December 2018
Notes From Your Updater: On November 12, 2018, a petition for certiorari was filed with the U.S. Supreme Court in the case of Leroux v. NCL Bahamas, Ltd., Docket No. 18-632 [see September 2018 Longshore Update].The question presented is, “Under the General Maritime Law of comparative negligence, should a finding of "open and obvious" act as a complete bar to recovery or merely serve as a factor to be weighed in apportioning fault? At present, there is a split in the federal circuits on this important issue, and it is imperative for this Honorable Court to resolve the conflict to maintain uniformity in federal maritime law.”
GEORGIA SUPREME COURT RECONSIDERS HINES V. GEORGIA PORTS AUTHORITY
GEORGIA PORTS AUTHORITY V. LAWYER
Bruce Lawyer was allegedly injured while working as a longshoreman aboard a vessel docked at the Port of Savannah, and he filed a lawsuit in state court against the Ports Authority, seeking to recover damages for his injuries. In his pleadings, Lawyer alleged that the negligence of a crane operator employed by the Ports Authority had caused his injuries, and he asserted a claim against the Ports Authority for negligence under federal maritime law. In response to the lawsuit, the Ports Authority invoked the doctrine of sovereign immunity. The Ports Authority conceded that the Tort Claims Act waives sovereign immunity for claims to recover damages for the tort of a state employee up to $1 million, but it urged that sovereign immunity bars any claim to recover damages in excess of that amount. To that end, the Ports Authority filed a motion to dismiss the lawsuit to the extent that Lawyer sought to recover damages in excess of $1 million. The trial court deferred ruling on the motion until after trial. The case was tried to a jury, which returned a verdict in favor of Lawyer and against the Ports Authority, awarding $4.5 million in damages. Following the verdict, the trial court took up the motion to dismiss, receiving evidence and additional briefing on the question of sovereign immunity. The trial court noted that the Ports Authority in this case presented evidence that went well beyond the undeveloped factual record in Hines, and based on that evidence, the trial court made findings of fact that, it acknowledged, point to a conclusion at odds with Hines. Even so, the trial court reasoned that any reconsideration of Hineswas a matter for the appellate courts, and as a trial court, it had no choice but to follow Hines. Accordingly, the trial court denied the motion to dismiss and entered a judgment against the Ports Authority for damages in the amount of $4.5 million. The court of appeals affirmed, relying exclusively upon Hines. The Georgia Supreme Court granted a petition for a writ of certiorari in this case to reconsider Hines v. Georgia Ports Authority [see November 2004 Longshore Update], and more specifically, its holding that the Georgia Ports Authority was not an “arm of the state” and has, therefore, no sovereign immunity from a lawsuit in a state court to recover damages under federal maritime law for the tort of a Ports Authority employee. The court pointed out that there were several reasons to doubt the soundness of Hines. Most significantly, the decision in Hines was based on an undeveloped factual record, and after reexamining Hines in the light of the more fully developed record in this case, the court found that Hines failed to accurately assess the relationship between the Ports Authority and the State. The supreme court concluded that the Ports Authority was an "arm of the state" because the State had significant control over the Ports Authority, both in a formal sense and in practice, the State exercises an "exacting level of control" over the Ports Authority, and the record showed that the State provided extensive financial support to the Ports Authority. Because the Ports Authority was an "arm of the state" entitled to immunity under the Eleventh Amendment from suit in federal court, the sovereign immunity from suit in state court that was reserved to the Ports Authority under the Georgia Constitution was not susceptible of abrogation by federal maritime law and barred a lawsuit in state court to recover damages for the tort of its employee, except to the extent the State consented to the suit. Therefore, the court overruled Hines, and we concluded that the Ports Authority is an “arm of the state” and has sovereign immunity from lawsuits to recover damages under federal maritime law for the torts of its employees, except to the extent the State consented to the suit. By the terms of the Tort Claims Act, the State has consented to such a suit, but only to the extent that the damages do not exceed $1 million. The motion to dismiss Lawyer's claim for damages in excess of $1 million should be granted, and the judgment of the court of appeals was reversed. (Sup. Ct. Of Ga., November 1, 2018) 2018 Ga. LEXIS 702
Updater Note - The likely effect of this decision is that Georgia Ports Authority will go back to their prior negotiation style of knowing the $1 million cap applies and rarely offering more than $500,000 or $550,000. For the past year offers on substantial claims have crept up into the $650,000 range, which has provided a larger pot for lien recovery in the underlying Longshore claim. My thanks to Brian McElreath, of Lueder, Larkin & Hunter, LLC, Mt. Pleasant, SC, for sharing this opinion with me.
ROBINOWITZ TRIES TO INFLATE HIS FEE YET AGAIN
HARDMAN, ET AL. V. MARINE TERMINALS CORPORATION, ET AL.
Mark Hardman petitioned for review of the decision of the Benefits Review Board, which affirmed the award of fees made by the District Director to Hardman's attorney, Charles Robinowitz, for his services and those of his paralegal, asserting that the Director erred in various ways in deciding the amount of that fee and that the BRB erred when it affirmed the award. Hardman first asserted that it was error to use the national Consumer Price Index to adjust the baseline hourly rates for 2012, which were selected by the Director, to increase those rates to the current market rate for later years. The appellate court disagreed, finding that it was not an abuse their discretion to choose the more widely used and relied upon national CPI. Hardman next asserted that it was error to refuse to increase the rates determined for 2013 and 2014 up to market rates for 2016, even though the rates for 2007 to 2011 were so increased. Again, the appellate court disagreed, noting its prior holding that the increase is not required for services rendered when the BRB decides that the delay was not long enough to merit augmentation. Hardman finally argued that the Director erred when he set the base rate for Robinowitz. Again, the appellate court disagreed, noting the Director and the BRB satisfactorily explained why the rate group selected properly reflected the correct rate for Robinowitz's practice area. That was not an abuse of discretion. The petition for review was denied. (9thCir, November 19, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 32683
COURT ALLOWS §905(B) CLAIM TO PROCEED ON ACTIVE CONTROL DUTY ONLY
JOHNSON V. CARGILL, INC., ET AL.
Albert Johnson alleged he was injured when he slipped on spilled grain and fell on the deck of a foreign flagged, ocean-going, bulk cargo vessel owned by Diamond Star. The vessel arrived at Cargill, Inc. and docked there for Cargill to load a cargo of grain into the vessel's holds. At some point, before Cargill completed the loading, grain spilled on the deck of the vessel because of a "plugging event" that occurred on Cargill's loading device. Cargill subcontracted with Johnson's employer, Dockside Linemen, Inc., to rake the cargo, once it was in the vessel's holds, to even out the piles of grain. The spilled grain was plainly visible on the deck of the vessel. Johnson allegedly he slipped and fell on the spilled grain, suffering alleged injuries. Diamond Star moved for summary judgment under FRCP 56 on the basis that there were no material facts in dispute, it did not breach any legal duty owed to Johnson, and it was entitled to judgment as a matter of law. Johnson brought a §905(b) claim against Diamond Star under the LHWCA, which permits a longshoreman to bring an action against a vessel owner when his injury is the result of the negligence of the vessel. It was undisputed that the grain on which Johnson allegedly slipped and fell was spilled on the deck of the vessel at some point two days after the vessel was turned over to Cargill for loading operations. It was also undisputed that the condition at issue, the grain on the deck of the vessel was open and obvious. The court finds there are no material facts in dispute and Diamond Star is entitled to judgment as a matter of law that it did not breach its turnover duty. The court also found that material facts were in dispute as to whether Diamond Star maintained active control of the walkway where Johnson slipped and fell. While it was undisputed that Cargill was in control of the loading operation, the parties dispute who was responsible for cleaning the walkway and whether Diamond Star maintained active control of the walkway or completely turned the walkway over to Cargill. Therefore, Diamond Star was not entitled to judgment as a matter of law that it did not breach the active control duty. Based on the undisputed facts, the court found as a matter of law that the spillage did not create an unreasonably dangerous condition. Because an unreasonably dangerous condition did not exist, Diamond Star could not have actual knowledge of an unreasonably dangerous condition, and it had no duty to intervene. Diamond Star was found entitled to judgment as a matter of law that it did not breach the duty to intervene. The motion for summary judgment filed by Diamond Star was granted to the extent that it did not breach the turnover duty or the duty to intervene. The motion was denied as to the claim of breach of the active control duty. (USDC EDLA, November 1, 2018) 2018 U.S. Dist. LEXIS 187122
ANOTHER REMOVAL ACTION BITES THE DUST
WHITTAKER V. VANE LINE BUNKERING, INC.
Frank Whittaker was an employee of Vane Line Bunkering, Inc. and Vane Brothers Company, where he worked as a crew member on a tank barge. Whittaker alleged that he was injured aboard the tank barge while on navigable waters due to the negligence, carelessness and recklessness of Vane. Whittaker also claimed that the tank barge and a Dann Ocean Towing, Inc. Tug were not safe and seaworthy vessels. Whittaker also filed an alternative §905(b) claim under the LHWCA for vessel negligence. Whittaker filed a complaint against defendants in state court. Defendants removed the case to federal court claiming diversity jurisdiction and original and exclusive jurisdiction, pursuant to 28 U.S.C. §§1331 and 1333 because the complaint alleged in rem claims against the vessels. Whittaker then requested leave to remove the vessels and his claim for vessel negligence under the LHWCA, claiming that he unintentionally named the vessels as defendants and did not mean to invoke in rem jurisdiction with regard to either vessel. While the court was not persuaded that the inclusion of the vessels and maritime lien claim was unintentional, the court found no improper delay or bad faith on Whittaker’s part. Additionally, the defendants did not oppose the motion. As such, Whittaker’s request to remove the vessels and vessel negligence claim from his action was granted. Whittaker then moved to remand the case back to state court. The court observed that the case now only contained a Jones Act violation, which was non-removable on its own. Therefore, the case would only be removable if one of the claims under the general maritime law, New York labor law, or common law conferred federal question jurisdiction. Unseaworthiness, maintenance and cure, and negligence are general admiralty claims that do not meet the requirements of Section 1441(c). As such, the Jones Act claim was no longer joined with claims that permitted removal under Section 1441(c). Out of respect for the limited jurisdiction of the federal courts and the rights of the states, the court remanded Whittaker’s case to state court. (USDC NDNY, November 27, 2018) 2018 U.S. Dist. LEXIS 200156
WIDOW HIT HARD BY LHWCA SECTION 33(G)(1) FORFEITURE PROVISION
HALE V. BAE SYSTEMS SAN FRANCISCO SHIP REPAIR, ET AL.
This case involved Section 33 of the Act, which recognizes that a person entitled to compensation may file a claim for benefits and simultaneously seek to recover damages from third parties ultimately at fault for the disability or death at issue. Section 33(g) is intended to ensure that an employer's rights are protected in a third-party settlement and to prevent the claimant from unilaterally bargaining away funds to which the employer or its carrier might be entitled under §933(b)-(f). Anthony Hale worked as a shipfitter and boilermaker for a number of shipyard employers. Allegedly, he was exposed to asbestos during the course of his employment. In 2007, he filed suit in state court against a number of third-party defendants. While his suit was still pending, Hale died of cardiac arrest secondary to lung cancer. The court appointed decedent's daughter, Brandie Pittman, as successor-in- interest to decedent in his third-party suit. The decedent's widow, Beverly Hale, who is the claimant in this proceeding and the mother of Ms. Pittman, filed a claim for death benefits under the LHWCA. Thereafter, Ms. Pittman and her sister, Ta-wanna Maxwell, filed a wrongful death suit against various third-party defendants. While the various claims were pending, Hale signed two disclaimers which purported to renounce her interest in the third-party actions and in decedent's estate in favor of her pursuit of death benefits under the Longshore Act. The releases defined the disclaimed property as all current and future net proceeds from lawsuits and claims filed by Anthony Hale and/or Anthony Hale's estate in connection with Anthony Hale's exposure to asbestos that would belong to Anthony Hale's estate and that were negotiated after Anthony Hale's death. The disclaimers were not filed in any court, nor provided to any other party, until the administrative law judge ordered their disclosure in the Longshore Act proceeding. Ms. Pittman thereafter executed settlements with third parties, for $2,000 with CBS and $7,000 with Pfizer. After a hearing on the issue, the ALJ held that Section 33(g) barred Hales's Longshore claim. Based on the language of the settlements, he found that Hale settled with CBS and Pfizer for amounts less than her entitlement under the Act without obtaining prior written approval from the longshore employers and carriers. The ALJ reasoned that Hale was the surviving spouse of decedent and was, at least, a presumptive heir under state law, as, under ordinary circumstances, she is an heir and a beneficiary and a successor. The CBS and Pfizer settlements stated that Ms. Pittman was authorized to, and does, waive the claims of Mr. Hale's heirs and terminated the wrongful death claims against those defendants. There is no evidence to suggest that CBS or Pfizer knew Hale was to be excluded from the third-party settlements. The settlements were not reasonably susceptible to claimant's interpretation that she was excluded from them and Hale did not disclose the disclaimers to the third parties. Therefore, the ALJ concluded that Hale was bound by the CBS and Pfizer agreements. The ALJ subsequently denied claimant's motion for reconsideration and her motion to re-open the record. Hale appealed the ALJ’s decisions, asserting the ALJ erred in relying on the California definition of the term "heirs" to conclude she was bound by the third-party settlements before independently determining whether she "entered into" those settlements under the language of the Act. She contends she did not "enter into" any third-party settlements under the Act, and she did not authorize anyone to do so for her. Claimant alternatively argues that if California law governs the interpretation of the settlements, they are ambiguous, and the administrative law judge erred by disregarding parole evidence, which, she claims, established that she was not a party to the settlements. The Director agreed with employers and urged the Board to affirm the ALJ’s decision. The Benefits Review Board agreed with the employers and the Director. In determining the meaning of "entered into" under Section 33, the beginning point of any analysis, as with any statutory construction, is the language of the statute. If that language is clear, the inquiry is finished. Under a plain reading of Section 33, to "enter" into something means to become a participant in, or as it relates to agreements, to become a party to the agreement. Consequently, the Board agreed with employers and the Director that the ALJ properly found that employers have shown the existence of a fully-executed third-party settlement with Pfizer which extinguished Hale’s claim against the third party for decedent's death and, thus, affects employers' rights under the Act. Because the aggregate of the Pfizer and CBS settlements was less than the amount to which Hale would be entitled under the Act, the Board declined to address the nature of the CBS agreement. Consequently, the BRB affirmed the ALJ’s finding that Hale’s unapproved third-party settlement with Pfizer invoked the Section 33(g)(1) forfeiture provision and barred Hale’s entitlement to death benefits under the Act.
Updater Note: Another unpublished BRB Decision, Verducci V. BAE Systems San Francisco Ship Repair, Inc., et al., BRB No. 17-0531, decided on October 30, 2018, had much the same outcome. The Hale decision is now before the 9th Circuit on petition for review. Thanks to Frank Hugg, Esq. Of Oakland, CA, for sharing these interesting cases with me.
And on the Admiralty front . . .
DC CIRCUIT SAILS INTO UNCHARTED WATERS ON COAST GUARD AUTHORITY
ANGELEX, LTD. V. UNITED STATES OF AMERICA
Nearly forty years ago, Congress authorized the Coast Guard to detain ships suspected of intentionally discharging oil and other contaminants into the sea. At the same time, Congress gave a ship "unreasonably detained or delayed" a cause of action to recover "any loss or damage suffered thereby." Sailing into uncharted waters, the court considered the contours of this cause of action, the court determined the Coast Guard acted reasonably in detaining a vessel for nearly six months pending a criminal trial after its owner and operator failed to meet the government's security bond demands. Angelex, Ltd., owned the bulk carrier that was the subject of the Coast Guard’s action. After rejecting all of Angelex's arguments that the Coast Guard harmed Angelex by behaving unreasonably, the district court entered judgment in favor of the government. Angelex timely appealed. In this case of first impression, the appellate court found that the U.S. Coast Guard had authority under 33 U.S.C. §1908(e) to detain the ship until legal proceedings were completed. Additionally, a grand jury had sufficient basis to indict both the ship owner and the company chartering the ship, and there were no material post-indictment developments. The appellate court also agreed with the district court that there was no merit to the ship owner's argument that the $ 2.5 million bond amount was unreasonable because given the six total counts against the owner and the company chartering the ship, it was not error for the district court to conclude that the maximum fine was at least $3 million. Without the financial documents that the owner supposedly sent the Coast Guard, the district court had no way of assessing whether the Coast Guard's $2.5 million demand reasonably took account of the information the documents contained. The district court’s judgment was affirmed. (D.C. Circuit, November 2, 2018) 2018 U.S. App. LEXIS 31068
IN LIMINE MOTIONS FLYING EVERYWHERE
ROBIN V. WEEKS MARINE, INC., ET AL.
Gary Robin moved in limine to exclude evidence that he regularly consulted doctors or sought medical care and/or underwent medical treatment before the subject incident his alleged allision with a Weeks Marine, Inc. dredge submerged line. He also moved to exclude a medical record from Southern Orthopedic Specialists referencing a supposed lumbar MRI in 2007, and a supposed recommendation that he undergo surgery on his lower back. Weeks Marine opposed the motion. At the pre-trial conference, Robin clarified he first motion in limine, indicating that he seeks only to exclude evidence of a 1999 fusion surgery performed on his cervical spine as a result of a workplace injury. Week Marine agreed that such evidence was irrelevant, and would not attempt to use this evidence. However, Weeks Marine argued they should be allowed to use the evidence to impeach Robin, if appropriate. The court deferred until trial its ruling on whether evidence of Robin’s 1999 injury may be used to impeach Robin until trial. At the pre-trial conference, Weeks Marine clarified that it does not oppose the motion in limine with respect to the 2007 MRI. Therefore, Robin’s motion to exclude evidence of the supposed lumbar MRI performed in 2007 was granted as unopposed. Robin moved to exclude a portion of a medical record from Southern Orthopedic Specialists, contending it should be excluded because it constituted hearsay within hearsay. Weeks Marine argued that the information was admissible because it was a statement made for the purpose of medical diagnosis or treatment. Hearsay is generally inadmissible, but FRCE 805 provides, hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. Rule 803(4) allows an exception to the hearsay rule for an out of court statement that is made for medical diagnosis or treatment and describes medical history and past or present symptoms or sensations. Such statements are admissible when the declarant reasonably considers them pertinent to the diagnosis or treatment sought. Robin’s motion in limine was denied with respect to the medical statement. (USDC EDLA, November 13, 2018) 2018 U.S. Dist. LEXIS 196632
OBJECTIONS YOUR HONOR!
LAWRENCE V. GREAT LAKES DREDGE & DOCK CO., LLC OF LOUISIANA
Great Lakes Dredge & Dock Company, LLC (GLDD) filed several objections1to Earl Lawrence's proposed trial exhibits. GLDD's first three objections are to the admissibility of records from the personnel files of GLDD employees Rodney Silas, Ruben Zamora, and Bo Hannegan, which were unauthenticated. According to the parties' proposed pretrial order, Silas, Zamora, and Hannegan were present when Lawrence was allegedly injured in connection with the incident underlying this lawsuit. Lawrence argued that the records were relevant to several issues in dispute, namely the lack of relevant safety training and lack of familiarity and adherence to safety procedures by personnel directly involved in the job at issue in the lawsuit. Lawrence also argues that authentication of the personnel records is unnecessary because GLDD produced them during discovery.8In fact, GLDD objects to several exhibits on improper authentication grounds, and Lawrence's response is the same for each one: without citing any authority, Lawrence states that there is no need to authenticate any document that GLDD produced in response to discovery requests. Authentication of a document is a condition precedent to its admission. The court cautioned Lawrence that all documents would have to be properly authenticated before they can be admitted into evidence; the mere fact that GLDD produced a document during discovery, alone, would generally not be sufficient. The court deferred determination of whether records from GLDD employees' personnel files were admissible until trial, at which time it would also address concerns related to Federal Rules of Evidence 401 and 403.9. GLDD also objected to documents summarizing the job description and physical demand analysis for a watch engineer on a cutter suction dredge. In addition to disputing whether the documents had been or will be properly authenticated at trial, GLDD argued that these documents are irrelevant because Lawrence was not working on a cutter suction dredge on the date of the alleged incident and, furthermore, the documents had nothing to do with the work being done by Lawrence at that time. In response, Lawrence notes that the vessel that he was working on at the time of the alleged incident is a booster barge used to facilitate dredging operations on a cutter suction dredge and that he was working as a watch engineer on the date he was injured. The court again chose to defer its ultimate ruling on the issue until trial. GLDD objected to the admissibility of MRI images and X-rays of Lawrence's spinal cord stimulator hardware. In addition to arguing that the images and X-rays had not been properly authenticated, according to GLDD, the imaging results were not produced during discovery. As a result, its independent medical examiner has not been able to review and analyze them, which GLDD claimed unduly prejudiced it at trial. Because the trial date had been postponed, the court found that GLDD had adequate time to provide the images and X-rays to its independent medical examiner for review. Assuming the same are authenticated at trial, this issue is resolved and the untimeliness objection was held to be moot. In the proposed pretrial order, Lawrence listed as an exhibit any and all documents needed for impeachment and rebuttal testimony. GLDD argued that this catch-all was not sufficiently descriptive. The court agreed with GLDD about the broad and vague nature of this item on the exhibits list. Moreover, Lawrence failed to offer any opposition to this objection. Accordingly, the objection was sustained. GLDD objected to the admissibility of its indemnity and liability company policy under FRE 411. Because Lawrence failed to file an opposition to this objection explaining why the policy should be admitted at trial, the objection was sustained. Finally, GLDD objected to the admissibility of any medical invoices or bills, arguing that they were irrelevant because maintenance and cure is not an issue in this case. Lawrence failed to file any opposition to this objection and, in fact, he suggested in his own objections that maintenance and cure was not in dispute. The Court therefore sustained the objection. (USDC EDLA, November 19, 2018) 2018 U.S. Dist. LEXIS 196710
FORUM SELECTION CLAUSE VALID AND ENFORCEABLE IN ADMIRALTY CASES
SKOGLUND V. PETROSAUDI OIL SERVICES (VENEZUELA) LTD., ET AL.
Ellis Skoglund filed a complaint against Petrosaudi Oil Services (Venezuela) Ltd., Petrosaudi Oil Services Ltd., Procurement Services (Delaware) Inc, & Saturn Drill ships Pte. Ltd. (collectively Petrosaudi) alleging negligence under the Jones Act, unseaworthiness, and failure to fulfill maintenance and cure obligations. Skoglund, who was employed as a deck foreman by PetroSaudi aboard a drillship, allegedly sustained a traumatic brain injury, amputation of toes, legal blindness and other injuries, when a hoist and trolley failed, dropping the equipment on him. Petrosaudi filed their answer denying Skoglund’s claims and arguing, among other things, that the court lacked personal jurisdiction over them as foreign defendants and that Skoglund’s claims were subject to the exclusive jurisdiction of the courts of England and Wales pursuant to a forum selection clause and choice-of-law clause included in the employment contract, and moved to dismiss. Defendants alternatively moved for dismissal under the doctrine of forum non conveniens, in light of the forum selection clause contained in Skoglund’s employment agreement. Skoglund filed a response asserting that the court had general jurisdiction over defendants pursuant to FRCP 4(k)(2) and that the forum-selection clause was unenforceable and void as against public policy. The court initially noted that, in the presence of a forum-selection clause, courts should give no weight to the plaintiff's choice of forum and should not consider arguments about parties' private interests because when parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. Therefore, a court may consider arguments about public-interest factors only. The court found that it could not assert personal jurisdiction over defendants as they were not at home within the state of Louisiana. As defendants noted in their motion to dismiss, there is no disagreement over the fact that the alleged incident at issue occurred outside of the United States, and therefore specific jurisdiction was not asserted. Therefore, the court could only consider whether it may assert general personal jurisdiction over defendants. Defendants' contacts with the United States were not so continuous and systematic as to render them essentially at home in the United States and therefore did not satisfy due process. Dismissal on the grounds of forum non conveniens was also warranted because the employment agreement contained a valid and enforceable forum selection clause and the Supreme Court has held that forum selection clauses in admiralty cases are presumptively valid and enforceable. The court found that Skoglunds argument that enforcement of the forum-selection clause was void as against public policy was flawed, noting that the cases Skoglund primarily relied on as support for his argument had been overturned or abrogated. Therefore, considering the fact that defendants were not at home in Louisiana or the United States, and that Skoglund’s employment agreement contained a valid and enforceable forum-selection clause, dismissal was appropriate and the court granted Petroaudi’s motion. (USDC EDLA, November 20, 2018) 2018 U.S. Dist. LEXIS 198496
FORUM SELECTION CLAUSE VALID AND ENFORCEABLE IN ADMIRALTY CASES
SKOGLUND V. PROCUREMENT SERVICES (DELAWARE) INC.
In a separate ruling in the same case above, another defendant, Procurement Services (Delaware) Inc., filed a motion to dismiss Skoglund’s claims on the grounds of forum non conveniens and improper venue based on a forum-selection clause in Skoglund’s employment agreement. The only different issue in this ruling was whether this defendant may enforce the forum-selection clause as a third-party. The court found that defendant was entitled to enforce the forum-selection clause pursuant to the Third Party Rights paragraph in the employment agreement. The Third Party Rights paragraph of the employment agreement states that any "Group Company" is entitled to enforce "any rights and obligations" under the agreement. The Agreement defined "Group Company" to include any subsidiary, and defendant asserted that it was a wholly-owned subsidiary of PetroSaudi Oil, as supported by the sworn affidavit. Skoglund’s argument that forum-selection clauses should not be enforced in suits by American seamen against American companies was not supported by case law. The court again found that the forum selection clause was valid and enforceable, granting defendant’s motion to dismiss. (USDC EDLA, November 20, 2018) 2018 U.S. Dist. LEXIS 198495
FAILURE TO REQUIRED HARD HATS COULD BE CONTRIBUTORY NEGLIGENCE
LEWIS V. NEREUS SHIPPING ET AL.
This case arose out of an alleged workplace accident involving Darry Lewis, who claimed he was hit on the head with a hard hat, allegedly thrown by a Nereus Shipping crew member, during a fueling operation. On the day of the accident, Lewis, an employee of John W. Stone Oil Distributor, LLC, was transferring diesel fuel from Stone Oil's barge to a vessel owned by defendant Blue Rock Shipping Company and operated by Nereus Shipping. After the incident, Stone Oil made maintenance, cure, and unearned wage payments to Lewis for injuries that it determined were the result of the accident. Lewis filed his seaman’s suit against Nereus and Blue Rock, claiming that their negligence caused his injuries, and were therefore liable to him for damages. Stone Oil then moved for summary judgment seeking indemnity from Nereus and Blue Rock for its maintenance and cure payments to Lewis. Stone Oil argued that it had no fault in causing Lewis's injury, and that Nereus, through its crew member, was at fault for Lewis's injuries. It therefore argues that Nereus must indemnify it for the full amount of the maintenance and cure payments and the unearned wage payments that it made to Lewis. In response, defendants and Lewis contended that Stone Oil was contributorily negligent for failing to require Lewis to wear a hard hat that could have reduced or prevented his injuries, and that this alleged contributory negligence raised an issue of material fact. It was undisputed that on the day of the accident, Lewis was not wearing a hard hat, and Stone Oil did not require him to wear one. The court pointed out that Stone Oil had a duty of reasonable care to provide a safe work environment for its employees. A reasonable jury could find that failure to promulgate safety regulations and to require the use of safety equipment was a breach of the employer's duty and contributory negligence. Thus, whether Stone Oil was contributorily negligent raised a material issue of fact that precluded summary judgment for Stone Oil. Stone Oil's motion for summary judgment was denied. (USDC EDLA, November 9, 2018) 2018 U.S. Dist. LEXIS 192086
COURT ALLOWS DISCOVERY BEFORE RULING ON EMPLOYER’S MOTION
THORNTON V. FLORIDA MARINE TRANSPORTERS, LLC
Montrey Thornton brings his seaman’s action to recover for injuries he allegedly sustained in two separate incidents while working as a deckhand and crewmember aboard a vessel owned by Florida Marine Transporters, LLC. Thornton alleged that he injured his back while handing down a crossover hose on a barge, and again while building tow in the Lewis & Clark Fleet. He brought Jones Act negligence, unseaworthiness, and maintenance and cure claims against Florida Marine in connection to both incidents. Thornton originally alleged that the first incident was caused by his co-worker's failure to pull his weight while the two were working with a wire and ratchet. When discovery revealed that the person who did not pull his weight was an employee of the Lewis & Clark fleet Thornton added SCF Lewis & Clark Fleet, LLC and SCF Lewis & Clark Terminals, LLC as defendants. Florida Marine moved for partial summary judgment dismissing Thornton's Jones Act negligence and unseaworthiness claims stemming from the first incident, arguing that Thornton cannot establish the essential elements of these claims, because it could not be held liable for the actions of a separate company's employee and the vessel was seaworthy. Thornton filed a Rule 56(d) motion in response, asking the court to defer consideration of Florida Marine's motion for partial summary judgment, contending that whether Florida Marine directly employed the worker in question does not resolve its potential liability under the Jones Act and general maritime law, and that additional discovery into the relationship between Florida Marine and the Lewis & Clark deckhand was critical to his response. In opposition to Thornton's Rule 56(d) motion, Florida Marine argued that sufficient facts were available through the record and the previously produced discovery to allow Thornton to oppose its motion for partial summary judgment. Based upon the affidavit from Thornton’s attorney, submitted in support of his motion, the court found that Thornton had demonstrated his entitlement to Rule 56(d) protection, and the requested discovery was necessary for his response to Florida Marine's motion for partial summary judgment. Thornton’s Rule 56(d) motion was granted and Florida Marine’s motion for partial summary judgment was denied without prejudice. (USDC EDLA, November 15, 2018) 2018 U.S. Dist. LEXIS 194894
ANOTHER REMOVAL ACTION BITES THE DUST
MONGAYA, ET AL. V. AET MCV BETA, LLC
This consolidated lawsuit1 found its genesis in the alleged personal injuries sustained by a Filipino seaman who worked aboard a Marshall Islands flag vessel while on navigable waters off the coast of Florida. Mervy Lloyd Mongaya, a citizen of the Philippines, entered into a Philippine Overseas Employment Administration Contract of Employment with AET Shipmanagement Pte Ltd (AET). Mongaya's employment contract contained both an arbitration clause and a choice of law provision. However, neither the vessel owner or the vessel operator were signatories to his contract. Mongaya allegedly sustained head injuries aboard the vessel, he claims caused permanent paralysis from the chest down. Mongaya sued the vessel owner in state court, alleging claims of unseaworthiness and negligence, and seeking damages stemming from his alleged injuries. To avoid detention of its vessel, its owner agreed to provide security for Mongaya's claims in the amount of $9.5 million. The vessel owner removed Mongaya’s case to federal court, pursuant to 9 U.S.C. §205, invoking federal question jurisdiction under 9 U.S.C. §203 and 28 U.S.C. §1331. Mongaya moved to remand, and the vessel owner moved to dismiss. The court initially found that the arbitration clause contained within Mongaya's Philippines approved employment contract fell under the Convention. However, the court also found that, because the vessel owner did not contend that the claims asserted in the Defamation and Injunction Actions were arbitrable, or otherwise indicate how the arbitration clause will affect the outcome of those actions, it failed to establish that these claims "relate to" the arbitration agreement within the meaning of §205. Accordingly, these two actions were not properly removed under §205. An independent federal jurisdictional basis did not exist respecting the Defamation or Injunction Actions, so remand was appropriate. Accordingly, plaintiffs' motion to remand was granted, and the defendant's motion to dismiss was denied for lack of jurisdiction. (USDC EDLA, November 19, 2018) 2018 U.S. Dist. LEXIS 197883
Quotes of the Month . . .“We have to do the best we are capable of. This is our sacred human responsibility.” --Albert Einstein
“Two roads diverged in a wood, and I took the one less traveled by, and that has made all the difference.” -- Robert Frost
“There is nothing noble in being superior to your fellow man; true nobility is being superior to your former self.” -- Ernest Hemingway
Please note that these opinions and statements are my own. They do not represent the position of my employer or any other organization to which I belong. These opinions may not even represent my own opinion at a later time or place. Under no circumstances should these opinions and statements be considered legal advice. If you want legal advice, please consult an attorney.
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