January 2019 HAPPY NEW YEAR!!!
Notes From Your Updater: One of the nation's leading experts in admiralty law, Professor David W. Robertson, passed away on December 27, 2018, after a long battle with cancer. Professor Robertson’s work has been cited many times by the U.S. Supreme Court. He is the author of the classic Admiralty and Federalism and co-author of Cases and Materials on Torts and co-author of Admiralty and Maritime Law in the United States. His numerous articles have appeared in Texas Law Review, Michigan Law Review, Modern Law Review, Law Quarterly Review, Tulane Law Review and elsewhere. He and his insightful analysis of admiralty law will be sincerely missed by the entire maritime community.
OALJ has posted a collection of documents related to ALJ appointments on a dedicated Proactive Disclosures - Appointments Clausepage.
On December 7, 2018, the petition for writ of certiorari was granted by the U.S. Supreme Court in the case of The Dutra Group v. Batterton, Docket No. 18-266 [see February 2018 Longshore Update]. The question presented to the Court is, “Whether punitive damages may be awarded to a Jones Act seaman in a personal injury suit alleging a breach of the general maritime duty to provide a seaworthy vessel.”
On December 10, 2018, the U.S. Supreme Court denied the petition for certiorari in the case of Liberty Mutual Ins. Co., et al. V. Carrizo Oil & Gas, Inc., Docket No. 18-436 [see November 2018 Longshore Update]. The question presented to the Court was, “Is a contract to provide services to oil wells located on fixed platforms in navigable waters within a State a ‘maritime’ contract when a vessel played a substantial role in the performance of the contract?”
Pursuant to the approval of each of their respective Boards of Directors, and the affirmative vote of each organization’s membership, the Northwest Longshore Administrators Association (NWLAA) with the Longshore Claims Association (LCA) have agreed to merge. The NWLAA began as informal lunch meetings of the LHWCA defense community in Portland, Oregon. In 1983 it was formally organized as a registered non-profit when the OWCP announced that they would no longer provide speakers and meeting space to profit making organizations (at the time this primarily involved a one day Spring LHWCA seminar in Seattle, Washington). Over the years, the NWLAA has organized numerous lunch meetings, one-day and two-day seminars in both Portland and Seattle. Its mission has been to offer high quality programs to the Longshore community at a reasonable cost.The LCA was organized in 1989. Although the LCA’s founding Board of Directors signed the first papers in Portland at the NWLAA’s first two-day seminar in 1989, the organization has primarily operated out of California. The LCA has organized numerous roundtable luncheons, one-day and two-day seminars, primarily in Northern and Southern California. Both the NWLAA and the LCA have been co-sponsors of the Signal Longshore seminar in May. With the success of that seminar, and other LHWCA seminars that have developed around the country, the NWLAA has been focusing on its lunch meetings. They determined that these could be provided just as effectively as LCA roundtable luncheons, and that there is no longer a need for a separate organizational structure, with its dues, record keeping, insurance, etc. It is hoped that this merger will strengthen the LCA, broaden its base on the West Coast, and encourage regular roundtable luncheons in other regions of the country.
APPELLATE COURT DENIES PRO SE CLAIMANT’S PETITION FOR REVIEW
PATTON V. UNITED STATES DEPARTMENT OF LABOR, ET AL.
William Patton, proceeding pro se, sought review of an order of the United States Department of Labor Benefits Review Board affirming the denial of Patton's claim for disability and medical benefits under the LHWCA, and the dismissal of his LHWCA discrimination claim. The appellate court found that the ALJ correctly concluded that Patton's claim for disability benefits for a hernia injury was untimely. Because Patton's claim accrued no later than the date of his surgery, he was required to seek benefits under the LWHCA before November 2004. But he did not file his disability claim until April 2008, well after the one-year limitations period expired. The appellate court also found that the ALJ was correct that the LHWCA's tolling provision did not apply. Though Patton's employer did not file the required report until May 2007, when Patton submitted certain paperwork related to his injuries, substantial evidence supported the ALJ's finding that the employer did not know Patton suffered a work-related injury until that time. Therefore, section 930(f)'s tolling provision was never triggered. Accordingly, the claim was time-barred. The appellate court likewise concluded that the ALJ's denial of disability benefits for chronic obstructive pulmonary disease and an alleged work-related psychological injury was supported by substantial evidence. With respect to Patton's COPD, the ALJ was entitled to give substantial weight to the medical opinions, both of which concluded that Patton's COPD was unlikely to have been caused or aggravated by his employment and to discount the equivocal evidence provided as to Patton's alleged psychological injury, the ALJ was entitled to rely on medical evidence suggesting that Patton suffers from an anxiety disorder that manifested well before he began his employment, and to discount arguably conflicting evidence provided by Patton's doctor, a general practitioner with no expertise in psychology. Finally, the appellate court found that substantial evidence supported the ALJ's dismissal of Patton's LHWCA discrimination claim. Patton failed to establish a prima facie case of discrimination because, other than his own speculative testimony, he adduced no evidence that he was terminated to prevent him from filing a worker's compensation claim. Accordingly, the ALJ properly dismissed Patton's discrimination claim. The appellate court affirmed the Board's order and denied the petition for review. (2nd Cir, December 17, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 35260
APPOINTMENTS CLAUSE CHALLENGE HELD TO BE FORFEITED
ISLAND CREEK COAL COMPANY V. WILKERSON, ET AL.
The appellate court found that, where the Benefits Review Board awarded a coal miner Black Lung Benefits Act, 30 U.S.C. §921, benefits, Island Creek’s argument that the administrative law judge lacked authority to hear the case under the Appointments Clause was waived because Island Creek failed to raise this claim in its opening brief and there were no exceptional circumstances to excuse forfeiture of this issue. The appellate court also found that Wilkerson was entitled to benefits because he worked more than 15 years at a qualifying mine and substantial evidence showed that he suffered total disability due to a respiratory or pulmonary impairment of coal-mine-induced pneumoconiosis. The ALJ properly relied on testimony of one particular doctor to reach his conclusion because he found that the other doctors' testimony was unreliable and he properly followed the most credible medical testimony presented. Island Creek’s petition was denied. (6thCir, December 3, 2018) 2018 U.S. App. LEXIS 33856
Updater Note: As my long-suffering readers know, I don’t typically review Black Lung cases. However, this appellate court opinion includes significant discussion of the Appointments Clause issue and Lucia, 138 S. Ct. 2044, which is an issue being raised in Longshore cases, as well as black lung cases. I thank Ken Engerrand, of Brown, Sims, Houston, TX, for bringing this case to my attention.
BORROWED SERVANT DOCTRINE APPLIES TO LHWCA EMPLOYEES
CRUZ V. NATIONAL STEEL AND SHIPBUILDING COMPANY, ET AL.
Sira Cruz allegedly suffered injuries to her ribs and lungs while working as a tank tester aboard a Navy ship that was docked for repairs. She collected workers' compensation from her primary employer, Tradesmen International, Inc., a staffing agency. Then, she brought a negligence action against general contractor National Steel and Shipbuilding Company (NASSCO) seeking recovery for the same injuries. NASSCO, which had functioned as Cruz's borrowing employer for several years at the time of the accident, asserted that it was immune from suit pursuant to the "one recovery" policy at the heart of workers' compensation law. The district court granted NASSCO's motion for summary judgment on these grounds. Cruz appealed from that judgment, alleging that even when NASSCO gave her work assignments, she controlled the details of her work and NASSCO employees did not supervise or direct her. In the two years immediately preceding her injury Tradesmen assigned Cruz to work exclusively for NASSCO, with the exception of one week where it assigned her to work for another Tradesmen client. In support of its motion for summary judgment, NASSCO had submitted a screenshot of Cruz's Facebook profile, where she listed her employer as NASSCO from March 2008 to the present. Tradesmen, which paid Cruz's LHWCA claim, was Cruz's contractual employer at the time of her injury. However, the district court held that NASSCO was legally Cruz's employer at this time under the borrowed employee doctrine and thus was entitled to assert the defense of LHWCA immunity. NASSCO employees instructed Cruz to work in the tank where she was injured. The appellate court found that the record established that NASSCO was Cruz's borrowing employer because her work was subject to its direction and control at all relevant times. The appellate court pointed out that borrowed employees are not among the eight categories of laborers Congress chose to categorically exclude from coverage in §902(3). Moreover, §902(3)(D)'s exclusion of certain individuals further supported its conclusion. Section 902(3)(D) excludes only a narrow subset of borrowed employees: those who perform work for the borrowing employer distinct from the type of work that employer's conventional employees perform. This precise language reflects a policy decision by Congress to exclude some borrowed employees - but not all. The appellate court joined the Third, Fourth, Fifth, and Eleventh Circuits in holding that the borrowed employee doctrine applies to "employees" under the LHWCA. The LHWCA provides maritime employees one guaranteed recovery for covered injuries. Cruz received her recovery, and the district court was correct to preclude her from pursuing a second. For these reasons, the judgment of the district court was affirmed. (9th Cir, December 19, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 35535
Updater Note: This was a Ninth Circuit case of first impression as to whether the borrowed servant doctrine applies under the LHWCA. The Ninth Circuit joined the other circuits in holding that it does. My thanks to Pamela L. Schultz, of Hinshaw & Culbertson LLP, San Francisco, CA, for taking the time to share this opinion with me.
FIFTH CIRCUIT REEXAMINES EXTENT OF OSHA AUTHORITY
ACOSTA V. HENSEL PHELPS CONSTRUCTION COMPANY
Hensel Phelps Construction Company entered into a contract with the City of Austin to build a new public library. Hensel Phelps, as general contractor, maintained control over the worksite through the presence of on-site management personnel, including superintendents, project engineers, and project managers. Hensel Phelps contracted with subcontractor Haynes Eaglin Watters, LLC (HEW), to do certain work on the project. HEW contracted with sub-subcontractor CVI Development, LLC, to complete demolition, excavation, and other work as required. As the excavation at the worksite progressed, a nearly vertical wall of soil was allowed to develop, measuring approximately 12 feet in height and 150 feet in length. OSHA regulations mandate that excavations in this type of soil use protective systems, such as sloping, to protect employees from cave-ins. No such protective systems were put in place at this excavation. CVI was assigned to reinstall reinforcing rods at the base of this excavated wall of soil, preliminary to pouring concrete footings. The wall was not properly sloped or otherwise protected from cave-in hazards, and had not been for several days. Concerned about the combination of the weather and the instability of the excavation wall, CVI sent its employees to work on another area of the site while he awaited instructions from HEW or Hensel Phelps on how to proceed at the excavation area. When a City of Austin inspector saw the CVI employees working at the other location, the inspector also reported to Hensel Phelps' area superintendent that CVI employees were working at the other location. The superintendent instructed CVI to have its employees return to the excavation and not to do any other work until the excavation work was completed. CVI sent an email to HEW's senior project manager, stating that placing rebar in the mud and rain is unorthodox and very dangerous. The project manager gave only a cursory reply that CVI should comply with its instructions. CVI thereafter removed its employees from the other work area and sent them back to the excavation area to install rebar. That same day, the OSHA Area Office in Austin received a complaint of hazardous working conditions at the library project excavation area. A compliance officer conducted an inspection of the site and discovered three CVI employees working at the base of the unprotected wall of excavated soil. The city inspector, Hensel Phelps' superintendent, and both Hensel Phelps' and HEW's project superintendents were present at the wall, as well, with full views of the CVI employees working there. OSHA cited both CVI and Hensel Phelps for willfully violating 29 CFR §1926.652(a)(1)3 by exposing employees to a cave-in hazard from an unprotected excavation at a construction site. Hensel Phelps timely contested the citation. The ALJ determined that Hensel Phelps met the requirements to be considered a "controlling employer" who has a duty under the OSHA to act reasonably to prevent or detect and abate violations at the worksite even when the affected employees are those of another employer. Under Commission precedent, the stipulated facts dictated a finding that Hensel Phelps violated 29 CFR §1926.652(a)(1). But this finding was not the end of the matter, for where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission generally applies the precedent of that circuit in deciding the case, even if it may differ from the Commission's precedent. Because the citation arose within the jurisdiction of the Fifth Circuit, the ALJ found that Fifth Circuit precedent foreclosed the citation, citing Melerine v. Avondale Shipyards, Inc., Therefore, the ALJ vacated the citation. The Secretary timely filed a petition for review at the Fifth Circuit. The appellate court held that the administrative law judge erred by vacating the citation, because the agency's construction of the statute as granting authority to issue citations to controlling employers was a reasonably defensible one, and the agency had the authority under 29 U.S.C. §654(a)(2), to issue citations to controlling employers at multi-employer worksites for violations of OSHA standards. Hensel Phelps maintained control over the worksite through the presence of on-site management personnel, including superintendents, project engineers, and project manager. The appellate court determined that its prior decision regarding OSHA jurisdiction relating to multi-employer work sites had been overruled by subsequent Supreme Court decisions and held that the agency has authority to issue a citation to a general contractor at such site who controls a hazardous condition there, even if the condition affects another employer’s employees. The petition for review was granted and the case was remanded. (5th Cir, November 26, 2018) 2018 U.S. App. LEXIS 33155
Updater Note: While this is not a maritime case, the ruling will apply to maritime companies in instances not directly controlled by US Coast Guard inspection requirements.
APPELLATE COURT HOLDS BUNKER SUPPLIER MAY HAVE MARITIME LIEN
U.S. OIL TRADING LLC V. M/V VIENNA EXPRESS, ET AL.
This case involved an appeal by U.S. Oil Trading LLC (USOT) from orders and partial final judgments of the district court, rejecting claims by USOT that it was entitled to assert maritime liens against vessels, owned or chartered by Hapag-Lloyd Aktiengesellschaft, to which USOT, pursuant to arrangements with and among other entities, physically supplied marine fuel for which USOT was not paid following the bankruptcies of the entities involved in the supply contracts with USOT or Hapag. The district court denied USOT's motions for summary judgment on its maritime-lien claims and entered partial final judgments dismissing those claims, ruling that the claims were governed by the Commercial Instruments and Maritime Liens Act, and that physical suppliers who were subcontractors were not entitled to maritime liens because their fuel sales were not made on the order of the owner or a person authorized by the owner of the vessel. On appeal, USOT contended principally that the district court erred in finding it was not entitled to a maritime lien in the absence of a contractual or agency relationship with the vessels or with an authorized entity specified in CIMLA, and that USOT was entitled to the liens because Hapag's purchase orders specified that the physical supplier of the fuel was to be USOT. The appellate court concluded that purchase orders and admissions by Hapag in these actions permitted a conclusion that Hapag directed that USOT be the subcontractor to supply the fuel, thereby bringing USOT within an established exception that allowed maritime liens to be asserted by subcontractors whose selection was controlled or directed by the vessel's owner/charterer. Therefore, the appellate court vacated the judgments and remanded for trial on the issue of whether Hapag directed that USOT be the physical supplier. The district court’s judgment was vacated and the case was remanded. (2nd Cir, December 19, 2018) 2018 U.S. App. LEXIS 35632
APPELLATE COURT HOLDS SUMMARY JUDGMENT WAS PREMATURE
NCL BAHAMAS V. OW BUNKER USA
In an unpublished decision, the US Court of Appeals for the Second Circuit vacated an award of summary judgment in a bunker supplier dispute regarding the forum for arbitration, requiring further consideration of contract terms.
FIXED PLATFORM IS NOT A VESSEL AND OCSLA APPLIES TO CLAIMANT
ROSS VERSUS W&T OFFSHORE, INC.
Alton Ross worked as a galley-hand/cook for Bailey's Support Services, Inc. while stationed on an oil production platform owned by W&T Offshore, Inc. Ross alleged that he slipped and fell on a wet galley floor, allegedly causing several injuries, which he attributed to the negligence of W&T. Ross filed suit against W&T in state court, seeking to recover damages under the Jones Act and general maritime law. The petition also claimed under Louisiana law. W&T removed the case to federal court, and moved for partial summary judgment, arguing that it was entitled to partial summary judgment on Ross’s Jones Act claims and general maritime law claims because the alleged accident did not occur on a vessel and because Ross could not show a maritime situs or a connection to traditional maritime activity. W&T further contended that its platform is an oil and gas production platform that has been permanently affixed to the Outer Continental Shelf for over two decades. W&T averred that because Ross’s alleged accident occurred on a fixed production platform and not a vessel, his claims against W&T were governed by the Outer Continental Shelf Lands Act (OCSLA)which mandates application of Louisiana law. Consequently, W&T urged the Court to dismiss Ross’s Jones Act and general maritime law claims. Similarly, W&T argued that Ross’s unseaworthiness claim must fail because its platform is not a vessel. Lastly, W&T argued that Ross’s negligence claim brought under general maritime law must fail because Ross could not meet the two requirements for a tort claim in admiralty. Accordingly, W&T urged the court to grant summary judgment on all of Ross’s claims brought under the Jones Act and general maritime law. Ross averred that subpoenaed employment documents informed W&T of Ross’s Jones Act seaman status, and because the motion ignores this fact, partial summary judgment should be denied. The court pointed out that Ross was asked during his deposition whether he was being permanently assigned to W&T’s platform, and he responded, it was his rig. Therefore, even assuming that Ross had submitted competent summary judgment evidence showing that he was a Jones Act seaman at some point prior to being assigned to the platform, the undisputed evidence showed that he was reassigned to a job that was aboard an offshore oil platform, which is not a vessel under the Jones Act. Accordingly, the Court found that there was no genuine issue of material fact and W&T was entitled to summary judgment on Ross’s Jones Act claim. In the same vein, because Ross did not identify specific facts in the record and articulate evidence that there was a genuine dispute over whether the W&T platform is a vessel, the court granted summary judgment in favor of W&T on Ross’s unseaworthiness claim. Finally, under Fifth Circuit precedent, cooking on a fixed platform would bear no significant relation to traditional maritime activity, and Ross’s negligence claims under general maritime law would be untenable. Ross did not submit any evidence to create a genuine dispute of fact on this issue. Accordingly, W&T was entitled to summary judgment on Ross’s negligence claim brought under general maritime law. Therefore, the court granted W&T's motion for partial summary judgment on Ross’s Jones Act and general maritime law claims. (USDC EDLA, December 10, 2018) 2018 U.S. Dist. LEXIS 207809
OCSLA CLAIMANT FAILS TO SHOW QUESTION OF FACT UNDER §905(B) (CONT.)
DUKES V. ZAFIRO MARINE
This litigation arose from personal injuries allegedly sustained by Joseph Dukes when he rolled his ankle climbing down a three-rung ladder from his upper bunk located in the living quarters of a vessel. Dukes was employed by MMR Contractors, Inc. as an instrumentation and electrical technician and working on an offshore platform off of the Louisiana coast that was owned by BP Exploration & Production Inc. Dukes worked twelve-hour shifts on the platform, and spent the other twelve hours of the day on a large quarters vessel located near the platform, that was owned by CVI and time chartered by BP from Harkand Gulf Contracting, Ltd. Dukes was assigned to an upper bunk on the quarters barge, which had a three-rung ladder attached to the frame of the top bunk by metal "L"-shaped brackets. When Dukes was climbing down from his upper bunk, he placed his right foot on the top rung of the ladder, but the ladder allegedly slid along the upper bunk framing to which it was attached, causing Dukes to twist his right ankle, lose his balance, and fall to the floor. Dukes slept in the same upper bunk and used the same ladder for at least the six days leading up to the incident at issue. Dukes did not make any reference to a fall or that the ladder had moved in either injury report he completed. In his lawsuit, Dukes claimed for the first time that the ladder moved causing him to fall, and as a result of the fall he injured his ankle, left hip, lower back, and left shoulder. Dukes named Zafiro Marine as the defendant, alleging that Zafiro owned, operated, and/or controlled the quarters barge and that Zafiro's negligence and the unseaworthiness of the vessel caused Dukes' injuries. Dukes named BP as a defendant, but the court granted BP's motion for summary judgment, dismissing Dukes' claims against BP [see May 2017 Longshore Update]. Dukes amended his complaint several times attempting to name the correct owner of the quarters barge: Zafiro was replaced with ZM Industries Limited, which was later replaced with CVI Global Lux Oil and Gas, which is a non-existent entity. CVI appeared as the registered owner. CVI filed the instant motion in limine seeking to exclude the testimony of Dukes' purported expert in naval architecture, marine engineering, and marine safety. CVI did not challenge the expert’s qualifications, but rather argued that his opinions will not aid the trier of fact because the accident involves issues within a layperson's general understanding - namely, falling off of a bunk bed ladder. CVI also argued that the expert offered impermissible legal conclusions. Dukes opposed the motion, arguing that his expert’s testimony should not be excluded because his expertise in maritime safety would aid the trier of fact in understanding safety standards that are unique to the maritime industry, and generally not within a juror's common knowledge. Based on his education and experience, the court found that the proffered expert had technical expertise in vessel classification, surveying, design, and management; vessel rules and regulations; and assessment of vessels under international codes and flag state regulations. However, the expert’s report also offered several opinions that constitute legal conclusions, or factual determinations that are reserved for the jury, and thus were inadmissible. Further, the expert offered an opinion that the bunk bed was unsafe because it lacked lee rails, which run along the bed to prevent the occupant from falling out while sleeping. Dukes allegedly fell while exiting the top bunk because the ladder moved. Whether the bunk bed had proper lee rails was irrelevant to the facts of this case. CVI's motion in limine to exclude the expert testimony was granted as to excluding the expert’s legal conclusions, statements regarding fault, and irrelevant opinions regarding lee rails; the motion was otherwise denied. (USDC EDLA, December 14, 2018) 2018 U.S. Dist. LEXIS 211604
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #290 & #291. Although you get great up-to-date information as a subscriber to the Longshore Update, you can use this excellent resource to keep your Judges’ Benchbook up to date. Just follow the above link to the OALJ web site.
The last full supplement to the Longshore Benchbook was published in January 2005. However, OALJ has published an index that provides a cross-reference between Benchbook Topics and U.S. Supreme Court, Federal District and Circuit Courts, and Benefits Review Board decisions, issued since 2004 and covered in OALJ's "Recent Significant Decisions Monthly Digest."
IRS INCREASES MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/19
On December 14, 2018, the Internal Revenue Service released the optional standard mileage rates to use for 2019 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning January 1, 2019, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:
• 58 cents per mile for business miles driven
• 20 cents per mile driven for medical or moving purposes
• 14 cents per mile driven in service of charitable organizations
The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile. The business mileage rate and the medical and moving expense rates increased 3.5 and 2 cents per mile respectively from the rates for 2018. The charitable rate is set by statute and remains unchanged.
Updater Note: You can check out the revised IRS mileage rates here. The Office of Government-wide Policy, GSA also sets mileage reimbursement rate for use of a privately owned automobile (POA) on official travel. GSA has not yet published their 2018 rates. You may review the latest GSA bulletin here. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS). Which rate should you be using to reimburse travel under the Longshore Act? That is a question you may want to consult with your attorney on.
And on the Admiralty front . . .
EMPLOYER NOT VICARIOUSLY LIABLE FOR NEGLIGENCE OF MEDICAL PROVIDER
RANDLE V. CROSBY TUGS, LLC
David J. Randle suffered a stroke on his assigned vessel while working for Crosby Tugs, LLC. The nature of his injury was not immediately apparent, and the captain of the vessel called 911. The emergency responders took Randle to a nearby hospital, where physicians failed to diagnose his condition correctly. As a result, Randle did not receive medication that might have improved his post-stroke recovery. Randle is permanently disabled because of the stroke and needs constant custodial care. He brought suit against Crosby, arguing that Crosby negligently failed to provide prompt and adequate medical care; provided an unseaworthy vessel; and failed to provide maintenance-and-cure benefits. The district court granted Crosby's motion for partial summary judgment on Randle's negligence and unseaworthiness claims. The parties settled Randle's maintenance-and-cure claim prior to this appeal. On Randle's motion, the district court certified the partial summary judgment as a partial final judgment pursuant to Federal Rule of Civil Procedure 54(b), from which Randle could appeal. The Fifth Circuit affirmed summary judgment to Crosby on the Jones Act claim. The court distinguished cases like Hopson, Sambula, and De Centeno because Crosby did not select the provider and was not negligent in that selection. Therefore, there was no direct liability of Crosby, nor was the medical provider acting as an agent of Crosby. The “operational activity” rule from Hopson did not override the basic agency principle that an employer is not liable for the acts of an unrelated third party. The court applied the rule that the negligence of the medical provider that is chosen by the seaman and not by the employer is not imputed to the employer in this situation where the provider is chosen by the first responders. As Randle failed to put forth evidence demonstrating a genuine issue of material fact as to whether Crosby fulfilled its duty to provide medical care under these circumstances, the appellate court affirmed the district court grant of summary judgment in favor of Crosby. (5thCir, December 19, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 35558
FIFTH CIRCUIT AFFIRMS JURY AWARD ON CROSS APPEALS
MCGRAW V. UNITED TUGS, INCORPORATED
Clinton McGraw, a Jones Act seaman, sued his former employer, United Tugs, Inc., for negligence and unseaworthiness after he injured his back while working aboard one of United's vessels. A jury found United liable for negligence and awarded McGraw $325,000 in compensatory damages. Both being unsatisfied with the jury's award, the parties cross-appealed the jury verdict. The parties specifically disputed the jury's award for lost wages and fringe benefits. The jury awarded McGraw $100,000 in future lost wages and fringe benefits and $0 in past loss wages and fringe benefits. McGraw argued that both amounts were too low given the evidence presented at trial. United responded that, if anything, the $100,000 award for future lost wages and fringe benefits was too high. The appellate court found that the record contained at least some evidence to support the jury's conclusion that United's negligence did not cause McGraw any past wage or fringe-benefit loss. The jury could have concluded that McGraw was able to perform sedentary work following his injury but chose not to, thus failing to mitigate his damages. McGraw's surgeon testified that McGraw could perform a medium level of work and that there was no period of bedrest following McGraw's surgery. Further, the jury saw videos from a private investigator that depicted McGraw moving about without difficulty. Secondly, there was also at least some evidence to support the jury's conclusion that McGraw lost only $100,000 in future lost wages and fringe benefits. This award was within the range of estimates given by the parties' expert witnesses. The evidence at trial showed that McGraw held a checkered work history. Further, the jury had good reason to conclude that McGraw would have difficulty holding down consistent work even if he had not been injured: he had spent several months in jail, he had been terminated from multiple jobs, and he had lied about his criminal history on his employment application with United. Accordingly, the jury did not have to believe McGraw would earn $51,000 for the remainder of his career. Finally, the appellate court rejected McGraw's argument that defense counsel's reference to the parties' maintenance and cure settlement improperly colored the jury's damages award for negligence. Viewing the record as a whole, it was unlikely that counsel's argument swayed the jury. The appellate court denied United's cross-appeal, as the jury's award for future lost wages fell within the range the parties' experts provided. The jury was not bound to completely accept either expert's estimate. The district court's judgment was affirmed. (5thCir, December 11, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 34934
ELEVENTH CIRCUIT ADDRESSES INTOXICATED PASSENGER INJURY
CARON V. NCL (BAHAMAS), LTD.
This interesting case involves a drunken tumble down an escape hatch on a cruise ship. Olivier Caron was allegedly injured while a passenger on a ship owned and operated by Norwegian Cruise Line (NCL). On the second day of his cruise, Caron bought an all-inclusive package, which allowed him unlimited beer and wine while on the cruise, and proceeded to drink beer late into the night. After leaving the bar, instead of returning to his room, Caron entered an area that was clearly marked with signs reading "CREW ONLY" and "RESTRICTED, CREW ACCESS ONLY." Pressing on, Caron entered another door labeled "CAUTION Only authorized crew beyond this sign," and fell several feet through an emergency-exit hatch, causing his alleged injuries. He filed suit, claiming the cruise line was negligent in allowing him to fall down the hatch and in over-serving alcohol to him, which led to his fall. The district court dismissed the over-service claim and granted summary judgment for NCL on the other negligence claim. Plaintiff appealed both rulings. The appellate court initially observed that it was troubled by the district court mistakenly believing it had jurisdiction under §1332 is troubling, but its lack of awareness did not invalidate the proceedings below, because the district court properly exercised admiralty jurisdiction. The appellate court also noted that, although Caron's original complaint was filed within this contractual limitations period, his over-service claim was not present in his original complaint; it was added in an amendment months later, after the one-year period had run. The appellate court next held that Caron's over-service claim is time-barred unless it related back to his original filing date. Since it did not, Caron's over-service claim was barred by the limitations clause. The district court granted summary judgment for NCL on Caron's other negligence theories. To survive summary judgment on his negligence claim based on a dangerous condition, Caron must produce evidence, sufficient for a jury to find for him, that the hatch was a dangerous condition of which NCL had notice. The appellate court agreed with the district court’s finding that Caron failed to show that the hatch he fell down was unreasonably dangerous, and the evidence Caron presents was insufficient to create a genuine issue of material fact on dangerousness. Caron thus failed to meet his burden to produce sufficient evidence that the hatch was unreasonably dangerous, and summary judgment was proper on his dangerous-condition theory. Even if Caron had produced evidence of dangerousness, summary judgment still would have been proper, as Caron failed to produce evidence that NCL was on notice of the dangerous condition. The appellate court held NCL was entitled to dismissal of Caron's over-service claim and summary judgment on Caron's negligence claim and affirmed the district court's judgment. (11th Cir, December 13, 2018) 2018 U.S. App. LEXIS 35012
MOTION IN LIMINE BEFORE BENCH TRIAL SEEMS LIKE A WASTE OF TIME (CONT.)
DUNN V. MARQUETTE TRANSPORTATION COMPANY, LLC
Kelvin Dunn was employed by Marquette Transportation Company as a boat captain. While off-duty, he was alerted to a fuel leak in the engine room of his assigned vessel. When he went to investigate the problem, he climbed down the stairs and entered the engine room, and slipped on a substance on the floor resulting in numerous fractures to his hip and/or femur, which required emergency surgery, as well as injuries to his lumbar spine. Dunn subsequently filed his Jones Act claim to recover damages, alleging that his injuries were caused by Marquette’s negligence and unseaworthiness of the vessel. Dunn also sought payments for maintenance and cure, in the event these payments are not timely made, in addition to punitive damages, attorney's fees and costs. Kelvin Dunn sued Marquette Transportation Company for unseaworthiness, maintenance and cure, and Jones Act negligence after an injury sustained on the vessel owned by Marquette. After a two-day bench trial, the district court awarded damages for past and future wages, future medical costs, past and future fringe benefits, and an award for pain and suffering [see August 2017 Longshore Update]. Marquette appealed the damages award, arguing that Dunn's negligence should mitigate the damages, the evidence did not support the damage award, and the district court incorrectly found unseaworthiness. Following a review of the briefs, the applicable law, and relevant parts of the record, and hearing oral argument, the appellate court found that the district court committed no reversible error. The judgment was affirmed. (5th Cir, December 11, 2018, UNPUBLISHED) 2018,U.S. App. LEXIS 34931
COURT FINDS IMPLIED CONTRACT CREATES MARITIME LIEN FOR WHARFAGE
SPM MANAGEMENT LLC, ET AL. V. MOTOR YACHT SEA AYRE, ET AL.
Dolores K. Ayres and Elizabeth Ayres Kerr appealed a district court's order awarding a maritime lien against their yacht, the Sea Ayre V. The district court held that SPM Management LLC and North 37 Management LLC had established their right to charge the Sea Ayre V for dockage, and the court imposed a maritime lien on the yacht in the amount of $10,124.80. The appellate court began its review by noting that compensation for wharfage may be claimed upon an express or an implied contract, and when the wharf is used without any agreement, the contract is implied, and the proprietor is entitled to recover what is just and reasonable for the use of his property and the benefit conferred. The claimants contested plaintiffs' implied dockage contract. After a thorough review of the record, the appellate court found no reversible error. To the contrary, the record supported the district court's conclusion that plaintiffs presented perfect paper title that fixed the boundaries of all parties' real property to the land and improvements. Thus, plaintiffs were entitled to an implied dockage contract and maritime lien to recover the unpaid rent. Accordingly, the appellate court affirmed the order and judgment of the district court. (4th Cir, December 20, 2018, UNPUBLISHED) 2018 U.S. App. LEXIS 35889
BUNKER SUBCONTRACTOR HAS NO MARITIME LIEN
CLEARLAKE SHIPPING PTE LTD. V. NUSTAR ENERGY SERVICES, INC., ET AL.
NuStar Energy Services, Inc., a physical supplier of marine fuel to two vessels time-chartered by Clearlake Shipping PTE Ltd., appealed from orders and a partial final judgment, denying NuStar's motion for summary judgment and dismissing its claims to maritime liens against the vessels. The district court ruled that, under the Commercial Instruments and Maritime Liens Act, NuStar was not entitled to maritime liens because it provided the fuel on the order of an entity other than the owner or a person authorized by the owner of the vessels. On appeal, NuStar contends principally that it was entitled to the claimed liens in light of CIMLA's plain text and purpose and as a matter of equity, regardless of NuStar's lack of contractual privity with the vessels' owner or charterer or their agent. The appellate court found no error in the district court's interpretation of CIMLA or its ruling that maritime liens may not properly be granted based on principles of equity. And as NuStar had failed to point to any evidence that the owner or charterer or their agent directed that NuStar be the physical supplier, NuStar's claims were unavailing. The district court’s judgment was affirmed. (2nd Cir, December 19, 2018) 2018 U.S. App. LEXIS 35522
COURT DISMISSES MOTION AS MOOT (CONT.)
COMEAUX V. ATOS ORIGIN IT SERVICES, INC., ET AL.
Lori Comeaux filed a complaint against multiple defendants, individually and on behalf of decedent, Melvin A. Comeaux, Jr., for negligence under the Jones Act, unseaworthiness under general maritime law, and negligence under Louisiana law, alleges that the decedent was employed by Halliburton Energy Services, Inc. (HESI) from 1979 through 1985 as a boat mate, who was exposed to benzene while transporting drilling mud. Comeaux alleged the benzene exposure caused decedent to contract leukemia, which ultimately resulted in his death. HESI moved to dismiss certain claims pursuant to Rule 12(b)(6), arguing that plaintiff's request for damages related to decedent's alleged future medical expenses failed as matter of law because those damages do not exist given decedent's death. HESI also argued that plaintiff's request for non-pecuniary damages failed as a matter of law because those damages are not recoverable by a seaman under the Jones Act or general maritime law. Finally, HESI contended that plaintiff's request for punitive damages failed because punitive damages are not recoverable under the Jones Act or general maritime law. The court issued an order denying as moot HESI's motion to dismiss in light of the plaintiff’s amended complaint [see May 2018 Longshore Update]. HESI then renewed its motion to dismiss, which plaintiff opposed. HESI only sought dismissal of plaintiff's request for non-pecuniary or punitive damages, which were based on decedent's status as a Jones Act seaman. HESI did not move the court to dismiss any request for non-pecuniary or punitive damages brought under Louisiana law based on the alternative theory that decedent was not a Jones Act seaman. The court noted that it was obligated to follow the binding precedent set forth by the Fifth Circuit in McBride and held plaintiff was precluded from recovering non-pecuniary or punitive damages against HESI under the Jones Act or general maritime law if decedent was found to be a Jones Act seaman. The court found that there were no issues of fact in dispute, and HESI was entitled to judgment as a matter of law, dismissing plaintiff's request for non-pecuniary and punitive damages, which were based on decedent's alleged status as a Jones Act seaman. HESI’s motion was granted and plaintiff’s requests for non-pecuniary or punitive damages were dismissed with prejudice. (USDC EDLA, December 3, 2018) 2018 U.S. Dist. LEXIS 204633
YOU KNOW THE CONSEQUENCES FOR NOT PROVIDING WHAT HE WANTS (CONT.)
BARTO V. RAY MCDERMOTT INTERNATIONAL VEHICLES, LTD, ET AL.
Mark Barto allegedly suffered injuries when a board he was standing on broke suddenly and without warning, caused him to fall backwards, and allegedly strike his head, left elbow and low back. Barto's filed his maritime personal injury claims against Shore Construction, LLC, J. Ray McDermott International Vessels, Ltd., and McDermott, Inc. Barto received maintenance and cure benefits from Shore throughout his treatment, but when Barto's treating physician recommended surgical intervention, and when defendants' physician disagreed with this recommendation, Shore denied Barto's request that it pay for the surgery. Barto amended his complaint, seeking damages for defendants' failure to authorize and pay for recommended surgery. Defendants moved to dismiss for failure to state a claim, citing Twomblyand Iqbal for the proposition that a plaintiff may not simply plead the labels of arbitrary, capricious, or without probable cause, but rather must include additional factual allegations to support such labels. Barto contended that he had fully satisfied notice pleading requirements. Given the non-complex nature of the case, the court found that Barto's allegations satisfied notice pleading requirements, noting that the allegations made defendants aware of what the claim is (breach of the duty to provide full maintenance and cure), the grounds upon which the claims rest (failure to pay for the surgery recommended by Barto's physician), and the relief sought (compensatory and punitive damages). The court found its ruling supported by the fact that defendants had already made such an inference and clearly explained the nature of the dispute in the motion to dismiss. Therefore, the defendant was clearly on notice of the claims against it, making dismissal unwarranted. Defendants’ motion to dismiss was denied [see June 2014 Longshore Update]. After a bench trial, the district court held that McDermott was liable under the Jones Act, reasoning that McDermott failed to provide Barto with a safe place to work. The court also held that Barto was not comparatively negligent. As to damages, the court held that McDermott owed Barto $400,000 in future general damages and $300,000 in future lost wages. Finally, the court held that Shore was liable for the surgery costs as cure. McDermott appealed the district court’s finding that it was completely at fault for the accident, as well as several components of the Jones Act damages award. Shore appealed a portion of the cure award. Upon a review of the entire record, the appellate court rejected McDermott’s contention that the district court misunderstood elementary principles of Jones Act liability. Nor did the district court clearly err in finding that McDermott failed to provide Barto with a reasonably safe place to work by failing to provide him with an appropriate way to reach the spooling drum. McDermott argued that Barto was comparatively negligent because he selected an improper board and failed to secure the board to the spooling machine’s frame. The appellate court acknowledged district court did not specifically explain why Barto was not negligent, even though he selected a notched board and failed to secure it. But the court generally explained its decision not to impose any comparative fault, noting that Barto “was the low man on the totem pole. He was the least experienced. He had never performed this work before.” Therefore, the appellate court found that the district court did not clearly err by finding that McDermott failed to prove Barto’s comparative negligence, given his relative inexperience. The appellate court held that McDermott had failed to advance a suitable comparator for Barto’s future general damages award, so the maximum recovery rule did not come into play, upholding the district court’s award of future general damages. McDermott’s final argument was that the district court erred by calculating Barto’s lost wages according to an above-average work-life expectancy. The appellate court observed that Barto’s economist did not provide any reason to believe that Barto would continue to work past his statistical work-life expectancy. Moreover, even if the district court believed that Barto wanted to work until age 67, wanting to work until age 67 is not the only or even the most significant factor in determining whether someone actually will work until age 67. Therefore, the appellate court found that Barto did not successfully rebut the presumption that the average work-life expectancy should apply. The appellate court granted McDermott’s request to render judgment, reducing the future lost wages award from $300,000 to $209,533, declining to remand to give Barto a second chance to prove future lost wages. Shore’s sole argument on appeal was that Barto did not prove that the lumbar surgery was intended to improve his physical condition, so the surgery’s cost was not available as cure. The appellate court held that the district court did not clearly err by requiring Shore to pay for the surgery as cure, particularly given that any doubts about cure are to be resolved in favor of the seaman. As to the award of future lost wages, the appellate court reversed and rendered judgment that Barto was entitled to $209,533.00 for future lost wages against McDermott. In all other respects, the district court’s judgment was affirmed [see October 2015 Longshore Update]. Shore Construction moved for relief from judgment and for entry of final satisfaction of judgment, offering two avenues for relief: (1) the judgment has been satisfied or (2) applying the judgment prospectively is no longer equitable. Shore's underlying theory for relief under both avenues was that the court's judgment concerned only Barto’s lumbar injuries, which had reached maximum medical improvement. Barto opposed the motion, conceding that while he had reached MMI with respect to his lumbar injuries, the court's judgment regarding maintenance and cure regarded also applied to his cervical injuries. The court agreed, finding Barto’s interpretation of the judgment to be correct. Shore's obligation persists only until Barto’s injuries resulting from the accident can improve no further; that obligation is the same whether the injury is to the lumbar or cervical regions of Barto’s spine. Shore’s motion was denied. (USDC EDLA, December 11, 2018) 2018 U.S. Dist. LEXIS 208319
MCCORPEN DEFENSE & REFUSAL TO FUND SURGERY WAS REASONABLE
ALLIANCE MARINE SERVICES, LP V. YOUMAN
Gary Youman was hired several days after applying for employment with Alliance Marine Services, LP (AMS). Youman was employed by AMS as a Jones Act seaman aboard a vessel owned and operated by SBM Stones Operations, LLC. In his employment application, Youman denied having any physical handicap or illness that may affect his work. As part of the hiring process, AMS sent Youman for a pre-employment physical. In completing a medical history form as part of this examination, Youman denied any history of back injuries or back pain. Youman later filed a lawsuit, alleging that he injured his lower back during a rescue drill operation. Youman was diagnosed with a lumbar sprain. Youman later underwent an L4-5 anterior lumbar discectomy and artificial disc replacement. Prior to the surgery, Youman's attorney requested authorization from AMS and, following the surgery, he requested reimbursement for the surgery as well as the discogram and post-discogram CT. AMS declined to fund the surgery pending its ongoing investigation of Youman's claim for maintenance and cure. AMS moved for partial summary judgment on its McCorpen defense to Youman’s maintenance and cure claims and punitive damages claims. AMS submitted that it relied upon the medical history form in hiring Youman, who admitted that some of his representations on the medical history form were false. AMS retained a radiologist to review Youman's pre-incident and post-incident MRI images. After reviewing the images, the radiologist opined that there were no changes in Youman's lumbar spine between the pre-incident and post-incident images. AMS submitted that partial summary relief in its favor dismissing Youman’s maintenance and cure claim was appropriate because all three elements of the McCorpendefense were satisfied. The court agreed, finding adequate evidence of concealment, causal link, and materiality. In its second motion for partial summary judgment, AMS submitted that its decision not to approve Youman's discogram procedure and disc replacement surgery was not arbitrary and capricious and, therefore, punitive damages are not recoverable. The court also agreed with this argument, noting that the record showed that AMS conducted an investigation of Youman's claim, as it was entitled to do. The investigation revealed evidence that Youman had pre-existing back problems that he intentionally concealed from AMS. Once suit was filed, AMS continued its investigation into Youman's maintenance and cure claim. It was both the ongoing nature and the result of the investigation, AMS submits, that informed its decision to not fund the surgery performed. On this record, there was no genuine dispute as to whether AMS's conduct in declining to fund Youman's back surgery was arbitrary and in bad faith. It was not. Accordingly, the court ordered that AMS's motions for partial summary judgment were granted. Youman's claims against AMS for maintenance and cure and for punitive damages were dismissed. (USDC EDLA, December 12, 2018) 2018 U.S. Dist. LEXIS 209455
PUNITIVE DAMAGES NOT AVAILABLE FROM NON-EMPLOYER DEFENDANTS
WILTZ V. M I, LLC, ET AL.
Gerald Wiltz allegedly sustained personal injury after he was exposed to hydrogen sulfide aboard Rowan Companies, Inc.’s drill ship. Wiltz filed his seaman's complaint for damages, asserting claims under the Jones Act and general maritime law against M-I LLC, as his Jones Act employer, Rowan, as owner of the vessel, Cobalt International Energy, L.P., as the leaseholder and operator as per BSEE rules and regulations and Halliburton Energy Services, Inc., as a non-employer tortfeasor. Wiltz specifically alleged a claim for punitive damages against the defendants for the arbitrary and/or unreasonable failure to pay maintenance and cure benefits, gross negligence, or unseaworthiness of the vessel. Rowan moved the court to dismiss Wiltz’s request for punitive damages pursuant to FRCP12©, asserting that the Fifth Circuit has specifically ruled that punitive damages are unavailable under the Jones Act or general maritime law and has found that Townsenddoes not extend to non-employers. Wiltz argued that the law is not settled on the issue of whether punitive damages are available to a seaman against non-employer defendants under general maritime law. In reply, Rowan noted that Wiltz’s opposition to its motion asserted the same position and cites the same jurisprudence that Judge Engelhardt previously rejected when he granted the prior motions to dismiss filed by Cobalt and Halliburton. The court pointed out the Fifth Circuit reaffirmed the uniformity principle set forth by the Supreme Court in Miles, and held that neither an injured seaman nor his survivors can recover punitive damages from an employer under general maritime law. Considering this binding precedent, the Court found that Wiltz was precluded from recovering non-pecuniary damages against Rowan under general maritime law. Based on the foregoing, the court found that there were no issues of fact in dispute, and Rowan was entitled to judgment as a matter of law, dismissing Wiltz’s request for punitive damages. Accordingly, Rowan motion was granted and Wiltz’s request for punitive damages against Rowan was dismissed with prejudice. (USDC EDLA, December 3, 2018) 2018 U.S. Dist. LEXIS 204631
DEFENDANT’S SUMMARY JUDGMENT AND IN LIMINE MOTIONS DENIED
RATLIFF V, SEADRILL AMERICAS, INC.
Eddie Ratliff was employed by Seadrill Americas, Inc. as a Jones Act seaman, when he allegedly injured his back while working aboard a Seadrill vessel. Ratliff claimed he was instructed to remove an intake valve seat from a mud pump module, which required him to maintain an awkward body position for an hour to an hour and a half. Ratliff introduced an expert report, which expressed the opinion that Seadrill did not adhere to its internal procedure for changing the mud pump valve and was therefore responsible for Ratliff’s alleged injuries. Seadrill moved in limine to exclude the expert report because it was irrelevant and involves matters easily within the knowledge or experience of lay people. In another ruling, on the same date as this one, the court denied a motion for summary judgment filed by Seadrill and found genuine issues of material fact as to whether Ratliff’s work on the mud pump caused his alleged injury (see Ratliff v. Seadrill Americas, Inc., USDC EDLA, December 12, 2018, 2018 U.S. Dist. LEXIS 209816). The court observed that in its motion, Seadrill presumed Ratliff’s claim was based solely on Seadrill’s requiring him to lift the metal bar. The court found that this premise was incorrect. Ratliff alleged that, before he was told to lift the bar, he was required to maintain an awkward body position for an hour to an hour and a half while attempting to remove an intake valve seat from a mud pump module. The court found that the expert’s testimony about the safety issues tied to changing mud pump valves was relevant and would be helpful to the jury and that such testimony fell outside the scope of lay knowledge. For the foregoing reasons, Seadrill’s motion in limine was denied. (USDC EDLA, December 12, 2018) 2018 U.S. Dist. LEXIS 209815
COURT HOLDS BOAT TRAILER TO BE AN APPURTENANCE OF THE VESSEL (CONT.)
BARNES V. SEA HAWAI`I RAFTING, LLC, ET AL.
Chad Barnes was a seaman who was allegedly injured when the boat on which he was working exploded. During his recovery, Barnes received some monetary assistance from either Sea Hawaii Rafting, LLC (SHR), which owned the vessel, or Kris Henry, SHR's owner and manager, but those payments soon stopped. Seeking the ancient maritime remedy of maintenance and cure, Barnes sued the vessel in rem and SHR and Henry in personam to enforce his seaman's lien against the vessel. I will not recount this case's lengthy procedural history, but [see May 2014 Longshore Update, January 2016 Longshore Update, February 2016 Longshore Update, April 2018 Longshore Update, June 2018 Longshore Update, July 2018 Longshore Updateand October 2018 Longshore Update]. The 9th Circuit found that Barnes had a maritime lien on in rem vessel M/V Tehani on the basis of SHR’s and the Tehani's failure to pay Barnes maintenance and cure. SHR owned the Tehani at the time of the subject injury to Barnes. The Tehani is a 25-foot rigid-hull inflatable boat powered by twin outboard engines. Barnes sought to execute his maritime lien through in remlegal proceedings. The court issued an order authorizing issuance of warrant for maritime arrest of the Tehani, however, the U.S. Marshall Service notified the court that the marshals did not have the ability to take custody of the vessel. So the court issued an amended order authorizing the maritime arrest, on the basis that Barnes had apparently found a suitable substitute custodian willing to take custody of the vessel after its arrest. Barnes's proposed substitute custodian agreed to serve in this capacity only if the Tehani is arrested along with the trailer upon which it had been secured, which would allow the proposed substitute custodian to easily transport the vessel if doing so became necessary in the course of the substitute custodian's duties. Thus, the court was tasked with the need to determine whether the trailer was an appurtenance of the Tehani. At a hearing on the matter, the parties failed to present any cases where courts found that a trailer is appurtenant to a vessel, and the court, through its research, discovered none. Accordingly, it appears that this is a question of first impression. The court proceeded to find that the trailer was part of the vessel's usual equipment; second, the trailer was essential to the operation and mission of the vessel; third, the trailer was a necessary which provides towage by drawing the Tehani to and from the water; and fourth the bankruptcy court both leased and subsequently sold the Tehani together with its trailer. A vessel is defined as the hull and engines, tackle, apparel, and furniture of all kinds and maritime liens also attach to the ship's usual equipment and appurtenances. The court pointed out that Black's Law Dictionary defines the word "appurtenance" as something that belongs or is attached to something else; especially, something that is part of something else that is more important. In the maritime context, the key inquiry into whether something is an appurtenance requires the court to analyze whether the item is essential to the ship's navigation, operation, or mission. The court found that the fact that the Tehani's current trailer was purchased after the accident took place in no way affected its conclusion that the trailer was an appurtenance of the Tehani to which Barnes's maritime lien attached. For the foregoing reasons, the court held that the trailer on which the Tehani is secured is a piece of the Tehani's usual equipment and an appurtenance of the vessel to which Barnes's maritime lien attached. Thus, the trailer was subject to arrest by the United States Marshals on the basis of this court's amended order authorizing maritime arrest. (USDC DHI, December 13, 2018) 2018 U.S. Dist. LEXIS 210638
COURT DENIES SEAMAN’S LATE MOTION FOR A JURY TRIAL
WILLIAMS V. OSG SHIP MANAGEMENT, INC.
DeIsrael Williams filed his Jones Act seaman suit against OSG Ship Management, Inc. on February 5, 2018, as a non-jury case. OSG answered the complaint on February 18, 2018, without a jury demand. Nor did Williams make a jury demand ten days after OSG filed its answer. A scheduling conference was held on March 8, 2018, during which Williams confirmed that no jury demand had been made, and a scheduling order issued establishing pretrial deadlines, including a discovery deadline of July 16, 2018, and setting a bench trial for October 1, 2018. The Court conducted status conferences on April 18, 2018, and July 30, 2018, during which Williams' counsel maintained his intentional choice to proceed without a jury. The parties filed a pretrial order on August 27, 2018, which recited that "THIS IS A NON-JURY CASE." On August 30, 2018, the parties discussed the case at a final pretrial conference, during which Williams' counsel again never mentioned requesting a jury trial. Due to a conflict with the scheduled trial date, the court continued the trial to be rescheduled at a later date. On September 11, 2018, the case was transferred from Section I to Section M of the court. The next day, September 12, 2018, Williams moved for a jury trial. OSG opposed the motion. The court noted that Williams waited until after the close of discovery before filing the subject motion to request a jury. The court considered the full record and evaluated Williams' motion in light of the five factors relevant to Rule 39(b) motions. The Court concluded that Williams' delay was lengthy and unexplained. The court also found that OSG would be prejudiced if the motion were granted. The court found that a jury trial would increase OSG's expense in the case, and would require more of the court's time. Additionally, the court noted that the Jones Act issues in the case could be tried equally well by the court as by a jury. As a result, the court exercised its discretion to deny Williams' motion. (USDC EDLA, December 14, 2018) 2018 U.S. Dist. LEXIS 211605
LOSS OF CONSORTIUM CLAIM NOT BARRED UNDER GENERAL MARITIME LAW
BOND, ET AL. V. CRUISEPORT CURACAO, C.V., ET AL.
This case arose from a slip-and-fall by Monique Bond while she was a passenger on board a cruise ship owned and operated by Cruiseport Curacao C.V., Holland America Line L.V., and Holland America Line, Inc. Bond, along with her spouse Ms. Gringas, boarded the cruise ship for a tour of Australia, New Zealand, and the South Pacific. Bond claimed that she slipped on board, allegedly dislocating and fracturing her knee. Bond and Gringas brought this action against defendants for negligence and loss of consortium. Defendants moved to dismiss Gringas' claim for loss of consortium and to enforce the limitations on liability under the Athens Convention. The court noted that it may not consider materials beyond the pleadings in ruling on a Rule 12(b)(6) motion without converting it into a motion for summary judgment. Under Rule 56, summary judgment is proper if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56©. Defendants contended that general maritime law does not recognize a claim for loss of consortium where a ship passenger is injured. Plaintiffs opposed the motion noting that the cases relied upon by do not preclude recovery for loss of consortium in an unseaworthiness claim. For the same reasons it did so in Barrette v. Jubilee Fisheries, Inc., the court concluded that Milesand Chan have been limited by the Supreme Court's later ruling in Atlantic Sounding Co., Inc. v. Townsend, indicating that Gringas' loss of consortium claim is not barred. Here, as in Barrette, the court found that, because the claim of unseaworthiness and the remedy of loss of consortium both existed in general maritime law long before the Jones Act, the Jones Act did not preclude recovery for loss of consortium in an unseaworthiness action. The court further found that the fact that Bond was a passenger as opposed to a seaman did not undermine, but rather strengthens her claim for recovery, as nowhere does the Jones Act limit a passenger's right to recover non-pecuniary damages. Therefore, the denied defendants' motion to dismiss the loss of consortium claim. Defendants also contended that the Athens Convention was incorporated into the passenger ticket contract issued to plaintiffs, and limited their monetary recovery against defendants to 400,000 Special Drawing Rights. Because this portion of defendants' Rule 12(b)(6) motion required the court to consider materials beyond the pleadings, the court treated it as a motion for partial summary judgment under Rule 56. Because the United States is not a signatory to the Athens Convention, its limitation on liability applies only where it is validly incorporated into a passenger ticket contract. Whether a ticket provides reasonable notice is a question of law. While the defendants maintained that the ticket language placed plaintiffs on notice that the Athens Convention limited their liability, the court disagrees. By its own language, the limitation on liability does not apply to the vessel where the alleged injury occurred. Therefore, the court denied defendants' motion to enforce the Athens Convention, and finds that its limitations on liability did not apply as a matter of law. (USDC WDWA, December 4, 2018) 2018 U.S. Dist. LEXIS 206276
Quotes of the Month . . .“Life is what happens when you’re busy making other plans.”-- John Lennon
“Dost thou love life? Then do not squander time, for that is the stuff life is made of.”-- Benjamin Franklin
“In the end, it’s not the years in your life that count. It’s the life in your years.”-- Abraham Lincoln
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