February 2019
Notes From Your Updater: On December 21, 2018, a petition for certiorari was filed with the U.S. Supreme Court in the case of Peterson v. NCL (Bahamas) Ltd. , Docket No. 18-832 [see October 2018 Longshore Update]. The question presented is, “Whether spouses of personal injury plaintiffs are entitled to recover loss of consortium damages under general maritime law in light of this Court's holding in American Export Lines v. Alvez, 446 U.S. 274 (1980), answering that question in the affirmative.
On January 11, 2019, the U.S. Supreme Court granted the petition for certiorari filed in the case of Parker Drilling Management Services, Ltd . v. Newton, Docket No. 18-389 [see March 2018 Longshore Update]. The question presented is, “Whether, under OCSLA, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the Fifth Circuit has held, or whenever state law pertains to the subject matter of a lawsuit and is not preempted by inconsistent federal law, as the Ninth Circuit has held.”
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires the Department of Labor to annually adjust its civil money penalty levels for inflation by publishing a final rule in the Federal Register. This rule will make small upward adjustments to the penalties assessed by the Office of Workers’ Compensation Programs. Although the statutory deadline for publication of the new rule is January 15, the Office of the Federal Register is affected by a lapse in appropriations funding. Thus, publication of the rule has been delayed. The rule will not go into effect until it is published in the Federal Register. The pre-published rule is available for informational purposes only here. The final rule was subsequently published in the Federal Resister on January 23, 2019 at 84 FR 213.
The Congressional Research Service issued a reportconcerning the Longshore and Harbor Workers’ Compensation Act (LHWCA) with an overview of workers’ compensation for certain private-sector maritime workers.
NO MORE CONCURRENT JURISDICTION BETWEEN LHWCA AND STATE REMEDIES
DIVINCENTI ET AL. V. HARMON ET AL.
Glen Divincenti and Lloyd Green brought this suit against their former employer, United Bulk Terminals Davant, LLC, and their former supervisor, Eric Harmon, for emotional distress they allegedly experienced after they were terminated. Plaintiffs allege that they were fired when they refused Harmon's orders to perform a crane maneuver that they felt was dangerous. Shortly after their termination, an accident occurred while crews were performing the same task in which plaintiffs had refused to participate. Plaintiffs alleged that they had experienced emotional distress since their terminations and the accident, including flashbacks, nightmares, insomnia, and irritability. United Bulk Terminals Davant, LLC and Harmon (defendants) moved for the dismissal of, or alternatively summary judgment on, plaintiff's claims arguing that the Longshore and Harbor Workers' Compensation Act is their exclusive remedy and they cannot, on the facts pled, succeed on a claim for intentional infliction of emotional distress. Plaintiffs opposed the motion, arguing that concurrent jurisdiction exists between the LHWCA and state statutory compensation schemes, creating a "twilight zone" between state and federal compensation schemes that allows them to bring this suit under the intentional tort exception to the Louisiana Workers' Compensation Act. Plaintiffs relied on the Supreme Court's decision in Sun Ship, Inc. v. Pennsylvania, decided in 1980, which held that the availability of a remedy under the LHWCA did not preclude concurrent state coverage. However, as the court pointed out, in 1989 the Louisiana legislature passed Act Number 454, creating Louisiana Revised Statutes § 23:1035.2, which effectively eliminated the workers' choice of federal or state compensation, as had been set forth in Sun Ship. Section 23:1035.2 now divests plaintiffs of the concurrent state and federal remedies. Accordingly, plaintiffs argument that they should be allowed to bring a state law claim against their former employer because of the concurrent jurisdiction between state and federal compensation schemes fails. Defendants’ motion was granted and the case was dismissed with prejudice. (USDC EDLA, January 9, 2019) 2019 U.S. Dist. LEXIS 4730
LONGSHOREMAN OFFERED NO PROOF OF BREACH OF SCINDIA DUTIES
TROUTMAN V. SEABOARD ATLANTIC LTD., ET AL.
Anthony Troutman, was a longshoreman and had been employed in that capacity for nineteen years, when he allegedly suffered injuries when he fell six to eight feet from one deck of a cargo vessel to another while he was securing cargo containers. Seaboard Atlantic Ltd. and Seaboard Marine Ltd. Inc., were the owner and charter respectively of the vessel involved in the incident. Troutman was employed by a non-party stevedoring company, Eller ITO, to secure containers loaded onto the vessel. Troutman had worked on the vessel on more than twenty prior occasions. He climbed an elevated walkway to secure cargo onto an upper deck. The walkway had no fence on its edge, and Troutman was aware that if he lost his balance on the walkway, there was nothing to stop him falling six to eight feet to the deck below. Troutman did lose his balance, and he fell to the deck below. The superintendent of the stevedoring company decided to load the upper deck first, as the containers for the lower deck were not ready to be loaded. Troutman filed a §905(b) action, alleging that defendants breached their duty to turn over a safe vessel to the stevedore company, their duty to intervene, and duty to exercise ordinary care to keep the vessel in reasonably safe condition. With respect to the alleged duty to intervene, Troutman failed to address it in his opposition or otherwise respond to defendants’ arguments about it. Accordingly, summary judgment was deemed appropriate on count II and count III to the extent that count III duplicated count II. Defendants argued that the evidence did not support a finding that the turnover duty was breached. They argued that the risk of falling from the walkway was open and obvious, that the danger was easily avoided, and that the duty to avoid that danger was the stevedore's. Troutman responded that the defendants had a duty to secure the edge of the walkway with a safety railing, but failed to point to any case law in support of that specific obligation. The undisputed evidence showed that defendants were correct, and turned over the vessel to the stevedore in such a condition that it could unload the vessel with reasonable safety. Critically, the only reason the walkway was unsafe was because the stevedore, exercising its exclusive judgment, decided to load the upper deck before the lower deck. Had the stevedore loaded the lower deck first, as was typical, the walkway would not have been exposed; the containers would have risen above the ledge and prevented Troutman from falling. Accordingly, the court concluded that defendants did not breach the first obligation within the turnover duty. Neither did they breach the second. The undisputed facts show that the hazard posed by the exposed walkway was open and obvious to the stevedore and thus defendants had no duty to warn. Because Troutman could not show that defendants breached any duty owed to him, summary judgment was appropriate in defendants' favor and the court granted their motion to dismiss. (USDC SDFL, January 8, 2019) 2019 U.S. Dist. LEXIS 4132
QUESTIONS OF FACT PRECLUDE SUMMARY JUDGMENT IN §905(B) CASE
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 vessel owned by Diamond Star Shipping, PTE, LTD. At the time of Johnson’s alleged injury, he was employed by Dockside Linemen, Inc., a subcontractor of Cargill, Inc. Johnson alleged Cargill was negligent in failing to ensure its grain elevator operations did not cause a spillage of grain onto the deck of the vessel, allowing accumulation of grain on the deck of the vessel such that it created an unreasonable risk of harm, failing to properly train and supervise its employees to prevent the type of spillage that led to Johnson’s accident and injuries, and failing to warn Johnson and others of the dangerous condition. Cargill moved for summary judgment, arguing that, since the court had previously found the grain on the deck of the vessel did not create an unreasonably dangerous condition, when considering Diamond Star’s motion, Johnson could not prove that Cargill acted negligently. The court pointed out that Cargill's motion was premised on the court's finding that the spilled grain did not create an unreasonably dangerous condition. However, the court clarified its ruling that the condition was not so hazardous that anyone could tell that its continued use created an unreasonable risk of harm, so as to trigger Diamond Star's duty to intervene. There remained factual disputes with respect to who controlled the walkway where the grain spilled and the amount of the grain spilled. Accordingly, Cargill’s motion for summary judgment was denied. (USDC January 9, 2019) 2019 U.S. Dist. LEXIS 3671
In another ruling in this same case, the court ruled that there remained disputed issues of material fact with respect to who controlled the walkway where the grain spilled and the amount of the spillage. As a result, the court found that Diamond Star was not entitled to judgment as a matter of law that it did not breach the active control duty. Accordingly, Diamond Star's motion for reconsideration was denied with respect to that Scindia duty, (USDC EDLA, January 9, 2019) 2019 U.S. Dist. LEXIS 3676
ANOTHER REMOVAL ACTION BITES THE DUST
DEMPSTER V. LAMORAK INSURANCE CO., ET AL.
Callen Dempster filed suit in state court, alleging that he suffered exposure to asbestos and asbestos-containing products that were designed, manufactured, sold, and/or supplied by a number of companies while Dempster was employed by Avondale Industries, Inc. Several defendants removed the suit from state court under the federal officer removal statute. Dempster moved to remand his case to state court, arguing that remand of his case was proper, as Avondale Interests' removal was untimely and there was no evidence that Dempster was exposed to asbestos on a federal vessel. Additionally, Dempster pointed out that the Fifth Circuit has consistently held that claims do not warrant federal officer removal and Avondale Interests were not acting under the direction of a federal officer. Finally, Dempster pointed out that Avondale Interests had not established a colorable federal contractor defense and their LHWCA defense did not provide an independent basis for removal, and, regardless, the LHWCA supplements state law remedies rather than supplanting them. The court found that removal pursuant to 28 U.S.C. §1442(a)(1) was improper and that defendants had not shown that the necessary causal nexus between Avondale Interests' or Foster's actions under color of federal office and Dempster’s negligence claims existed. In short, Avondale Interests and Foster had failed to identify evidence or any plausible reason to distinguish Dempster’s case from the clear Fifth Circuit holdings in Bartel, Savoie, Legendre, Templet, and Melancon, or the recent conclusions of several district courts that rejected the same arguments put forth by Avondale Interests and Foster. Allowing removal of Dempster’s negligence claims, without proof of exposure aboard a government vessel, would not serve the basic purpose of Section 1442. Because Avondale Interests and Foster had not shown that the necessary causal nexus between their actions under color of federal office and Dempster’s claims existed, the court found that removal pursuant to 28 U.S.C. §1442(a)(1) was improper. Accordingly, the court concluded that Dempster’s case must be remanded for lack of subject matter jurisdiction, and therefore granted the motion to remand. (USDC EDLA, January 7, 2019) 2019 U.S. Dist. LEXIS 2118
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #292. 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."
And on the Admiralty front . . .
TEXAS SUPREME COURT RULES POLICY DOES NOT LIMIT RECOVERY BY INSURED
ANADARKO PETROLEUM CORP. ET AL. V. HOUSTON CASUALTY COMPANY, ET AL.
In yet another piece of litigation arising out of the Deepwater Horizon incident, this case involved insurance covering minority-interest owners, Anadarko Petroleum Corporation and Anadarko E&P Company, L.P. (collectively, Anadarko). The parties had resolved most of their disagreements and were focused solely on coverage for the legal fees and related expenses Anadarko incurred defending against liability and enforcement claims. Anadarko argued that the policy covered all of its defense expenses, up to the policy's $150 million excess-coverage limit. The policy's underwriters contended that a negotiated policy provision capped the excess coverage-including coverage for defense costs-at twenty-five percent of that limit. The trial court agreed with Anadarko, but the court of appeals agreed with underwriters. Based on the product of Anadarko’s percentage interest in the Deepwater Horizon joint venture (25%) and the total coverage limit ($150 million), the underwriters argued that the liability for fees was capped at their excess-coverage limit of $37.5 million, which they had already paid to Anadarko. The Texas Supreme Court disagreed, noting that Ultimate Net Loss included damage sustained by third parties and defense costs. The Texas Supreme Court ruled that excess underwriters had to pay the total coverage limitation of $150 million and not 25% of that limit ($37.5 million) in connection with the attorneys’ fees incurred by Anadarko in the Deepwater Horizon incident, concluding that the provision cited by underwriters did not limit the excess coverage for defense expenses. The appellate court held that the Joint Venture Provision of the policy did not limit the underwriters' liability for Anadarko's defense expenses insured. The appellate court reversed the court of appeals' judgment, rendered judgment granting Anadarko's motion for partial summary judgment, and remanded the case to the trial court for further proceedings consistent with its opinion. (Tex. Sup. Ct., January 25, 2019) 2019 Tex. LEXIS 53
Update Note : Thanks to Ken Engerrand, of Brown Sims, Houston, TX, for sharing this opinion with me.
MAINTENANCE & CURE DAMNED IF YOU DO DAMNED IF YOU DON’T
IN RE 4-K MARINE, LLC
This is a maritime case involving an allision. A tug owned and operated by Enterprise Marine Services, LLC, was pushing a flotilla of barges, when its lead barge made contact with a tug that along with its barges, which were essentially stationary. That tug was owned by 4-K Marine and operated by Central Boat Rentals, Inc. ("CBR"). On board the 4-K tug were the wheelman Prince McKinley and a deck hand named Justin Price. Both alleged they were injured in the allision. CBR and 4-K Marine jointly filed a petition under the Shipowner's Limitation of Liability Act. The issue was before the court was whether the owner of the stationary, "innocent" vessel must be reimbursed for the medical expenses of an employee who fraudulently claimed his preexisting injuries had resulted from the allision. Only one of the claims was at issue in this appeal, namely, CBR's counter-claim that Enterprise Marine reimburse it for amounts it paid to McKinley for medical expenses under its obligations as his Jones Act employer. CBR paid, and Enterprise Marine reimbursed, $23,485 in maintenance and $5,345.84 in cure to McKinley. CBR also agreed with a surgeon and a hospital to pay for a back surgery on behalf of McKinley, but Enterprise Marine refused to reimburse those expenses on the basis that McKinley's back condition was not the result of the allision. After a bench trial, the district court found that McKinley's back problems predated the accident and were unaffected by the allision. The court also found that McKinley fraudulently withheld material issues about pre-existing medical conditions and medications both before and after the incident." Based on these findings, the district court held that CBR had no obligation to pay for McKinley's back surgery, and Enterprise Marine had no obligation to reimburse CBR. Enterprise Marine sought the return of the amounts it had already reimbursed for maintenance and cure that were not related to McKinley's knee problem. The district court refused to grant that relief on the grounds that each party was a sophisticated maritime company, knowledgeable about its obligations and its defenses. Enterprise Marine's failure to make a reasonable investigation earlier in the process meant it would not now be allowed to recoup unnecessary reimbursements to CBR. CBR timely appealed, and there was no cross-appeal. CBR argued that maritime principles as well as a contract between the parties compelled Enterprise Marine to reimburse McKinley's back surgery regardless of the employee's fraud. Enterprise Marine withheld reimbursement of the costs of McKinley's back surgery after reviewing his medical history and concluding his injury was not caused by the allision. The district court found the allision did not cause or aggravate McKinley's back injury. CBR did not dispute this. A third-party must reimburse only where its negligence caused or contributed to the need for maintenance and cure. Because McKinley's back condition did not result from the allision, Enterprise Marine did nothing that caused or contributed to a need for maintenance and cure for that particular medical problem. The appellate court therefore held it did not owe reimbursement to CBR for McKinley's back surgery. The appellate court’s holding does not, as CBR asserts, compromise the law's concern for injured seamen nor does it place a burden on an innocent employer to conduct an investigation and possibly assert a defense as a condition to later receiving reimbursement from a third party. The seaman's right to maintenance and cure is balanced with his employer's interests by allowing the employer to investigate and reasonably withhold payment. There is no reason the balance should be different when the mechanisms of maintenance and cure make a third-party tortfeasor the ultimate entity responsible for any required payment. Indeed, in those circumstances these rules arguably are all the more justified. CBR also argued that it was entitled to be reimbursed because of an agreement between the parties. Even though that the agreement contained no "limitations" about payments, The appellate court saw no concession at that time by Enterprise Marine that it would make these payments even if it were later determined that the medical expenses were unrelated to injuries arising from the allision. The district court gave short shrift to the agreement, which is indicative of a finding that the agreement simply did not cover a situation in which it later became clear that the seaman's claims were fraudulent. The appellate court found no error and affirmed the district court’s judgment. (5th Cir, January 30, 2019) 2019 U.S. App. LEXIS 3095
PLAINTIFF FAIL TO MEET TEST FOR SEAMAN STATUS
LEE V. NACHER CORPORATION, ET AL.
Tom Lee alleged that he was injured while working on an oil rig. Lee filed suit against Nacher, which was his employer, and against McMoRan Exploration, LLC, McMoRan Exploration Co., and Freeport-McMoRan Exploration and Production, LLC, which he alleged owned the structure. Lee claimed he was a seaman working on a vessel and asserted causes of action for negligence and negligence per se under the Jones Act, maintenance and cure, lost wages, and unseaworthiness. Nacher filed a motion for summary judgment, arguing there were no material facts in dispute, and Lee was not a Jones Act seaman as a matter of law because he spent less than 30% of his time working for Nacher on a vessel or an identifiable fleet of vessels. Lee opposed the motion, contending he spent more than 30% of his time working for Nacher on a vessel. There was no genuine issue of material fact that the platform on which Lee was working was a stationary platform. Fixed off-shore platforms are not vessels. While Lee disputed this fact, the court took judicial notice of affirmative evidence the platforms located in High Island Blocks 531-A and 474 were fixed, stationary platforms, not vessels. Therefore, the court found there was no genuine issue of material fact that the platform in question was a stationary platforms and not a vessel for purposes of determining Lee's status as a seaman. Because Lee spent less than 30% of his employment with Nacher in the service of a vessel, he did not qualify as a Jones Act seaman. In summary, it was undisputed Lee spent a total of 264 hours, or 68% of his 387-hour total employment with Nacher, working either on land or on a stationary platform. It was also undisputed he spent 87 hours, or 22% of his total employment with Nacher, working on a vessel. Time that platform workers spend on transport vessels going to and from a stationary platform is not considered time spent in service of a vessel for purposes of seaman status. As a result, Lee could not show he spent 30% of his total employment with Nacher working on a vessel for purposes of establishing seaman status. Because Lee spent less than thirty percent of his time in the service of a vessel, the facts and the law will reasonably support only one conclusion; that Lee was not a Jones Act seaman. The court held that Nacher was entitled to judgment as a matter of law on all of Lee’s claims against it and granted Nacher’s motion for summary judgment. Nacher’s motion for summary judgment as to its McCorpendefense and medical causation was denied as moot. (USDC EDLA, January 24, 2019) 2019 U.S. Dist. LEXIS 11228
In a separate ruling in the same case, the court took up the motion for summary judgment, filed by Freeport-McMoRan Exploration & Production LLC, McMoRan Exploration Company, and McMoRan Exploration LLC. The McMoRan defendants argued they could not be liable because they did not employ Lee, and they do not own the platform on which Lee was allegedly injured. Lee opposed the motion, arguing he worked for one of the McMoRan defendants and the McMoRan defendants exercised control over the platform on which Lee was allegedly injured. The court found there was no genuine issue of material fact that the McMoRan Defendants did not own the platform on which Lee The court also found that there was no genuine issue of material fact the McMoRan defendants did not employ Lee at the time of the alleged accident. It is undisputed that, on the date of the alleged accident, Lee was employed by Nacher. Therefore, the court concluded that Lee had not met his burden of showing a genuine issue of fact existed as to the identity of his employer and held that the McMoRan defendants were entitled to judgment as a matter of law on all of Lee’s claims against them. (USDC EDLA, January 24, 2019) 2019 U.S. Dist. LEXIS 11233
EIGHT DOLLAR MAINTENANCE RATE FOUND TO BE UNREASONABLE
KNUDSON V. M/V AMERICAN SPIRIT, ET AL.
This matter arose out of personal injuries allegedly sustained by Jeffrey Knudson in the service of his employer, Liberty Steamship Company, while serving aboard a Great Lakes freighter owned by American Steamship Company. Knudson was accidentally dropped 30 feet in a lowering chair from the deck to the paved surface of a pier. Knudson was hired by Liberty as a permanent replacement worker after Liberty's negotiations with the union representing Liberty's unlicensed seamen failed to reach a collective bargaining agreement. Knudson was not a member of any union. The terms of Knudson's employment were contained in a document entitled "ASC American Steamship Company Liberty Steamship Company Implemented Terms and Conditions of Employment." In accepting the employment offer, Knudson acknowledged that Liberty explained the Terms & Conditions of Employment, that he understood such terms, and that he accepted the offer of employment. The employment agreement required that maintenance and cure, when payable under maritime law, shall be paid, at the rate of eight dollars ($8.00) per day, upon application by the employee and submission of medical evidence of disability. By comparison, the section of the employment agreement addressing "Allowances and Subsistence", provided that uninjured employees who were not provided with room and board on the vessel where they are working would be paid $77.25 per day. After the incident, American paid Knudson at the rate of $8 per day. When Mr. Knudson complained that $8 was not enough to live on, defendants offered him a Claims Arbitration Agreement whereby defendants would increase his maintenance payment by $88.59 per day as an advance on an eventual settlement if Knudson relinquished his right to a jury trial. Knudson refused to sign the CAA. Knudson supplied defendants with proof of his shared living expenses and demanded a maintenance rate of $45 per day. American agreed to pay $45 per day, retroactive to the date of the incident. Knudson moved for partial summary judgment regarding enforceability of the contractual maintenance rate of $8 per day. The court heard oral argument on plaintiff's motion. At oral argument Knudson’s counsel agreed that once his maintenance payment was increased to $45 a day, he was no longer entitled to seek punitive damages based on the payment of unreasonable maintenance under general maritime law. Therefore, the potential availability of punitive damages was limited to the two-year period beginning immediately following plaintiff's accident and ending when defendants began paying plaintiff $45 a day. Knudson’s motion for partial summary judgment regarding enforceability of the contractual maintenance rate was granted. (USDC EDMI, January 17,2019) 2019 U.S. Dist. LEXIS 8329
UNSEAWORTHY FOR PROVIDING THE WRONG TOOL???
LOMAX V. MARQUETTE TRANSPORTATION
Marcus Lomax alleged he was injured while working aboard a vessel for his employer Marquette Transportation. He was allegedly struck in the face by a grinder while buffing the underside of an overhead deck. He bought claims against Marquette for Jones Act negligence, unseaworthiness, and maintenance and cure. Following a bench trial, the court found that Marquette was negligent in providing Lomax with a large angle grinder to perform overhead work and for failing to provide him with a smaller grinder for the job task. However, Lomax was also negligent in failing to use stop work authority or seek more appropriate equipment that was available on the vessel to complete the task. The court apportioned fault as 75% to Marquette and 25% to Lomax. The court also found the vessel to be unseaworthy for essentially the same reasons, finding Marquette failed to provide Lomax with equipment reasonably fit for its intended purpose of grinding rust spots located above the head, apportioning fault at 75% and 25% respectively. The court found that Marquette had satisfied its maintenance and cure obligation. Finding that Lomax was entitled to judgment on his claims for Jones Act negligence, unseaworthiness against Marquette, the court awarded damages as follows: past loss of earnings $138,835.50, loss of future earning capacity $318,106.64, future medical expenses $65,250, general damages $112,500. The total damage award was $634,692.14. (USDC EDLA, January 3, 2018) 2019 U.S. Dist. LEXIS 941
FLORIDA COURTS CONTINUE TO ENFORCE ARBITRATION AGREEMENTS
CARPIO V. NCL (BAHAMAS) LTD., ET AL.
Jelen Carpio , a Filipino citizen, brought an action on behalf of herself and as personal representative of the estate of her deceased husband, Diogenes Carpio, Jr. Decedent was a crewmember aboard NCL (Bahamas), Ltd.'s vessel. At that time, he was assigned to conduct and assist lifeboat drills. During one such drill, decedent was boarding a lifeboat on when it detached from the vessel causing decedent to fall approximately six stories into the water where he drowned. The terms of decedent's employment with NCL were governed by his Employment Agreement and a Collective Bargaining Agreement. Each of these agreements required that all claims brought by, or on behalf of, the decedent against NCL be submitted to binding arbitration in the Philippines. Carpio initiated arbitration proceedings in the Philippines, however, before a decision was rendered by an arbitrator, the parties agreed to settle the case. Pursuant to the Settlement Agreement, NCL compensated Carpio $130,000. In return, Carpio signed a release absolving NCL of all claims related to decedent's death and agreed to arbitrate any dispute regarding the settlement in the Philippines. The Settlement Agreement was approved by a Labor Arbitrator. Carpio alleged that she had no legal counsel when she signed the Settlement Agreement and that NCL's agent in the Philippines misrepresented Carpio’s rights to her. NCL moved to compel binding arbitration in the Philippines. In response, Carpio asserted that the Settlement Agreement was a final judgment of the arbitrator and should be vacated as a matter of public policy. The court declined to do so. It was clear from the parties' briefs that the parties did not complete arbitration as they settled at the outset of the process. The Labor Arbitrator's stamp of approval of the settlement is not a final judgment, rather, it is simply a settlement approval. The agreement and release did not contain any findings by the Labor Arbitrator such that the court could analyze whether the arbitrator properly addressed the merits of Carpio’s claims. Because the court found that arbitration had not yet occurred, the public policy exception did not apply and the case was properly dismissed. NCL’s motion to dismiss and compel arbitration was granted. (USDC SDFL, January 9, 2019) 2019 U.S. Dist. LEXIS 3972
ANOTHER REMOVAL ACTION BITES THE DUST
REILLY V. TOTAL E&P USA, INC., ET AL.
This case involved the death of Jeffrey Reilly, a former crew member aboard a vessel allegedly owned by Total E&P USA, Inc. and Technip USA, Inc. Susan Reilly, his surviving spouse alleged that Reilly sustained a serious health event while aboard defendants' vessel and subsequently passed away. Based on the foregoing, Reilly filed a lawsuit, individually and on behalf of the estate of Reilly, against defendants under the Jones Act, and general maritime law for negligence and negligence per se in state court. Defendants removed the case to federal court, contending Reilly fraudulently pleaded a Jones Act claim. Reilly then moved to remand the case back to state court, contending the court did not have subject matter jurisdiction. Reilly also contends remand is proper because defendants did not meet their burden of showing Reilly fraudulently pleaded a Jones Act claim and cases brought pursuant to the Jones Act cannot be removed to federal court. The court found that Reilly filed the case in Texas state court and brought general maritime law claims pursuant to the Savings to Suitors Clause. It was undisputed the parties were not diverse and there were no other claims asserted to give rise to federal question jurisdiction. The court therefore found it does not have an independent basis to exercise subject matter jurisdiction in this case. Thus, the court found it did not have subject matter jurisdiction. Accordingly, Reilly's motion to remand was granted. (USDC SDTX, December 20, 2019) 2018 U.S. Dist. LEXIS 218076
PRIVATE AND PUBLIC FACTORS WEIGHED IN FAVOR OF TRANSFER
ENGLE VERSUS J&S CONTRACTING, LLC, ET AL.
This personal injury suit arose out of Charles Engle's alleged fall on Kirby Inland Marine, L.P.'s tug. Engle was working for J&S Contractors, Inc. and moving from a barge operated by J&S to the Kirby tug, when he lost his balance atop the tug's bulwarks and fell about three feet onto a steel bit. The fall allegedly caused rib fractures, spleen injuries, internal bleeding, a collapsed lung, and other unspecified injuries. Engle filed this maritime suit against J&S and Kirby as a Jones Act seaman seeking general and special damages, maintenance and cure, and punitive damages. J&S and Kirby moved to dismiss or alternatively to transfer venue to the Southern District of Texas. Engle opposed the motions. The court began by noting that, in the Fifth Circuit, it must consider eight factors when deciding whether good cause exists to transfer a case to a different venue on convenience grounds. The application of the four private factors weighed heavily in favor of transferring the case to the Southern District of Texas. Because virtually all known sources of proof were in the Southern District of Texas and there was no reason to believe any significant portion of these sources were in the Eastern District of Louisiana, the relative ease of access factor weighs heavily in favor of transferring this suit. The Southern District of Texas likely would possess subpoena power over all key people in the suit. The cost of attendance for willing witnesses likely would be significantly higher if the suit proceeded in the Eastern District of Louisiana instead of being transferred to the Southern District of Texas. All material evidence and people were in the Southern District of Texas. It would be more cost efficient, more expeditious, and easier to try the case there. The court further found that the four public factors also supported transfer. Taken together the private and public factors both weighed in favor of transfer, rendering the Southern District of Texas the clearly more convenient venue for the suit. The defendants' alternative motion for transfer of venue was granted. Defendants' motions to dismiss on improper venue and personal jurisdiction grounds was denied as moot. (USDC EDLA, January 11, 2019) 2019 U.S. Dist. LEXIS 5198
CASE DISMISSED FOR LACK OF PERSONAL JURISDICTION
THORNTON V. FLORIDA MARINE TRANSPORTERS, LLC
Montrey Thornton brought an action to recover for injuries he allegedly sustained in two separate incidents while working as a deckhand and crewmember aboard a vessel owned by his employer Florida Marine Transporters, LLC. Thornton alleged that he injured his back while handing down a crossover hose on a barge, and again while building a tow in the Lewis & Clark Fleet. He brought Jones Act negligence, unseaworthiness, and maintenance and cure claims against Florida Marine in connection with both incidents. In his initial complaint, Thornton 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. Thornton amended his complaint when discovery revealed that the person who did not pull his weight was an employee of the Lewis & Clark fleet - not a Florida Marine co-worker - and added SCF Lewis & Clark Fleet, LLC and SCF Lewis & Clark Terminals, LLC as defendants. The Lewis and Clark defendants, citizens of Delaware and Missouri, moved to dismiss Thornton's claims against them for lack of personal jurisdiction. The motion was unopposed. The court found that Thornton had failed to establish a prima facie case that the Lewis and Clark defendants had engaged in continuous and systematic activities in Louisiana that would support the exercise of general jurisdiction over them. Likewise, Thornton had not established a prima facie case of specific jurisdiction over the Lewis and Clark defendants. Thornton’s case arose out of an alleged incident in St. Louis, Missouri. Thornton has not alleged that the Lewis and Clark defendants have purposefully availed themselves of the privileges of conducting business in Louisiana or that his cause of action relates to the Lewis and Clark defendants' Louisiana contacts. For these reasons, the Lewis and Clark defendants' unopposed motion to dismiss was granted. (USDC EDLA, January 24, 2019) 2019 U.S. Dist. LEXIS 12002
Quotes of the Month . . . "I never did anything worth doing by accident, nor did any of my inventions come indirectly through accident, except the phonograph. No, when I have fully decided that a result is worth getting, I go about it, and make trial after trial, until it comes." -- Thomas Edison
"The only place where success comes before work is in the dictionary." -- Vidal Sassoon
"Keep on going, and the chances are that you will stumble on something, perhaps when you are least expecting it. I never heard of anyone ever stumbling on something sitting down." -- Charles F. Kettering
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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