine’s vessel, he fell down the wheelhouse stairway, due to the unseaworthiness of the vessel and negligence of the defendants, and allegedly suffered serious and permanent injuries. At the time of the alleged incident, Tsuhlares was working as a cook, employed by Bailey's, which does not own any vessels, and is typically hired to provide domestic cooks and services to remote logistic locations in support of offshore oilfield activity. Tsuhlares further alleged that he was the borrowed servant, joint employee or sub-agent of Adriatic Marine. Tsuhlares was employed by Bailey's, and had worked a total of 487 days, for thirteen different clients at twenty different locations. In addition to working aboard vessels, 42% of Tsuhlares' days worked with Bailey's were spent aboard fixed platforms. Adriatic moved for partial summary judgment seeking a determination that Tsuhlares is not a seaman for purposes of the Jones Act, such that his claims against Adriatic under the Jones Act, for maintenance and cure, and under the general maritime law for unseaworthiness should be dismissed with prejudice. Rather, Adriatic argued that Tsuhlares is a longshoreman, presently receiving benefits under the LHWCA, such that his recovery against Adriatic was limited to the claims afforded under §905(b), as alternatively pled in the complaint. In his complaint, Tsuhlares alleged that he was assigned to and did perform at least thirty percent of his work as a cook on and aboard a fleet of vessels under common ownership and control. However, the court found that the record plainly did not support that allegation. The proper inquiry is limited to Tsuhlares' time spent on Adriatic vessels, which accounts for a combined 46 days. Given that Tsuhlares only spent approximately 9% of his total employment with Bailey's serving aboard Adriatic vessels, he had only a transitory or sporadic connection to its vessels and failed to satisfy Chandris's second prong. The court held that Tsuhlares was not a seaman as a matter of law. Accordingly, Adriatic Marine's motion for summary judgment as to Tsuhlares' claims under the Jones Act, for maintenance and cure, and under the general maritime law for unseaworthiness was granted and those claims were dismissed with prejudice. (USDC WDLA, August 2, 2018) 2018 U.S. Dist. LEXIS 130154
COURT SUA SPONTE QUESTIONS ITS JURISDICTION IN THE CASE
PALMER V. H&E EQUIPMENT SERVICES, LLC, ET AL.
Derrick Palmer was welding on a barge owned by Amherst Madison, Inc., as an alleged Jones Act seaman and employee of H&E Equipment Services, LLC, when he allegedly suffered burns to his face, inner ear, and nostrils, after the weld job "flared" in a confined space. Palmer filed suit in state court, claiming his alleged injuries were due to defendants' failure to set up the proper equipment. Amherst removed the case to federal court explicitly asserting diversity jurisdiction under 28 U.S.C. §1332.4. Amherst Madison is a corporation, organized and existing under the laws of the State of Indiana, with its primary place of business in the State of West Virginia. Amherst submitted that the alleged Jones Act claims have been fraudulently pled, and H&E Equipment included as a defendant to prevent removal of the claim on the basis of diversity. Contrary to the allegations of the petition, Palmer’s suit against H&E Equipment is exclusively governed by the LHWCA, and H&E Equipment was tort immune. Upon information and belief, plaintiff has joined H&E Equipment as a co-defendant in an attempt to destroy diversity. The court agreed that Palmer was not the employee or borrowed employee of Amherst and any claim against Amherst arose under the general maritime law, not the Jones Act. However, the court observed it was not apparent from the face of the petition or notice of removal that the court had subject matter jurisdiction over the case under 28 U.S.C. §1332(a). Proper information regarding the amount in controversy is necessary to establish the court's diversity jurisdiction. The general allegations do not contain enough information regarding the actual injuries, or the nature of the injuries to determine the amount in controversy. Additionally, although Amherst explicitly premises the court’s subject matter jurisdiction on 28 U.S.C. §1332, it is not clear whether federal question subject matter jurisdiction over the suit may also exist. Accordingly, the court ordered that Amherst file a memorandum and supporting evidence concerning subject matter jurisdiction within ten days, which should address whether the court had diversity or federal question subject matter jurisdiction, as well as the basis for the exercise of such jurisdiction. In response, Palmer was ordered to file either a memorandum and supporting evidence regarding subject matter jurisdiction, or a Motion to Remand for lack of subject matter jurisdiction. (USDC MDLA, August 9, 2018) 2018 U.S. Dist. LEXIS 134431
COURT APPLIES NEW FIFTH CIRCUIT MARITIME CONTRACT TEST
MAYS V. C/W RE ALL C DIVE LLC ET AL.
This case started as a consolidated action arising from a pipeline explosion. The remaining plaintiff, Adam Zima, alleges that he worked for C-Dive, LLC aboard its vessel, servicing a pipeline owned by Gulf South Pipeline Company, LP, a subsidiary of Boardwalk Pipelines, LP. Boardwalk Pipelines entered into a Master Services Agreement with C-Dive. The MSA was a blanket contract that did not itself authorize any specific work but that would be followed by work orders between the parties adopting the terms of the MSA. During work there was a release of gas that caused an explosion and allegedly injured Zima. C-Dive and Gulf South entered into a work order, whereby C-Dive was to plug and abandon the pipeline later involved in the explosion, which contained a provision incorporating the MSA. Zima brought claims for Jones Act negligence, and unseaworthiness against C-Dive and Gulf South. C-Dive sought a limitation of liability pursuant to 46 U.S.C. §30505. Gulf South brought a cross-claim against C-Dive, alleging that C-Dive was required to defend and indemnify Gulf South under the MSA. Gulf South also made a third-party claim against Catlin Insurance Company and New York Marine & General Insurance Company as an additional insured under policies those companies issued to C-Dive. The court held that the MSA required C-Dive to make Gulf South an additional insured on C-Dive's comprehensive general liability policies issued by Catlin and New York Marine, triggering coverage for Gulf South via automatic additional insured clauses in those policies. The C-Dive parties sought dismissal of Gulf South's claim for defense, indemnity, and additional insured status pursuant to the Louisiana Oilfield Anti-Indemnity Act. Gulf South sought a partial summary judgment finding that no state law anti-indemnity act applied to prevent its claims because the MSA and work order were maritime contracts. The C-Dive parties argued that, pursuant to the Outer Continental Shelf Lands Act, Louisiana law applied to govern the contracts and the Louisiana Oilfield Anti-Indemnity Act therefore rendered the defense, indemnity, and additional insured requirements therein void and unenforceable. Gulf South, on the other hand, argued that general maritime law applied to govern the contract, under which the indemnity and defense provisions therein are enforceable. The court used the Fifth Circuit’s recently espoused new test for the resolution of the issue of whether the contracts involved were maritime in nature. Finding that the contracts were, indeed, maritime contracts, the court held that general maritime law applied by its own force and state law did not apply to invalidate the indemnity, defense, and additional insured provisions. Gulf South's Motion was granted and the C-Dive parties' motion was denied. (USDC EDLA, August 1, 2018) 2018 U.S. Dist. LEXIS 128539
In a separate ruling in the same case the court addressed C-Dive’s motion for partial summary judgment on Zima’s Jones Act negligence claim. Zima and Gulf South argued that C-Dive was liable under the Jones Act for its negligence in causing the explosion during which Zima was injured, alleging that C-Dive was negligent in continuing to jet despite being unsure whether it was jetting the correct pipeline, failing to invoke stop work authority when a diver discovered a broken stand-off on the pipeline, and failing to invoke stop work authority when its crew realized it had inadequate drawings of the pipelines in the area. C-Dive argued that the scope of work for the project required it to jet the entire area surrounding the pipeline to be abandoned and therefore it was not negligent in jetting the adjacent pipeline. It also pointed out that even Gulf South's engineering expert found that the broken stand-off did not prevent the end connector from performing as designed. The court found the Zima and Gulf South had provided sufficient evidence to create a material issue of fact as to whether C-Dive was negligent and whether that negligence played any part in Zima’s injury. C-Dive's Motion was denied. (USDC EDLA, August 2, 2018) 2018 U.S. Dist. LEXIS 129710
And on the Admiralty front . . .
FIFTH CIRCUIT HOLDS THE HIMALAYA CLAUSE IS ENFORCEABLE
ROYAL SMIT TRANSFORMERS BVV. ONEGO SHIPPING & CHARTERING, BV, ET AL.
Royal Smit Transformers, BVV tried to ship a few of its transformers from the Netherlands to Louisiana. It contracted with an intermediary to arrange the transport. The transformers were damaged along the way, so Royal Smit and its insurers tried to sue the carriers with whom the intermediary had contracted. But the district court concluded they were precluded from doing so because of a Himalaya Clause in the company's agreement with the intermediary. The court granted summary judgment in favor of the carriers. That decision was appealed. The appellate court began its analysis by addressing a preliminary legal question that was not contested by the parties, yet had never been addressed by the Fifth Circuit: whether the specific type of Himalaya Clause at issue here is enforceable. The appellate panel decided to join sister courts in the Second and Ninth Circuits in concluding that it the Himalaya clause at issue was indeed enforceable, and concluded that the district court properly granted summary judgment in favor of the carriers because a Himalaya Clause in the bill of lading protected the carriers. The appellate court held that Himalaya clauses shielding a common carrier's agents from suit do not run afoul of the general prohibition set forth in 46 U.S.C. §30701. Royal Smit did not dispute the validity of the through bill of lading as a binding maritime contract and no evidence impacted the enforcement of the Himalaya Clause. The appellate court found that the district court correctly refused to look to extrinsic evidence to discern an intent contrary to the plain text of the bill of lading. (5th Cir, August 2, 2018) 2018 U.S. App. LEXIS 21466
APPELLATE COURT RESOLVES CONFUSING DESIGNATION OF ARBITRATION SITUS
INTERNAVES DE MEXICO S.A. DE C.V. V. ANDROMEDA STEAMSHIP CORP, ET AL.
This case arose out of a battle over where the parties agreed to arbitrate an admiralty and maritime dispute. Andromeda Steamship Corporation and Internaves de Mexico s.a. de C.V. entered into a shipping contract whereby Andromeda agreed to furnish Internaves with a vessel to transport an electric transformer from Brazil to Mexico. Internaves claimed that Andromeda failed to tender the vessel on the agreed upon date, while Andromeda countered that Internaves never delivered the transformer to the vessel. The contract unambiguously required the parties to submit their dispute to arbitration. However, the contract contained conflicting provisions regarding where the parties agreed to arbitrate. The district court could not ascertain the site of arbitration from the agreement itself and, therefore, resorted to the statutory default forum, compelling arbitration in its own district -- the Southern District of Florida. Andromeda appealed, arguing that the district court had erred in proclaiming the contract hopelessly ambiguous as to the selection of a forum. Had the court waded through the contract's interpretive tangles, Andromeda says, it would have discovered the parties' mutually agreed upon intent to arbitrate in London, where it claims the arbitration must be held. Internaves suggests, however, that due to the Contract's murkiness, the district court properly ordered arbitration in Miami. After thoroughly reviewing the contract provisions, the appellate court found that Part I of the parties' international maritime charter party contract provided for "London arbitration, English Law." While Part II provided for arbitration in New York under U.S. law, the contract also provided that in the event of a conflict, Part I's provisions would prevail over those of Part II. Therefore, the appellate court found that the district court erred ordering arbitration within its own district under 9 U.S.C. §4 on the basis that the parties had failed to provide for a specific arbitral forum, instead of honoring the contract's conflicts provision and ordering arbitration in London under English law. The district court’s judgment was reversed and the case was remanded. (11th Cir, August 1, 2018) 2018 U.S. App. LEXIS 21280
APPELLATE COURT AFFIRM JURY VERDICT ON FAILURE TO WARN CLAIM
WILLIAMS V. MANITOWOC CRANES, LLC
A crane accident left John Williams Jr. physically and mentally incapacitated. Wanda Williams, his wife, sued the crane manufacturer, Manitowoc Cranes, under Mississippi's products liability statute. Following a lengthy trial, a jury found that Manitowoc failed to warn Model 16000 Series crane operators that, if the crane tips over, large weights stacked on the rear of the crane can slide forward and strike the operator's cab. The district court entered a final judgment against Manitowoc for $2.8 million in actual economic damages and $600,000 in non-economic damages, resulting in a total judgment of $3.4 million plus post-judgment interest. Manitowoc filed a motion for judgment as a matter of law, or, in the alternative, motion for a new trial. Manitowoc asserted that it deserved judgment as a matter of law because Williams failed to prove her failure-to-warn claim. Manitowoc claimed that it adequately warned about causing a tip-over, Williams’ misuse of the crane caused the tip-over, and the proposed additional warning would not have prevented Williams’ injuries. Manitowoc also asserted, in the alternative, that it deserved a new trial because the district court improperly qualified its expert, and the court erred in admitting evidence regarding prior accidents involving other Manitowoc cranes and in excluding evidence about Williams’ character. The district court denied Manitowoc's motions, and Manitowoc timely appealed. The appellate court found that Manitowac was not entitled to judgment as a matter of law on the plaintiff's failure-to-warn claim. The jury had an adequate basis for finding Manitowoc’s warning inadequate, that is, for finding that a reasonably prudent person would have informed crane operators about the unique danger posed by falling counterweights, in accordance with Miss. Code Ann. §11-1-63(c)(ii). The appellate court also agreed that the jury had an adequate basis for finding that an alternative warning could have communicated valuable additional information about the falling counterweight danger, allowing the injured worker to avoid injury. Thus, the district court correctly ruled on the motion for judgment as a matter of law. The district court did not abuse its discretion by finding plaintiff's expert qualified to testify as a warnings expert, pursuant to Fed. R. Evid. 702. The district court’s judgment was affirmed. (5th Cir, August 3, 2018) 2018 U.S. App. LEXIS 21618
APPELLATE COURT ADDRESSES TRADE DRESS ACTION
YELLOWFIN YACHTS, INC. V. BARKER BOATWORKS, LLC, ET AL.
Yellowfin Yachts, Inc. is a manufacturer of high-end fishing boats, producing predominantly center-consoled, open-fisherman styled boats ranging between twenty-one and forty-two feet. According to Yellowfin, these boats all have the same "swept" sheer line, meaning a gently sloped "s"-shaped line that runs upward from the point at which a boat's hull intersects with the deck to the boat's lofted bow. This swept sheer line, described by Yellowfin as "unique," is the subject of its trade dress claims. Yellowfin hired Kevin Barker in 2006 as a vice president of sales. Although Yellowfin presented Barker with a proposed employment agreement which included confidentiality clauses, Barker never executed the agreement. Barker left Yellowfin in 2014, not encumbered by a non-competition or non-solicitation contract, and founded a competitor, Barker Boatworks, LLC. On his last day at Yellowfin, Barker downloaded hundreds of files from Yellowfin's main server. These files contained detailed purchasing history and specifications for all of Yellowfin's customers, as well as drawings and style images for Yellowfin boats and related manufacturing information. After leaving Yellowfin, Barker retained marine architect Michael Peters to design a twenty-six-foot bay boat based on Barker's specifications. These specifications, according to Yellowfin, were derived directly from Yellowfin's own bay boats, and the Barker boat's sheer line nearly replicated that of Yellowfin. Barker Boatworks opened for business in July 2014 and has since competed with Yellowfin in the same "niche" center-console fishing-boat market. Yellowfin filed suit against Barker Boatworks and Kevin Barker, pleading claims for trade dress infringement and false designation of origin under Section 43(a) of the Lanham Act, 15 U.S.C. §1125(a), common-law unfair competition, common-law trade dress infringement, and violation of Florida's Trade Secret Act.After unsuccessfully moving to dismiss Yellowfin's complaint, Barker Boatworks moved for summary judgment on all of Yellowfin's claims. The court found that Yellowfin did not adequately describe any distinctive feature of its sheer line, its sheer line was functional and thus not protectable as trade dress, and no reasonable jury could conclude that a potential buyer would likely confuse a Barker boat for a Yellowfin. The court then held that, because a reasonable jury could not conclude that a potential buyer would likely confuse the two boats, Yellowfin's claims of Section 43(a) false designation of origin, common-law trade dress infringement, and common-law unfair competition also failed. Finally, the court found that Yellowfin failed to identify a protectable, misappropriated trade secret, and, regardless, that Yellowfin did not make "reasonable efforts" to protect all of its alleged trade secrets. The court therefore rejected Yellowfin's trade secret claim. The district court granted the motion in full. Yellowfin appealed the district court’s rulings. The appellate court affirmed, holding that Yellowfin’s claim for trade dress infringement under Lanham Act §43(a) (15 U.S.C. §1125(a)) could not survive summary judgment because no reasonable jury could find a likelihood of confusion between Yellowfin’s and those of Baker, absent evidence that its design was recognizable enough to be strong trade dress, that any copying was done with intent to confuse consumers, or that any potential purchasers actually were confused in the postsale context. The appellate court also held that a trade secret misappropriation claim under the Florida Uniform Trade Secrets Act, Fla. Stat. §§688.001-688.009, failed because the identities of suppliers were well known, relationship-based discounts lacked independent economic value to a new competitor, and the manufacturer did not make reasonable efforts to maintain the secrecy of customer information under Fla. Stat. § 688.002(4). Summary judgment was affirmed. (11th Cir, August 7, 2018) 2018 U.S. App. LEXIS 21918
SUIT AGAINST MANUFACTURER OF PLEASURE YACHT BASED ON REDHIBITION
ATLANTIC SPECIALTY INSURANCE CO., ET AL. V. PORTER, INC., ET AL.
This case arose from a fire onboard a recreational yacht owned by Chad Gonzalez and insured by Atlantic Specialty Insurance Company. The boat caught fire while secured in its usual slip at a marina. Gonzalez sued the boat's manufacturer, Porter, Inc., alleging claims under redhibition and the Louisiana Products Liability Act, alleging that the boat contained a defect that allowed water to drip from the deck and wet bar area into the wiring harness below, leading to corrosion of certain bundled electrical wires known as "pigtails" on the port side of the boat, theorizing that this corrosion caused an electrical current to travel through the boat's wiring system until it melted wires that in turn ignited a factory-installed sectional sofa on the starboard side of the vessel. Porter maintained that the cause of the fire was undetermined, and that there was nothing to indicate a connection between the corroded pigtail and the fire. After a two-day bench trial, the court found that Gonzalez failed to establish that the fire occurred because of a redhibitory defect or an unreasonably dangerous design flaw and rendered judgment in favor of Porter. Gonzalez appealed, challenging the district court's exclusion of experts, as well as its ultimate judgment. The appellate court found the Gonzalez and his insurer did not argue that their expert should have been allowed to testify after the videos were excluded, nor did they claim to have met the substantial similarity requirement. Because Gonzalez failed to show a substantial similarity of circumstances and conditions, and because the expert's conclusions were based on unreliable tests, the appellate court concluded that the district court did not abuse its discretion in excluding the expert's report and testimony. Nor did the district court abuse its discretion in excluding Gonzalez’s second expert because there was too much of a gap between his report and his subsequent deposition. The judgment of the district court was affirmed. (5th Cir, August 7, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 22093
OPEN AND OBVIOUS HAZARD DOES NOT SUPPORT NEGLIGENCE CLAIM
LEROUX V. NCL BAHAMAS LTD.
Sherilyn J. LeRoux boarded NCL (Bahamas) Ltd.’s cruise ship, and stayed in a cabin with an exterior balcony. Passengers accessed the balcony through a door that opened into the cabin. The door has a threshold that is several inches high and includes a metal sliding glass door track. LeRoux exited her cabin onto the balcony. After more than two hours on her balcony, she attempted to reenter her cabin just after sunset. The balcony light was out, but a light was on inside the cabin. As she moved to enter her cabin through the door, she stepped up to avoid the threshold, but her right toe caught in the metal track, causing her to fall into her cabin and allegedly sustain injuries. Although aware of the need to step over the threshold, LeRoux maintained that she would have been more careful had NCL warned her of the danger. LeRoux filed a lawsuit against NCL, arguing that NCL negligently failed to warn her of the dangerous threshold and that the threshold should have been designed and built such that it did not constitute a tripping hazard. The district court granted summary judgment for NCL, rejecting LeRoux’s failure to warn claim because the threshold was an open and obvious danger that NCL had no duty to warn LeRoux about and LeRoux failed to demonstrate that NCL had notice of the alleged dangerous condition. The district court also granted summary judgment on LeRoux’s improper design claim, holding that LeRoux failed to demonstrate that NCL was responsible for the alleged improper design of the threshold. LeRoux appealed only the district court's grant of summary judgment on her failure to warn claim. The appellate court agreed with the district court that the risk-creating condition, the raised threshold, was open and obvious to LeRoux by her own account. She admitted she had previously stepped over the door's threshold and down onto the balcony without incident. LeRoux testified that she saw the threshold that separated her cabin from the balcony and knew that she had to lift her foot up and over the threshold to get into the cabin without tripping. She also testified that she recognized the different colors distinguishing the balcony, threshold, cabin, and ship, and could discern the difference between the balcony floor and the cabin floor. LeRoux simply failed to negotiate a known and obvious hazard. NCL did not breach its duty of reasonable care by failing to warn her of a condition of which she was aware and any reasonable person in her position would have been aware. The appellate court affirmed the decision of the district court granting summary judgment. (11th Cir, August 14, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 22515
APPELLATE COURT DISMISSES LIMITATION ISSUE FOR LACK OF JURISDICTION
SCF WAXLER MARINE, LLC V. ARIS T M/V
A stream of litigation followed a marine accident that resulted in damages estimated to exceed $60 million. The underlying fault or liability for that accident was not at issue on appeal. Rather, Valero, Shell, and Motiva asked the appellate court to resolve whether the excess insurers of one of the involved vessels may limit their liability to that of the insured vessel. On a partial motion for summary judgment, the district court held that the Protection and Indemnity policy covering the vessel had a clause permitting the excess insurers to limit their liability to that of the insured vessel. Valero, Shell, and Motiva timely appealed, asserting that the appellate court had jurisdiction to hear an appeal of that interlocutory order under 28 U.S.C. §1292(a)(3). The appellate court disagreed, finding that it lacked appellate jurisdiction, under 28 U.S.C. §1292(a)(3), to review the district court's decision because the district court's order and reasons failed to determine the rights and liabilities of the parties. The district court decided the boundaries of a party's liability through determination of whether a contractual provision permitted them to do so, but whether appellants were legally permitted to recover anything from the excess insurers and, if so, how much remained to be determined. The appeal was dismissed for lack of jurisdiction. (5th Cir, August 29, 2018) 2018 U.S. App. LEXIS 24567
TRIAL COURT ERRED IN NOT CONDUCTING IN CAMERA REVIEW
IN RE ATLANTIC SOUNDING CO., INC., Et AL.
Reco Graham, who was employed as a deckhand on a dredge when he sustained his alleged injuries, brought the underlying case against Atlantic Sounding Company and Weeks Marine, Inc. (Collectively “Weeks”) for personal injuries. In response to Graham's interrogatories and first request for production, Weeks stated that they were withholding certain documents, photographs, video tapes, and audio tapes, claiming that those items were protected by attorney-client and attorney work-product privileges. Weeks served a privilege log on Graham regarding their answers, objections, and assertions of privileges. Graham, in turn, filed a motion to compel Weeks to respond to his interrogatories and request for production. Weeks filed a response to Graham's motion to compel, and the trial court held a hearing and granted Graham's motion to compel, Weeks a mandamus proceeding, asking the appellate court to compel the trial court to set aside its order because the trial court abused its discretion by failing to conduct an in camera review of the items Weeks claimed were privileged. The parties disputed whether Weeks had to establish a prima facie case of the privilege with evidence such as an affidavit or testimony before the trial court could decide whether to conduct an in camera review of the subject documents. Weeks did not submit any affidavits or live testimony at the hearing in support of their claim that the documents and tapes were protected by the attorney work-product and attorney-client privileges. However, in their response to the motion to compel, Weeks offered to provide the withheld documents to the trial court for an in camera review. Also, during the hearing, Weeks offered to tender the documents to the trial court several times for an in camera review, but the trial court refused the offer each time. The trial court had no evidence available other than the documents to which Weeks claimed the attorney-client and work-product privileges applied. Under these circumstances, the appellate court found that the trial court was obligated to conduct an in camera review before granting the motion to compel and abused its discretion by failing to do so. The appellate court also concluded that Weeks did not have an adequate remedy by appeal because an appeal cannot cure the trial court's error. Having determined that the trial court clearly abused its discretion by ordering the allegedly privileged items produced without performing an in camera review and that Weeks did not have an adequate remedy by appeal, the appellate court conditionally granted Weeks’ petition for writ of mandamus and directed the trial court to set aside its order compelling production of items that Weeks claimed are privileged and conduct an in camera review of those items, and then make a ruling on whether to compel or deny production of those items. (Tex. 14th App. Ct, August 28, 2018) 2018 Tex. App. LEXIS 6880
APPELLATE COURT REVERSES JURISDICTIONAL FINDING
MEGADRILL SERVICES LTD, ET AL. V. BRIGHOUSE
Tom Brighouse worked as a mechanic aboard an oil and gas rig operated by Depthwize Nigeria, Ltd. Brighouse alleged he was injured aboard the rig, and sought damages for his alleged injury, and filed his lawsuit against Megadrill Services Limited, Depthwize, MD Nigeria LLC, and Robert P. Dunn. Brighouse sued the defendants for breach of contract, Texas Deceptive Trade Practices-Consumer Protection Act violations, fraud, negligent misrepresentation, negligence, unseaworthiness, and wrongful denial of maintenance and cure. The defendants filed special appearances supported by affidavits. The principals of Megadrill, MD Nigeria, and Depthwize averred that the companies never had contacts with Texas and lacked the requisite minimum contacts with Texas to warrant the exercise of personal jurisdiction as to this lawsuit. After completing jurisdictional discovery, Brighouse filed a single response to the special appearances, asserting that Dunn and Megadrill invoked the Texas court system by filing a lawsuit in federal district court in Houston and using a Harris County district court in attempting to collect on the judgment from that lawsuit. After a hearing, the trial court signed an order denying the special appearances. This interlocutory appeal challenging the trial court's denial of the appellants' special appearances timely followed. The appellate court noted that the claims asserted by Megadrill and Dunn in Houston federal court were entirely unrelated to Brighouse's lawsuit. And Brighouse failed to explain why Megadrill's and Dunn's prior federal court lawsuit or the subsequent Harris County action to enforce the federal court judgment—both of which are completely untethered to the present lawsuit—meet the common law definition of waiver on which he relied. The initiation of the federal court action and state court enforcement suit neither implied consent to be sued for all purposes in Texas, nor did they, in and of themselves, constitute sufficient continuous and systematic contacts sufficient to render Megadrill and Dunn essentially at home in Texas. The appellate court therefore held as a matter of law that Megadrill and Dunn did not consent to personal jurisdiction in the present action by previously filing a federal court lawsuit in Texas on an unrelated matter. The present facts viewed most favorably to Brighouse did not support a conclusion that Dunn and Megadrill waived their right to object to personal jurisdiction or impliedly consented to general jurisdiction in Texas. Thus, the trial court erred in determining it had personal jurisdiction over the defendants on that basis. Because the record conclusively showed that Brighouse's alleged slip and fall accident did not arise out of or relate to the refurbishment work performed in Texas, the trial court erred in concluding that it had specific jurisdiction over Megadrill and MD Nigeria. The trial court lacked personal jurisdiction over Megadrill, Dunn, and MD Nigeria. Because Brighouse's alter ego or veil-piercing theories of jurisdiction against Depthwize rest on the propriety of jurisdiction over Megadrill or Dunn, these bases for jurisdiction were likewise negated. The appellate court held that the trial court erred in denying the appellants' special appearances and reversed and rendered judgment dismissing Brighouse's claims against Megadrill, MD Nigeria, Depthwize, and Dunn for lack of personal jurisdiction. (Tex 14thApp. Ct., August 2, 2018) 2018 Tex. App. LEXIS 6013
APPELLATE COURT REVERSES SUMMARY RULING ON VESSEL STATUS
PARTIN V. SUPERIOR ENERGY SERVICES, INC.
Vincent Partin allegedly injured his left foot, ankle, and heel when he slipped exiting his intermodal shop container located onshore. Partin filed suit against Superior Energy Services asserting claims under the Jones Act. Superior answered and asserted, among other defenses, that Partin did not qualify as a seaman for purposes of the Jones Act. Superior subsequently filed a motion for summary judgment seeking dismissal of Partin's claims because Partin was not a Jones Act seaman. Specifically, Superior argued that Partin was not a Jones Act seaman because the vessel undergoing sea trials was not a vessel "in navigation" when Partin's alleged accident occurred, and Partin's work as a shore-based welder did not contribute to the mission of the vessel. The trial court granted Superior’s motion for summary judgment. Partin appealed the trial court's granting of Superior's motion for summary judgment on his Jones Act claim. Partin argued that the trial court erred by granting summary judgment on his claim because his seaman status had already been resolved by a federal district court in a prior suit between him and Superior. Partin argued that Superior did not conclusively prove that he was not a Jones Act seaman, and there is a question of material fact as to whether he qualified as a Jones Act seaman. The appellate court noted that the cost of the conversion of the vessel in question was substantial, but there was no evidence in the record to establish the overall cost of conversion or the cost of conversion relative to the value of the ship. The scope of the work converting the vessel from a cargo barge to a manned emergency response vessel was unquestionably extensive and took at least nine months before sea trials began. Thus, there is evidence to strongly suggest that the vessel was removed from navigation for a period of time during its extensive overhaul and conversion. However, the appellate court pointed out that this was not necessarily dispositive of the question of whether Superior conclusively established that the vessel was out of navigation when the accident occurred. The record reflected that the vessel, with Partin aboard, had been on four sea trials before Partin's accident and that during two of them, the dome he had been working on was successfully deployed and retrieved. The vessel had also received its certificate of inspection from the Coast Guard certifying it was a "floating outer continental shelf facility" which fulfilled the requirements for a "safe manning document" with a crew of up to seventy-two persons. A Certificate of Classification was issued by the American Bureau of Shipping classifying it as a "Floating Offshore Installation," which means that the vessel was in compliance with the regulatory and classification society requirements for that type of vessel and it's intended service. The appellate court concluded that the summary judgment evidence before it did not conclusively establish that the vessel was not used, or capable of being used, as a means of transportation on water. Although additional work was done after Partin's accident, including a significant amount of work performed at a local shipyard, the record did not indicate how long the barge remained in the shipyard or the type of work that was done. Like the vessel in Chandris, there was at least a question of fact as to whether or not the vessel was capable of transporting people or goods by sea when the accident occurred and, as the court held in Chandris, the issue should have been submitted to the jury. Thus, there is evidence in the record that the vessel, at the time of Partin’s injury, was in the hands of its end user and operator and was fully functional and suitable for deployment for its intended purpose on the Outer Continental Shelf. In summary, the appellate court concluded that reasonable people could disagree as to whether or not the vessel was capable of transportation by sea when the accident occurred. The conflicting and, at times, ambiguous evidence presented raised a question of material fact as to whether the vessel was out of navigation when the accident occurred. Partin's seaman status, which includes evaluation of whether the vessel was in navigation when he was injured, is a heavily fact-specific question that is normally left for a jury to decide. Therefore, the appellate court reversed the trial court's order granting summary judgment on Partin's claims and remanded the case to the trial court for further proceedings consistent with its opinion. (Tex. 1st App. Ct., August 14, 2018) 2018 Tex. App. LEXIS 6334
APPELLATE COURT HOLDS PILOT ASSOCIATION IMMUNE FROM LIABILITY
WESTERGREN, ET AL. V. HOUSTON PILOTS ASSOCIATION
Captain Larry Evans piloted a Maersk outbound in the Houston Ship Channel, while Captain George Reeser piloted another vessel inbound up the ship channel. When heavy fog rolled in and reduced visibility significantly, Houston Pilots suspended pilot boardings of inbound ships. But vessels already under way continued on. The two vessels neared each other, When the vessel being piloted by Captain Resser crossed the channel into the path of the Maersk vessel, and the two collided. As a result of the collision, 88,200 gallons of methyl tertiary butyl ether spilled from the cargo of the Maersk vessel and the spill reached private properties, requiring a significant amount of remediation and causing personal injury to two of the property owners. The homeowners sued Houston Pilots and others, asserting claims under Texas law for negligence, gross negligence, negligent trespass, and private nuisance. With regard to Houston Pilots, the homeowners alleged that the association was negligent in multiple respects that caused the collision, including that it negligently failed to develop and promulgate navigational standards in the ship channel and failed to train and supervise the individual pilots navigating the vessels. Houston Pilots moved for traditional summary judgment on two grounds. First, it contended that under federal maritime law as set forth in Guy v. Donald, 203 U.S. 399 and its progeny, pilot associations are immune from vicarious liability or direct liability related to the alleged negligence of its pilots. Second, Houston Pilots argued that as an unincorporated association of independent contractor pilots, it has no legal existence separate from its individual pilots. As a result, any judgment against it for its own negligence would in effect be a judgment against the individual pilots jointly and severally, triggering the immunity the Legislature provided to pilots in section 66.082 of the Transportation Code. The homeowners responded to the motion, arguing that the rule set forth in Guy v. Donald and its progeny did not insulate Houston Pilots from liability for its own direct negligence. The homeowners further argued that section 66.082 did not provide immunity because a fact issue existed regarding whether Houston Pilots is an unincorporated association or a general partnership under Texas law. Each side raised objections to the other side's evidence, though the trial court did not rule on the objections. The trial court granted Houston Pilots' motion without stating the grounds for its decision. The trial court then severed the claims against Houston Pilots, making the summary judgment final. The homeowners raise appealed, questioning whether Texas law provided complete immunity to pilot associations for the direct negligence of the organization itself and whether a genuine issue of material fact existed as to Houston Pilots' status as a partnership under Texas law and, if so, whether Houston Pilots may be held vicariously liable for the actions of its member pilots. The appellate court concluded that the pilots association was entitled to immunity from liability under Tex. Transp. Code Ann. §66.082, and therefore the trial court properly granted the association summary judgment, because a judgment against the association as an unincorporated association or a general partnership would hold individual pilots liable as members or partners, and the homeowners' claims arose from the alleged acts or omissions of other pilots or of an organization of pilots, as they pleaded claims of negligence, gross negligence, trespass, and private nuisance due to the association's causing a collision, which resulted in the spill. The homeowners' claims related to pilot services because formulating and implementing ship movement strategies for pilots' use related at least indirectly to the acts of a pilot in conducting a vessel. The trial court’s judgment was affirmed. (Tex. 14th App., August 7, 2018, UNPUBLISHED) 2018 Tex. App. LEXIS 6133
NO DIRECT INJURY EQUATES TO NO LIABILITY (CONT.)
AHMED V. PORT CITY MARINE SERVICES, INC.
Saleh Ahmed was hired by Port City Marine Services, Inc. as a deckhand. As a result of hydraulic arm breakdowns in hold six of the vessel Ahmed was assigned to, there was a cargo overload on the conveyor belt and massive spillage of cement onto the tunnel deck. Amhed was responsible for shoveling cement off of and then back onto the conveyor belt and claimed he was forced to shovel in cramped and ergonomically hazardous conditions, which allegedly caused injuries to his right shoulder and back Ahmed was diagnosed with rotator cuff tendinopathy with associated posterior superior glenoid labral tear in his right shoulder, as well as cervical and lumbar pain with radiculopathy in his neck and back and underwent an invasive operative procedure, including extensive debridement of the shoulder, complete synovectomy, AC joint re-section, acromialplasty, arthroscopic rotator cuff repair, and SLAP repair. He later underwent an invasive surgical procedure on his cervical spine. Ahmed brought claims under the Jones Act and general maritime law based on a direct physical injury he contends was caused by the negligence of his employer and the unseaworthiness of the vessel. Port City asserted that there was no evidence that Ahmed was injured by any equipment malfunction, broken equipment, or other impact, arguing that, absent any physical impact, an injury is not compensable when an employee is engaged in the ordinary course of employment. Port City contended that Ahmed’s injuries stemmed from hard work, but not dangerous work. Ahmed argued that he would not have had to shovel and pound with the sledgehammer but for the breakdowns of the hydraulic rams that resulted in the cargo overload on the conveyor belt and massive spillage of cement onto the tunnel deck of the vessel. The court found that Ahmed’s argument that his injuries were attributable to inadequate or malfunctioning equipment was misplaced. The equipment malfunctions and incompetence of the conveyorman caused the spillage of cement onto the tunnel deck of the vessel. These were simply factors that caused the massive cargo spillage. Neither the spillage nor the malfunctioning equipment caused any direct harm to Ahmed. Only after Ahme undertook to shovel the spillage and use the sledgehammer was he injured. The court cited Rutherford for the proposition that there was no evidence that the plaintiff or any crewman had brought the issue of sore backs to the vessel owner's attention, stating that it is a fundamental principle that, under the Jones Act, an employer must have notice and the opportunity to correct an unsafe condition before liability will attach. Likewise, Ahmed had failed to produce any evidence that Port City had reason to foresee that Ahmed was at risk of suffering the injures he did while performing tasks that Ahmed and others had performed routinely without incident. There was no evidence that Ahmed or any other employee had made Port City aware of any injuries suffered performing such tasks or that such tasks were dangerous. The court found that there was no genuine dispute of material fact to support Ahmed’s claims pursuant to the Jones Act or general maritime law for unseaworthiness. Port City’s motion for summary judgment was granted [see February 2018 Longshore Update]. Ahmed filed a motion to reconsider the court's order granting summary judgment for Port City. The court found Ahmed’s motion timely, as it was filed one day after the court granted Port City’s motion for summary judgment. Nevertheless, the court denied Ahmed’s motion to reconsider because it presented issues already ruled upon by the court. Specifically, Ahmed’s motion presented the same Jones Act and unseaworthiness claims ruled upon by the court but simply offered different case law. Each "new case" Ahmed cited was decided years prior to the filing of his response to Port City’s motion for summary judgement and should have been raised at that time. The court concluded that it properly dismissed both Ahmed’s Jones Act and unseaworthiness claims. Ahmed’s motion to reconsider was denied. (USDC, August 13, 2018) 2018 U.S. Dist. LEXIS 136078
MCCORPEN DEFENSE ON HOLD. COURT NOTES NO FURTHER LIABILITY (CONT.)
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 McCorpendefense. 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 McCorpen defense, 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 [see May 2018 Longshore Update]. Following the court’s allowed discovery, Sea Horse re-urged its motion for partial summary judgment on White’s claim for maintenance and cure. White timely filed an opposition. Following a review of Sea Horse’s evidence, the court found that there were no genuine issues of material fact with respect to any of the three prongs of the McCorpendefense. White did not dispute that the information he withheld from Sea Horse was material, that there was purposeful concealment, and that the conditions were essentially the same. Rather, White argued that it was unclear whether Sea Horse would have changed its hiring decision if White had been truthful. The court noted that Sea Horse’s HR Manager declared that Sea Horse would have inquired further to determine White’s employability if he had disclosed his true medical history. The court noted that, such a declaration, supported by the factual record, supported granting a motion for summary judgment on the materiality prong of the McCorpen defense. The court concluded that Sea Horse had offered uncontested evidence that, had White fully disclosed his decade-long treatment for back and leg pain, Summary judgment was granted in favor of Sea Horse on White’s claims for maintenance and cure. (USDC EDLA, August 8, 2018) 2018 U.S. Dist. LEXIS 133458
MOTION TO TAX COST RULED TO BE UNTIMELY
DUNN V. MARQUETTE TRANSPORTATION COMPANY, LLC
Kelvin Dunn was employed by Marquette Transportation Company, LLC as a boat captain. While off-duty, Dunn went to inspect a fuel leak in the engine room of the vessel. When he climbed down the stairs and entered the engine room, he slipped and fell, resulting in numerous fractures to his hip and femur, which required emergency surgery, as well as injuries to his lumbar spine. Dunn filed a Jones Act Claim to recover damages for personal injuries he sustained after a slip and fall, seeking past, present and future damages for lost wages and earning capacity, physical and mental pain and suffering, disability and loss of enjoyment of life, medical expenses, loss of found, and disfigurement, as well as any other damages recoverable under the law. Additionally, Dunn sought payments for maintenance and cure, punitive damages, attorney's fees and costs. The court held a bench trial and found in favor of Dunn and judgment was entered in his favor [see August 2017 Longshore Update]. Dunn then filed the current motion to tax costs under Rule 54(d)(1). Marquette opposed the motion as untimely. Dunn filed his motion 93 days after the entry of judgment and 38 days after the denial of a motion to alter judgment and amend findings of fact. The court noted that there is a 35-day deadline for filing a motion to review costs. Courts may accept late filings when the party can demonstrate "good cause" for the delay in filing. Dunn had only put forth that the late filing was due to "oversight on the part of his counsel. The court held that mistake or oversight by counsel does satisfy the "good cause" requirement for extending a deadline for filing. As the motion was filed well after the 35-day deadline and Dunn had not established good cause for the filing delay, his motion to tax costs was denied. (USDC EDLA, August 21, 2018) 2018 U.S. Dist. LEXIS 141590
EMPLOYER PREVAILS IN JONES ACT & UNSEAWORTHINESS CLAIMS (CONT.)
DEAN V. SEA SUPPLY, INC., ET AL.
This case arose out of injuries allegedly sustained by Johnny Dean, Sr. while he was employed as a captain on a Sea Supply, Inc. vessel. Dean alleged that he slipped and fell in the engine room and sustained injuries to his shoulder, neck, and back. Dean subsequently filed a complaint against Sea Supply, Inc., Sea Supply, Inc. COB, and the vessel, seeking damages under the Jones Act and general maritime law for defendant's alleged negligence and vessel unseaworthiness. He also sought maintenance and cure. Sea Supply denied liability claiming that Dean’s injuries were caused in whole or in part by Dean’s own actions. Following a three day bench trial, the court entered judgment in favor of Sea Supply. The court found that the credible evidence supported the conclusion that the paint on the engine room floor did not create an unseaworthy condition. Dean’s fall and resulting injuries were caused by the Dean’s failure to use proper slip resistant shoes and failure to clean surfaces and shoes that he knew had oil on them. Having considered the testimony of the fact witnesses and expert witnesses presented by both sides, the court determined that Dean violated the company's safety rule regarding proper footwear in the engine room and was therefore negligent. Additionally, the court found that he was negligent in failing to properly prepare for his task and to clean his shoes after exiting the bilge and to clean the walking surfaces before beginning the task, and that these negligent acts were the sole cause of Dean’s accident and injuries. The court found that Dean’s actions in failing to properly prepare for the conditions he knew he was likely to encounter while fixing the starter were not reasonable under the circumstances. Accordingly, as a matter of law, the court held that Dean was 100% as fault for his accident and injuries. The evidence demonstrated that Sea Supply had paid maintenance and cure from the date of Dean’s injury until the date of trial. The credible evidence supported the conclusion that Dean sustained injuries to his shoulder, neck, and back and that he was unfit for duty as a result of this injury from that date until the time he is deemed to have achieved MMI. The weight of credible evidence indicated that Dean had not yet reached MMI. Sea Supply had paid all of Dean’s past medical bills which were submitted at the time of trial. However, Dean submitted additional medical expenses on the day of trial. Therefore, Sea Supply was given 60 days to review the charges and to reimburse Dean for same. Judgment was entered in favor of Sea Supply, dismissing Dean’s claims for damages based on the Jones Act and general maritime law with prejudice [see August 2018 Longshore Update]. Dean immediately moved for reconsideration, arguing that fault should be apportioned between the parties because t Sea Supply was partially at fault and Dean should recover based on Sea Supply’s contributory negligence. Sea Supply responded in opposition arguing that Dean was simply trying to relitigate this case, and had failed to show any newly discovered evidence. The court agreed, noting that Dean’s arguments were made previously at trial. The court did not reason that Dean’s negligence "cancelled out" Sea Supply’s negligence. The court did not find that Sea Supply was negligent at all. Rather, the court found that Dean’s negligent actions were the sole cause of his accident and injuries. Dean’s motion for reconsideration was denied. (USDC EDLA, August 17, 2018) 2018 U.S. Dist. LEXIS 140376
COURT DISMISSES NON-PECUNIARY DAMAGES CLAIMS
IN RE: AMERICAN RIVER TRANSPORTATION, CO., LLC
An inland tug owned and operated by American River Transport Co., LLC (ARTCO), caught fire when it was doing fleet work on the Mississippi River. The fire broke out in the deck locker on the vessel's main deck. Two crew members, Spencer Graves and Ronald D. Neal, who were in their crew quarters on the main deck, suffered smoke inhalation and loss of consciousness. Graves, who was a Jones Act seaman aboard the vessel, died as a result of the accident. Neal, who was also a Jones Act seaman aboard the vessel, allegedly sustained injuries as a result of the accident. ARTCO filed a petition for limitation of liability seeking exoneration from or limitation of liability for the accident. Philip and Rebecca Whaley Graves, Spencer Graves' parents, filed a claim as representatives of Graves' estate, seeking non-pecuniary damages including punitive damages, declaratory relief regarding punitive damages and loss of society damages, and attorneys' fees. Neal also filed a claim and seeks non-pecuniary damages, including punitive damages, declaratory relief regarding punitive damages, and attorneys' fees. ARTCO filed the instant motions to dismiss arguing that non-pecuniary damages are not recoverable by a seaman, or his survivors, against the seaman's employer under either the Jones Act or the general maritime law. The Graves and Neal argued that ARTCO's motion was premature and the court should not determine whether non-pecuniary damages will be recoverable from ARTCO until after the court determines whether ARTCO is entitled to exoneration from or limitation of liability. The court noted that ARTCO was the employer of the both Graves and Neal, who were Jones Act seamen and held that binding precedent of the Supreme Court and the Fifth Circuit holds that neither a Jones Act seaman nor his survivors can recover non-pecuniary damages against the Jones Act employer. Thus, as a matter of law, neither the Graves nor Neal could recover non-pecuniary damages from ARTCO for negligence or unseaworthiness, regardless of ARTCO's success under the Limitation of Liability Act. Therefore, ARTCO's motion to dismiss was granted, and the Graves' and Neal's non-pecuniary damages claims against ARTCO were dismissed. (USDC EDLA, August 22, 2018) 2018 U.S. Dist. LEXIS 142607
THE MEAT OF SEAMAN’S COMPLAINT IS THROWN OUT ON SUMMARY JUDGMENT
HENDERSON V. T&M BOAT RENTALS, LLC, ET AL.
Lawrence Henderson, who was employed by T&M Boat Rentals as a deckhand, alleged that, while working on a vessel owned by Mr. Spotty, he was injured when he attempted to lift a cable which was hanging over the side of a barge in the water. In his complaint, Henderson contended his injuries were the direct result of defendants' negligence and the unseaworthiness of the vessel. Following discovery, defendants timely moved for summary judgment arguing there was no evidence on the record, other than Henderson’s own testimony, to support his allegation that the accident ever took place. Alternatively, defendants argued that, even if Henderson did sustain the alleged injuries, his accident was not the result of defendants' negligence or the unseaworthiness of the vessel. The court first noted that Henderson’s own sworn statement that an accident he suffered while working on the vessel caused his injuries was sufficient to defeat defendants' summary judgment motion. Defendants offered sworn statements from Henderson’s co-workers, each of whom denied the accident occurred. One statement pointed out that if someone were injured on the vessel, protocol dictated that he be notified of the injury, which Henderson never did. Rather, Henderson continued to work for a number of other days after the alleged incident with no indication he had been injured. Having offered significant evidence to support their argument that the incident Henderson alleged never actually took place, the court found defendants have borne their initial summary judgment burden. Thus, to defeat defendants' summary judgment motion, Henderson needed to direct the court's attention to something in the pleadings or other evidence in the record setting forth specific facts sufficient to establish that a genuine issue of material fact does indeed remain for trial. Henderson pointed to his own deposition testimony, wherein he explained he was injured when he attempted to pull a cable from the water. He testified that, because the cable was partly in the water, he had to stoop down with a spike pole and pull a line out the water, and when he got it half up, because there's no way you can bring it all the way up, he had to get down, grab the eye of the cable, and pull it up. As he did so he felt back pain. The court concluded that the evidence defendants offered to contradict Henderson’s assertions was not so overwhelming that Henderson’s sworn testimony failed to create a genuine issue of fact. Defendants offered only circumstantial evidence that, at best, showed there were no witnesses to Henderson’s accident, an accident he contended he reported but which was ignored. Because the court may not make credibility determinations at the summary judgment stage and defendants' evidence was not so overwhelming as to warrant summary judgment, the court held that Henderson had created a genuine issue of material fact with respect to whether his injury occurred as he has testified. Therefore, Henderson’s maintenance and cure claim could not be dismissed. Nevertheless, based on the record currently before the court, there was no evidence of defendants' negligence and Henderson failed to point to a violation of some regulation, evidence that any negligence, however slight, played a part in producing the his injury. Nor was there any evidence there had been other injuries resulting from crew members attempting to lift a cable out of the water, or expert testimony that the submerged cable presented an unsafe condition. Because Henderson wholly failed to offer any evidence to show that the partially submerged cable constituted an unsafe condition, the court granted summary judgment as to his negligence claim. Like his negligence claim, Henderson offered nothing beyond his conclusory assertion that the cable being partially in the water created an unseaworthy condition. As a result, the court concluded Henderson had failed to create a genuine issue of fact with respect to whether the partially submerged wire rendered the vessel unseaworthy. Defendants motion for summary judgment was granted in part and denied in part. With respect to Henderson's Jones Act negligence and unseaworthiness claims, the motion for summary judgment was granted. With respect to Henderson’s claims for maintenance and cure benefits, the motion was denied. (USDC EDLA, August 9, 2018) 2018 U.S. Dist. LEXIS 135207
COURT ALLOWS ALLEGED EXPOSURE CLAIM TO PROCEED IN PART
GOETZ V. GRAND RIVER NAVIGATION COMPANY, INC.
Harold Goetz worked for Grand River Navigation Company as an assistant engineer on Grand River's vessel, a tug/barge combination, during the 2011-2014 shipping seasons. He worked for five or six months each year. Goetz primarily worked in the vessel's engine room, where he was allegedly exposed to harmful oil fumes and vapors. Goetz filed suit, raising claims under the Jones Act, alleging that as a result of Grand River's negligence, he suffered physical and mental injury, been rendered disabled, and lost earning capacity and the ability to work. He sought lost wages and medical expenses for these alleged injuries. Grand River filed a moved for summary judgment, arguing that dismissal was appropriate because Goetz has failed to provide sufficient evidence of causation. The court observed that Goetz had submitted reports and declarations from a number of scientific and medical professionals showing that neurotoxic agents, including n-hexane, were present in the fuel used on the vessel, and capable of causing his medical ailments. The working conditions on Grand River's vessel were also affected by the cleaning solutions used by crew members. Given the relaxed burden of proof that applies in Jones Act cases, the court found that Goetz had presented evidence from which a jury could infer that he was exposed to harmful levels while working on the vessel. Reviewing the expert reports and the testimony from the crew members, a reasonable jury could conclude that n-hexane is capable of producing many of the symptoms experienced by Goetz., given the neurological and carcinogenic hydrocarbons known to be present in degreaser chemical solvents as well as the fuels oils as No. 2 and No. 6 fuel oil, it is to a reasonable degree of scientific certainty that a human biological response to exposures of such chemicals would be to exhibit a nerve system response such as peripheral neuropathy reported by Goetz. The court granted Grand River’s motion in part and denied it in part. The motion was granted to the extent that Goetz alleged that substances other than n-hexane and carbon caused his peripheral neuropathy. It was denied to the extent that the court held that Goetz could proceed on his claims as to how n-hexane and carbon monoxide caused his peripheral neuropathy. (USDC EDMI, August 23, 2018) 2018 U.S. Dist. LEXIS 143353
DUELING SUMMARY JUDGMENT MOTIONS DENIED DUE TO QUESTIONS OF FACT
SIAS V. QUALITY ENERGY SERVICES, INC.
Bryant Sias, was employed by Quality Energy Services, Inc. as a deckhand on Quality's lift boat. He allegedly fell down the ladder leading to the vessel's engine room, resulting in his alleged injuries. After his accident, Sias filed a seaman’s complaint asserting negligence, unseaworthiness, maintenance, and cure claims against Quality, and he asserted a claim for sanctions based on Quality's alleged failure to timely and properly pay maintenance and cure. In response, Quality moved for summary judgment, arguing that it was not liable to the Sias for negligence or unseaworthiness. In opposing Quality's motion, Sias asserted his own lack of negligence and his entitlement to summary judgment in his favor. The court found the genuine issues of material fact precluded summary judgment for either party. It was undisputed that the stair treads were patterned or diamond plated metal and painted yellow, but there was no non-skid tape on the steps at the time of the accident. The vessel's captain placed non-skid tape on the steps the day after the accident occurred so the tape was presumably either onboard or available to the vessel before the accident. Numerous other persons had previously slipped on or fallen down the same ladder, and complaints about the ladder had been made to Quality before the Sias’s accident occurred. The court declined to consider the report of Quality’s expert witness, regarding whether the ladder complied with industry standards or regulations, at the summary judgment stage. The court also declined to consider the opinion of the Sias’s expert witness. The court observed from the evidence presented that the ladder could, and had been, traversed without incident. The question presented, however, was whether the ladder could safely be traversed while holding a five gallon bucket of oil, which Sias was doing at the time of his accident. The conflicting testimony regarding the condition of the steps created genuine issues of material fact that precluded summary judgment. Sias claimed that the steepness of the ladder, the narrowness of the treads, the lack of non-skid tape on the treads, the slipperiness of the steps, and the lack of a handrail going from the top to the bottom of the ladder made the vessel unseaworthy while at the same time it is at least possible, based on the evidence presented, to safely traverse the ladder creating genuine issues of material fact as to the seaworthiness of the vessel. Quality's argument that the vessel was not unseaworthy because of Sias’s sole negligence lacked merit. Both motions For summary judgment were denied. (USDC WDLA, August 23,2018) 2018 U.S. Dist. LEXIS 144212
COURT FINDS NO LIABILITY ON THE PART OF VESSEL OR VESSEL OWNER
STANLEY, ET AL. V. STARFLEET MARINE TRANSPORTATION, INC. ET AL.
Offshore platform operators, Roy Stanley and Mitchell Mouton, were allegedly injured as passengers aboard a vessel, owned and operated by Starfleet Marine Transportation, Inc., while it was transporting them to shore. Plaintiffs sued the vessel and Starfleet Marine, alleging the that their negligence caused their injuries. Plaintiffs argued that defendants breached their duty of care because the vessel captain operated the vessel at an unsafe speed, because he failed to adequately warn the plaintiffs to sit in their seats properly, and because he failed to take a direct route to the coast in order to avoid the storm. Following a bench trial, the court found that plaintiffs had failed to prove any of their theories. The court found that the vessel did reduce the speed down to 10-12 knots prior to the plaintiffs becoming injured. If it had reduced the speed much further the captain would have lost control of the vessel in the swells. Moreover, even if the court had found that the vessel had maintained a speed of 17 knots, plaintiffs failed to put forth any evidence of what effect that speed would have had on the vessel when it encountered waves with steep vertical backsides. A higher speed may have worsened the jolt as the vessel impacted the trough or it may not have had any effect at all. Plaintiffs failed to establish that the vessel captain breached his duty with regard to the speed of the vessel, or even that but for the adopted speed, plaintiffs would not have been injured. Thus, the court found that plaintiffs had failed to demonstrate that defendants breached any duty of reasonable care as a result of the vessel captain’s actions or inactions. As such, it was unnecessary for the court to address defendants' claim that the waves encountered were "rogue waves" that were unforeseeable acts of God. The court found that the defendant were not liable and rendered judgment in their favor. (USDC EDLA, August 24, 2018) 2018 U.S. Dist. LEXIS 144290
COURT VACATES ARBITRATION AWARD
CARLSON V. NORWEGIAN CRUISE LINE HOLDINGS, LTD.
This case involved a motion by Norwegian Cruise Line Holdings, Ltd., to vacate an arbitration award in favor of Felton Carlson. While working aboard Norwegian’s cruise ship, Carlson's hand was caught in a laundry room press and later developed carpal tunnel syndrome and eventually underwent carpal tunnel release surgery. Carlson commenced a civil action against Norwegian, asserting claims for Jones Act negligence, unseaworthiness, failure to provide maintenance and cure, and failure to provide prompt, proper, and adequate medical treatment. Carlson then moved to stay proceedings pending arbitration. The court referred this matter to arbitration and ordered the matter stayed pending the completion of arbitration. The arbitrator denied relief to Carlson on his unseaworthiness, maintenance and cure, and contract claims, but granted Carlson relief on his Jones Act negligence and failure to provide prompt, proper, and adequate medical treatment claims. After reducing the award 50% for comparative negligence, the arbitrator awarded Carlson $75,000 for his Jones Act negligence claim and $100,000 for Norwegian's failure to provide prompt, proper, and adequate medical treatment claims. Carlson filed a motion to enforce the original arbitration award with the court. Norwegian moved to vacate the original arbitration award. The court held a hearing on Norwegian's motion. After taking evidence and hearing argument from both parties, the court held that the arbitrator had committed misconduct in refusing to hear evidence pertinent and material to the Norwegian, and otherwise prevented Norwegian from presenting its case. The court vacated the original arbitration award and remanded the matter to arbitration. The arbitrator then issued her second arbitration award. The second arbitration award was substantially the same as the original arbitration award and awarded Carlson the same relief as the original arbitration award, denying relief to Carlson on his unseaworthiness, maintenance and cure, and contract claims and granting Carlson relief on his Jones Act negligence and failure to provide prompt, proper, and adequate medical treatment claims. Norwegian moved to vacate the second arbitration award. Norwegian argued that, after rendering the original award, the arbitrator became functus officio and had no authority over the matter. As a general rule, once an arbitration panel renders a decision regarding the issues submitted, it becomes functus officio and lacks any power to reexamine that decision. Thus, Norwegian argued, the arbitrator exceeded her powers in rendering the second award. Because the court's remand of the arbitrator’s original arbitration award was not under one of the three circumstances that would have permitted her to revisit and revise her original award, the arbitrator was without power to enter the second arbitration award. As such, the court held that the arbitrator exceeded her powers. Accordingly, the court vacated the arbitration award. (USDC DVI, August 10, 2018) 2018 U.S. Dist. LEXIS 135047
MOTION TO REMAND BITES THE DUST
CRISANTO V. CALADAN OCEANIC, LLC
Brayan R. Nunez Crisanto was allegedly injured while working as an oilman for Caladan Oceanic. Crisanto sued Caladan in Texas state court, asserting common-law negligence under the general maritime law, seeking more than $75,000 in damages. Caladan removed the case pursuant to 28 U.S.C. §1441 based on admiralty jurisdiction, 28 U.S.C. §1333, and diversity jurisdiction, 28 U.S.C. §1332. Crisanto immediately moved to remand his case back to state court. Crisanto contended that Caladan must demonstrate an independent jurisdictional source to remove this case and it had not because, although the parties are completely diverse, the forum-defendant rule barred Crisanto, a Texas resident, from removing to a federal court in Texas. Even if the court were to require an independent source of jurisdiction to remove an admiralty at law case, Caladan argued the court had diversity jurisdiction because it is a Texas LLC and Crisanto is from Washington and seeks more than $75,000. The court began its analysis by observing that until 2011, it was well settled that defendants could not remove under §1441 based on §1333 admiralty jurisdiction without demonstrating diversity jurisdiction in part because at-law admiralty claims do not arise under federal law. In 2011, Congress amended § 1441(b), and a majority of district courts both in and outside of the Fifth Circuit have found that the amended version of § 1441(b) does not provide any indication that Congress intended to make substantive changes to removal of admiralty matters, "meaning at-law admiralty claims are still not removable without an independent basis for jurisdiction. However, the minority approach, led by Ryan v. Hercules Offshore, Inc., finds the amended version of §1441(b) no longer requires removing parties to provide an independent jurisdictional basis. The Fifth Circuit has not yet resolved this dispute. The court noted that it need not choose sides because Caladan had demonstrated that the court had an independent source of jurisdiction: diversity jurisdiction. Crisanto did not dispute that the jurisdictional requirements for diversity jurisdiction were met. Instead, Crisanto argued that the forum-defendant rule barred Caladan from removing this case because Caladan is a Texas resident. Under the pre-2011 version of §1442(b), Crisanto might have had a point. But under the amended version of §1441(b)(2), the forum-defendant rule only applies to defendants removing "solely on the basis of" diversity jurisdiction. And Caladan did not remove solely on the basis of diversity jurisdiction. This was true even though Caladan's independent source of jurisdiction is diversity jurisdiction because the forum-defendant rule is procedural, not jurisdictional. Whether the removing defendant is a resident of the forum affects whether that defendant can remove, not whether there is diversity jurisdiction. The court denied Crisanto's motion to remand. (USDC NDTX, August 1, 2018) 2018 U.S. Dist. LEXIS 128778
FERRY BOAT OPERATOR’S MOTION TO DISMISS IS DENIED
LARONGE V. RUCKUSSPORTFISH, LLC, ET AL.
Thomas Laronge sought damages in three counts against Gary Eng individually under theories of ordinary negligence, negligence under the Jones Act, and failure to pay maintenance and cure. Eng was the non-licensed operator of a ferry that, while transporting Laronge from the resort to Tortola, ran aground on a reef and injured anew the already injured Laronge. Pleadings were also in the alternative alleging Eng as the employer instead of or in addition to RuckusSportfish LLC. Eng moved to dismiss the complaint, contending that only a shipowner, as opposed to an operator, owes passengers a duty to exercise reasonable care and that the shipowner must have had notice of the risk-creating condition. Because he had no notice of the danger, Eng argues that he did not have a concomitant duty to warn. The court found Laronge’s authority more persuasive, that both a vessel owner and an operator may owe a duty of reasonable care to passengers. Consequently, Laronge had properly pled a claim for ordinary negligence against Eng. In the court's view, Laronge was also not precluded from bringing Jones Act negligence and failure to pay maintenance and cure against both Eng and RuckusSportfish, LLC. FRCP 8(d)(3) explicitly provided that a party may state as many separate claims or defenses as it has, regardless of consistency. Moreover, Laronge had cited authority for the proposition that a seaman may have more than one Jones Act employer. Gary Eng's motion to dismiss was denied. (USDC MDFL, August 7, 2018) 2018 U.S. Dist. LEXIS 132200
COURT FINDS THAT FOUR HOURS SPENT ON A MOTION WAS REASONABLE
FAIRLEY V. ART CATERING, INC., ET AL.
Ronnie Lee Fairley, was employed by ART Catering, Inc. as a laundry worker aboard a drill ship, owned by Vantage Deepwater Drilling, Inc. During that time, Fairly allegedly became gravely ill and ART placed him on “no work" status. Failey’s medical condition allegedly worsened into an acute infection in his leg while he was forced to remain aboard the drill ship for the duration of his twenty-eight day schedule. When he was finally transported ashore, Fairley was rushed to the local hospital. The infection allegedly had led to gangrene-related sepsis and the amputation of his right foot. Fairley later died, allegedly because his septic condition caused acute respiratory failure. Fairley’s widow filed suit, asserting claims under the Jones Act and general maritime law, alleging that Vantage failed to provide appropriate medical care. The widow subsequently filed a motion to compel production of ART’s excess liability insurance policy, which was granted by the court. The widow then requested and that court ordered that ART pay the reasonable expenses incurred in bringing the motion, including attorney's fees. Id. The widow was ordered to provide contemporaneous billing records along with proof of the reasonable billing rate. The widow subsequently filed her motion to fix attorney's fees. ART opposed the motion contending that the underlying motion to compel was filed without conducting a Rule 37 discovery conference and after the motion was filed the excess policy was immediately produced. Additionally, the widow’s counsel had failed to provide adequate proof of his reasonable hourly rate and the amount sought was excessive and unreasonable. The widow’s counsel stated that he had handled several notable maritime cases and had served on the Board of Governors for the Louisiana Association for Justice. He did not state what his regular hourly rate was. Instead, he directed the court to surveys by the National Law Journal of rates charged by the largest law firms in this area, and which indicate an hourly rate range for partners of $240-425 (Adams and Reese), $225-620 (Jones Walker), and $170-450 (Phelps Dunbar), presumably, seeking a partner's rate from one of the ranges provided by the surveys. ART contended that the billing rate for its counsel is $220.00 per hour. The court found that the widow’s counsel's affidavit was insufficient. However, considering that the rate charged by opposing counsel in this case is $220.00 per hour, the court found that this rate was reasonable. The widow’s counsel also contended an award of reasonable attorney's fees was due, however, he did not provide a contemporaneous billing sheet because he normally worked on a contingent fee basis. ART contended that the four hours spent on preparing the motion to compel was excessive because this matter only involved a single request for a policy that was produced upon the filing of the motion to compel. ART further contended that had the widow’s counsel conducted a discovery conference then the need for the motion would have been eliminated. The Court found that four hours was reasonable for locating and summarizing the email communications, finding the appropriate language from Blue Cross of Louisiana's telephone notes, and drafting, reviewing, and filing the motion. Therefore, the court found that an award of $880.00 was reasonable. The widow’s motion was granted and the court awarded reasonable attorney's fees in the amount of $880.00. (USDC EDLA, August 6, 2018) 2018 U.S. Dist. LEXIS 131542
EMPLOYER’S PLEA TO EXCLUDE EXPERT TESTIMONY FALL FLAT
THOMAS V. W&T OFFSHORE, INC.
Torrey Thomas alleged that he tripped and fell after his boot became caught in a drainage hole on a tension leg platform owned by W&T Offshore, Inc., that was attached to the subsoil and seabed of the Outer Continental Shelf. Thomas was employed as a galley hand on the platform at the time of his alleged accident. As a result of the fall, Thomas alleged that he suffered injuries to his left knee and lumbar spine. After Thomas filed suit, W&T Offshore moved to exclude the prospective testimony of Thomas’s designated expert on maritime safety, David Cole, arguing that Cole's testimony should be excluded because he is not qualified to testify about safety regulations or standards for tension leg platforms. Additionally, W&T Offshore argued that Cole's testimony should be excluded as irrelevant because he ignored relevant deposition testimony. Finally, W&T Offshore argued that Cole's testimony would not assist the trier of fact in resolving a factual dispute, as Cole relied on written procedures, deposition testimony, injury/accident reports, and pleadings in forming his opinion and offered legal opinions. Thomas opposed the motion. Considering that Coast Guard regulations primarily apply to work performed on an offshore platform and Cole had extensive experience applying those regulations to the inspections of various vessels and platforms, the court found that he was qualified in the relevant field. In his expert report, Cole opined that the drain hole created a dangerous condition which would not have been known or recognizable to a typical galley hand, but should have been known to the vessel's owners and experienced crew members. The court found that this statement did not indicate that Cole ignored Thomas’s statements in his deposition, as Cole is referring to the typical galley hand, rather than Thomas specifically. Moreover, Thomas’s statement that he was aware of the existence of the drain hole does not necessarily mean that he was aware that the drain hole was a hazardous condition. The court also found that the proposed expert's testimony could aid the factfinder in resolving the dispute. Moreover, Cole did not provide an opinion on the legal cause of Thomas’s accident or on the ultimate issue of whether W&T Offshore acted negligently. As a result, the court found that Cole's opinions were not impermissible conclusions of law. Accordingly, W&T Offshore’s motion in limine was denied. (USDC EDLA, August 27, 2018) 2018 U.S. Dist. LEXIS 145842
MOTION TO REMAND BITES THE DUST
HARRIS V. ABC INSURANCE COMPANY, ET AL.
Bruce Harris, Jr. allegedly slipped and fell on some ice while cleaning the deck of a barge owned by American Commercial Barge Line LLC. Harris contended that his injuries were caused by the negligence of ACBL and their supervisor on duty at the time of the accident. Harris filed suit in state court, naming ACBL, the supervisor, and ACBL's alleged fictitious insurer as defendants. ACBL removed the action to federal court on the basis of diversity jurisdiction. Although complete diversity appeared to be lacking, ACBL asserted that Harris improperly joined the supervisor as a defendant in order to defeat diversity jurisdiction. Harris, however, maintained that the supervisor was properly joined in this case and therefore the court lacked jurisdiction. Accordingly, Harris moved to remand, which ACBL opposed. The court initially noted that, in determining whether a civil action is removable on the basis of the jurisdiction under §1332(a), the citizenship of defendants sued under fictitious names shall be disregarded. To show improper joinder, ACBL argued that no reasonable basis existed for Harris to recover against its supervisor under Louisiana law or general maritime law. The court, upon a summary judgment inquiry into the record, concluded that ACBL was correct. In order to meet its burden of establishing improper joinder, ACBL cited to the supervisor’s declaration, in which he attested that he has never been employed by ACBL in any capacity and that he was not the supervisor on duty at the time of Harris’s accident. Accordingly, to the extent that Harris had alleged that he was an ACBL supervisor and, thus, owed him a duty of care under either general maritime law or Louisiana law, there was simply no evidence in the record which supported Harris’s theory. Therefore, the court finds that ACBL had carried its burden of demonstrating that there was no reasonable basis for predicting that Harris might be able to recover against the individual. The motion to remand was therefore denied and the claims against the alleged supervisor were dismissed. (USDC EDLA, August 24, 2018) 2018 U.S. Dist. LEXIS 143993
Quotes of the Month . . .“Be faithful in small things because it is in them that your strength lies.” --Mother Teresa
“An intelligent man is sometimes forced to be drunk to spend time with his fools.” --Ernest Hemingway
“Intelligence without ambition is a bird without wings.” --Salvador Dali
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