April 2019
Notes From Your Updater:
An attempted legislative change, to do away with concurrent jurisdiction in South Carolina, has failed yet again. However, the silver lining to that cloud, which continues to hang over the Longshore industry in that state, is the negotiators did end up with a bill that appears on its way to passing, that will codify a dollar-for-dollar credit for all benefits paid under the LHWCA if/when a claimant attempts to double dip and pursue a South Carolina state claim. The bill is S642. My sincere thanks to Brian McElreath, of Lueder, Larkin & Hunter, PC, Mt. Pleasant, SC, for bringing this information to my attention.
On March 7, 2019, Senator Lee (R-UT) introduced Senate Bill S. 694, to repeal the Jones Act restrictions on coastwise trade, and for other purposes. Senator Lee also issued a press release explaining the measure.
On March 12,2019, Representative Crist (D-FL) introduced the Fairness in Federal Drug Testing Under State Laws Act (H.R. 1687) to amend title 5, United States Code, to remove limitations on Federal employment for an individual legally using marijuana under the law of the State in which the individual resides, and for other purposes.
NO SUCCESSFUL PROSECUTION; NO ATTORNEY FEES DUE
PEÑA-GARCIA V. DIRECTOR, OWCP, ET AL. [CALZADILLA CONSTRUCTION CORP.]
This case raised the question of what is a "successful prosecution" in a claim for benefits under the Longshore and Harbor Workers' Compensation Act, so as to warrant an award of attorney's fees to a claimant. After suffering an alleged back injury, while working for Calzadilla Construction Corporation, Luis Peña-Garcia sought coverage for spinal surgery. Calzadilla's insurer, IMS Insurance Company of Puerto Rico, said it would pay for such surgery in Puerto Rico, where Peña's surgeon was willing and able to perform it. Peña rejected that and said the surgery must be at Beth Israel Spine Institute in New York. Peña then filed a claim for medical compensation for surgery in New York against Calzadilla and IMS under the LHWCA. An ALJ determined that Calzadilla and IMS had never refused to pay for the surgery and rejected Peña's claim that it was necessary to perform his surgery in New York. Consequently, the ALJ later held that Peña was not entitled to attorney's fees and costs. Peña filed a petition for reconsideration on the issue of attorney's fees and costs, which was also denied. The Benefits Review Board affirmed the denial of attorney's fees and costs. The BRB also denied a motion for reconsideration filed by Peña. Peña then petitioned the circuit court for review of the Board's decision. The appellate court found that the Board's decision was both correct and supported by substantial evidence. Peña argued that under subsection (a) that he obtained a "successful prosecution" because Calzadilla and IMS raised a complete challenge to his request for treatment in New York. The appellate court rejected this argument, noting that subsection (a) is triggered only when the employer or insurance carrier denies liability and refuses to pay the claimant "any compensation." In fact, IMS was paying Peña some compensation in the form of medical benefits before the claim was initiated, calling into question whether subsection (a) applied at all. But the appellate court bypassed that question to address the surgery compensation issue. The employer's actions did not amount to a refusal to pay "any compensation." Peña's argument under subsection (b) also failed, doomed by this court's decision in Barker v. U.S. Dep't of Labor, 138 F.3d 431 (1st Cir. 1998). The appellate court held that the petition for review was without merit and denied the petition. (1st Cir, March 1, 2019) 2019 U.S. App. LEXIS 6368
NINTH CIRCUIT ADOPTS EXCUSABLE NEGLECT AS THE PROPER STANDARD
IOPA V. SALTCHUK-YOUNG BROTHERS, LIMITED, ET AL.
Following Warren Iopa's successful litigation of claims for temporary disability benefits under the Longshore Act, the ALJ held that he was entitled to reasonable attorney's fees and costs, and that a fee petition had to be filed within 21 days of the award order entered July 31, 2014. On June 8, 2015, Iopa's counsel instead improperly filed a fee petition for work done before the OWCP. At the request of the ALJ's office, counsel filed a corrected petition with the OALJ on October 27, 2015. The ALJ then issued an order striking the first petition due to his lack of authority to award attorney's fees for work done before the OWCP, and striking the second petition based on a finding of untimeliness without excusable neglect. The Benefits Review Board affirmed. Iopa's counsel appealed to the circuit court, arguing that the ALJ did not apply the proper standard in evaluating the circumstances for the untimely fee petition and, alternatively, even if the proper standard was applied, substantial evidence did not support the ALJ's decision to strike fees. Iopa asserted that Longshore Act fee petitions are subject to the relatively lenient standard adopted by the BRB in Paynter v. Director. In an issue of first impression, the appellate court considered for the first time whether striking an untimely petition for attorney's fees under the Longshore Act is proper only given extreme circumstances, or whether excusable neglect is the proper standard by which to evaluate such petitions. The appellate court found that the excusable neglect analysis was the proper standard. The panel affirmed a decision by the Benefits Review Board upholding an administrative law judge's decision striking, as untimely, a petition for payment of a Iona’s attorneys' fees. The panel held that the ALJ properly used the excusable neglect standard in evaluating the circumstances for the untimely fee petition. The panel also held that the ALJ properly applied the four-factor test in Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, in finding that there was no excusable neglect. The ALJ's four-factor Pioneeranalysis and subsequent conclusion that Iopa's counsel did not establish excusable neglect was supported by substantial evidence. The appellate court affirmed the BRB's decision upholding the ALJ's finding of untimeliness absent excusable neglect. (9th Cir, March 4, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 6506
APPELLATE COURT AFFIRMS HOLDING OF NON-VESSEL STATUS
ESTATE OF MEYERS V. WEPFER MARINE OF CALVERT CITY, ET AL.
This case arose from the death of Kevin Meyers, who drowned while working for Calvert City Terminal, LLC, d/b/a Southern Coal Handling Services (CCT). The Estate of Kevin Meyers; Angela Farris, as Special Administrator of the Estate of Kevin Meyers and Ashley and Ashton Meyers, individually, through Holly Meyers as Guardian, appealed from orders of the trial court entering summary judgment in favor of CCT and Wepfer Marine of Calvert City, LLC, on the ground that CCT's dock barge was not a vessel in navigation and that, therefore, Meyers did not qualify as a seaman under the Jones Act. CCT used a dock constructed of three (3) retired barges to load and unload customer barges. The purpose of the dock barge was to facilitate the loading and unloading process because the dock barge floated and would remain at the same level as the customer barges no matter the water level of the river. The dock barge is connected to land-based utilities, which include electricity, internet, telephone, and a conveyor system. The conveyor system, which starts on land is welded to the dock barge. Wepfer and CCT both filed motions for summary judgment. Wepfer explained that the representative of Meyers's estate had filed an action against CCT under the LHWCA and then brought the instant action against CCT and Wepfer alleging negligence under the Jones Act and unseaworthiness under the general maritime law. Wepfer argued that plaintiffs must show that Meyers was a seaman at the time of the accident which they cannot do. In their brief in opposition to Wepfer's motion for summary judgment, the plaintiffs asserted that Meyers was a seaman, that his estate has a cause of action under the Jones Act and General Maritime Law against CCT and under the general maritime law against Wepfer. In its motion for summary judgment, CCT also argued that Meyers was not a seaman and that, therefore, LHWCA provided the exclusive remedy. The trial court granted summary judgment in favor of CCT and Wepfer. The trial court concluded that CCT's dock barge was not a "vessel" in navigation. On appeal, plaintiffs argued because the barges, which comprise the dock were designed for carrying people and/or things over water, then the dock itself would continue to qualify as a vessel. The appellate court pointed out that plaintiffs’ argument ignored important portions of the Lozman opinion, including the holding that satisfaction of a design-based or purpose-related criterion, is not always sufficient for application of the statutory word "vessel." A craft whose physical characteristics and activities objectively evidence a waterborne transportation purpose or function may still be rendered a non-vessel by later physical alterations. Simply put, a watercraft is not "capable of being used" for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. The court explained that the CCT dock barge is permanently moored and is precisely the type of floating platform referenced by the Lozman court that would not qualify as a vessel. The other issue raised in appellants' brief were not timely raised below and, therefore, were properly before the appellate court for review. The appellate court affirmed the trial court’s order granting summary judgment to the appellees. (KY App Ct, March 8, 2019, UNPUBLISHED) 2019 Ky. App. Unpub. LEXIS 137
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 Update, October 2018 Longshore Update, and January 2019 Longshore Update]. In this latest piece of litigation, Barnes moved for an order appointing himself as substitute custodian and providing for custodia legis expenses after arrest of the vessel M/V Tehani. Before the court issued a ruling on Barnes's motion, Aloha Ocean Excursions, LLC moved for an order staying execution of order authorizing arrest of the vessel and appurtenances, or in the Alternative, for an order releasing the vessel and appurtenances from arrest, pursuant to Supplemental Admiralty Rule E(5). AOE sought to file a special bond, pursuant to Supplemental Admiralty Rule E(5)(a), in order to prevent the arrest of the Tehani or to secure the vessel's release once it had been arrested. The parties were not in agreement with respect to the value of the bond that AOE wanted to file, requiring that the court set the value of the bond at the lesser of twice the amount of Barnes’ claims or the value of the vessel. The parties agreed that the commercial use permit, under which the Tehani operated, affected the value of the vessel; however, the parties disagreed as to whether or not the permit was an appurtenance of the vessel to which Barnes's maritime lien attached. At a hearing on the motions, Barnes argued that the commercial use permit was like a fishing permit, and that because some courts have found that fishing permits are appurtenant to vessels, the court should so find that the commercial use permit is appurtenant to the Tehani. Plaintiff Barnes also argued that the commercial use permit was an appurtenance because it was essential to the navigation, operation, and mission of the vessel. AOE argued that the commercial use permit was not appurtenant to the vessel because the permit was issued to AOE (and not to the vessel Tehani) and because such permits do not transfer with a vessel when the vessel is sold. Based upon the plain meaning of the rules the court found that when a vessel is sold or transferred, the commercial use permit under which the vessel is operated cannot be transferred along with the vessel. The commercial use permit at issue was distinguishable from the fishing permits in Gowan, which were able to be transferred when the vessel was sold. Therefore, the court found that the commercial use permit under which the vessel M/V Tehani was operated was not an appurtenance of the vessel. In addition, Barnes' motion for an order appointing himself as substitute custodian and providing for custodia legis expenses after arrest was denied. AOE’s motion for an order staying execution of order authorizing arrest of the vessel and appurtenances, or in the alternative, for an order releasing the vessel and appurtenances from arrest, pursuant to Supplemental Admiralty Rule E(5) was granted in part and denied in part. AOE's motion is granted to the extent that the court allowed AOE to post a bond, pursuant to Supplemental Admiralty Rule E(5)(a), to secure the release of the Tehani. However, the court declined to stay the arrest of the vessel pending AOE's filing of a bond because there was no guarantee that AOE was willing or able to file a bond in the amount that the court determined, because the defendants have enjoyed six years' usage of the Tehani in the interim period without duly paying Barnes maintenance and cure, and to prevent potential exposure to other maritime liens. The court also declined to fix a bond value until a valuation survey of the vessel was accomplished. The court directed the marshal to proceed with the arrest of the vessel as soon as Barnes submitted funds for the necessary expenses and a certificate of insurance. The marshal would serve as custodian of the vessel. Because the marshal would serve as custodian of the vessel while it was under arrest, Barnes's Motion to be appointed substitute custodian was denied. Additional factors also precluded the court from appointing Barnes as substitute custodian. (USDC HI, March 4, 2019) 2019 U.S. Dist. LEXIS 34271
WRONGFUL DEATH CLAIM NOT ALLOWED TO PROCEED UNDER LHWCA
SAVOIE, ET AL. V. HUNTINGTON INGALLS, ET AL.
Joseph B. Savoie, Jr. worked at Avondale Shipyards from approximately 1948 through 1995, and was later diagnosed with mesothelioma. Soon thereafter he filed this action against the Avondale Interests and other defendants, claiming his work at Avondale Shipyards exposed him to asbestos fibers that eventually caused him to develop mesothelioma. Savoie passed away, and his survivors were substituted as plaintiffs, amending their petition to assert both survival and wrongful death claims. Avondale moved to dismiss plaintiffs' wrongful death claims against the Avondale Interests, but not the survival claim, arguing that Savoie's work for Avondale constituted ship repair and shipbuilding under the LHWCA. Plaintiffs did not dispute that Savoie met the LHWCA's situs and status elements. Accordingly, the court found that for purposes of plaintiffs' wrongful death claims, Savoie was covered by the LHWCA. Having established LHWCA coverage, Avondale further argued that §§905(a) and 933(I) of the LHWCA immunized them against plaintiffs' wrongful death tort claims. Plaintiffs countered that they assert intentional torts, which the LHWCA does not preclude. The court rejected this argument, noting that even if there is an exception to LHWCA immunity for intentional torts, that exception would not apply to plaintiffs' wrongful death claims. Because plaintiffs' wrongful death claims against the Avondale Interests are barred by the LHWCA, the court granted the motion and dismissed with prejudice plaintiffs' wrongful death claims. (USDC EDLA, March 26, 2019) 2019 U.S. Dist. LEXIS 50289
QUESTIONS OF FACT WITH RESPECT TO SCINDIA DUTIES
YBARRA V. INTERNATIONAL SHIPHOLDING CORP., ET AL.
International Shipholding Corp. contracted with Inmarsat U.S. Holdings, Inc. to install a satellite communications system aboard a vessel. As an Inmarsat employee, Oscar Ybarra installed the system on the mast of the vessel. During his descent of the mast, Ybarra fell and allegedly sustained injuries. Originally filed in state court, Ybarra’s case was removed and amended for claims pursuant to general maritime law. Now in federal court, the defendants moved to dismiss the case on summary judgment, alleging that there existed no genuine issue of material fact that as the vessel owner, defendants did not owe nor breach a duty to Ybarra. Defendants argued that as a repairman, Ybarra was a longshore worker whose claims fall under §905(b) of LHWCA. Ybarra did not oppose the classification of his claims as falling under the LHWCA and the duties defined by the court in Scindia. Ybarra opposed summary judgment in how Scindia is applied to the facts of his claim. After applying the three Scinda duties to the facts of the case, the court concluded that a genuine issue of material fact existed as to whether the vessel owner breached the turnover duty. Based upon the evidence provided by the parties, a reasonable trier of fact could find that the vessel owner failed to exercise ordinary care when it turned over the vessel only equipped with a single tethered harness. The fact that a two-tethered harness had not previously been used aboard the vessel was not determinative of whether a genuine issue of material fact existed as to the issue of whether it was a reasonably safe condition for the longshoreman to carry out his operations. The Court found that there was no genuine issue of material fact with respect to the active control duty. However, the court denied defendants' motion for summary judgment on the issue of whether the vessel owner breached the duty to intervene, as a reasonable trier of fact could conclude that the vessel owner knew of the danger presented when Ybarra ascended and descended a portion of the mast untethered. Defendants' motion for summary judgment was denied in part and granted in part. Ybarra's claim for breach of the active control duty was dismissed with prejudice. (USDC EDLA, March 18, 2019) 2019 U.S. Dist. LEXIS 43642
BORROWED SERVANT ARGUMENT FAILS ON SUMMARY JUDGMENT
ELVIR, ET AL. V. TRINITY MARINE PRODUCTS, INC., ET AL.
This matter arose out of the death of Jose Lopez Gonzalez which occurred while he was performing welding work at a facility owned by Trinity Marine Products, Inc. Gonzalez was at all times employed as a welder for NSC Technologies, Inc. while working at the Trinity Marine facility. Gonzalez had been working there for approximately three weeks before he was fatally electrocuted during a welding job. Plaintiffs, the surviving parents of Gonzalez, asserted negligence and products liability claims against Trinity Marine and the other named defendants. Defendants moved for summary judgment on the grounds that Gonzalez was a borrowed employee of Trinity Marine and, pursuant to the LHWCA, Trinity Marine is tort immune. The parties agreed that Gonzalez was covered by the LHWCA based on his work at the Trinity Marine facility building vessels adjacent to a navigable body of water. Although Gonzalez was employed by NSC, Trinity Marine argued that Gonzalez qualified as a borrowed employee of Trinity Marine; therefore, plaintiffs' exclusive remedy was governed by the LHWCA. Defendants contended that genuine issues of material fact existed as to Gonzalez's status as a borrowed employee. After considering the nine Ruiz factors, the court concluded that, although the Ruizfactors supported borrowed employee status, and despite Trinity Marine's strong position, there was a genuine issue of material fact concerning whether Trinity Industries, Inc. or Trinity Marine Products, Inc. controlled Gonzalez. Accordingly, the motion for summary judgment filed by Trinity Marine was denied, reserving to the parties the right to re-urge a summary judgment motion. (USDC MDLA, March 29, 2019) 2019 U.S. Dist. LEXIS 54222
OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS
The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGESTS #293 & 294. 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 indexthat 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 . . .
MARITIME TORT LAW IMPOSES A NEW DUTY ON A PRODUCT MANUFACTURER
AIR AND LIQUID SYSTEMS CORP., ET AL. V. DEVRIES, ET AL.
This maritime tort case raised the question about the scope of a manufacturer’s duty to warn. The manufacturers here produced equipment such as pumps, blowers, and turbines for three Navy ships. The equipment required asbestos insulation or asbestos parts in order to function as intended. When used on the ships, the equipment released asbestos fibers into the air. Two Navy veterans who were exposed to asbestos on the ships developed cancer and later died. The veterans’ families sued the equipment manufacturers, claiming that the manufacturers were negligent in failing to warn of the dangers of asbestos. The plaintiffs contended that a manufacturer has a duty to warn when the manufacturer’s product requires incorporation of a part (here, asbestos) that the manufacturer knows is likely to make the integrated product dangerous for its intended uses. The manufacturers responded that they had no duty to warn because they did not themselves incorporate the asbestos into their equipment; rather, the Navy added the asbestos to the equipment after the equipment was already on board the ships. The district court granted the manufacturers’ motions for summary judgment. The U. S. Court of Appeals for the Third Circuit vacated and remanded. Third Circuit held that a manufacturer of a bare-metal product may be held liable for a plaintiff’s injuries suffered from later-added asbestos-containing materials if the manufacturer could foresee that the product would be used with the later-added asbestos-containing materials. The U.S. Supreme Court granted certiorari to resolve a disagreement among the Courts of Appeals about the validity of the bare-metal defense under maritime law. Notwithstanding a strong dissent from Justice Gorsuch, with whom Justice Thomas and Justice Alito concurred. products. Justice Kavanaugh, writing for the majority of the Court agreed with the plaintiffs, holding that, in the maritime tort context, a product manufacturer has a duty to warn when its product required incorporation of a part, the manufacturer knew or had reason to know that the integrated product was likely to be dangerous for its intended uses, and the manufacturer had no reason to believe that the product’s users would realize that danger. Related situations were incorporated into the rule, i.e., when a manufacturer directed that the part be incorporated, a manufacturer itself made the product with a part that the manufacturer knew would require replacement with a similar part, or a product would have been useless without the part. The district court was directed to reconsider its grant of summary judgment as it did not evaluate the evidence under the proper rule. (U.S. Sup. Ct, March 19, 2019) 2019 U.S. LEXIS 2087
COURT ALLOWS FURTHER ATTEMPT TO REBUT THE OREGONPRESUMPTION
DAKOTA, MINNESOTA & EASTERN R.R. CORP., ET AL. V. INGRAM BARGE CO.
A towboat operated by Ingram Barge Company, was pushing empty barges up the Mississippi River when the barges struck the Sabula Railroad Bridge, owned by Dakota, Minnesota & Eastern Railroad Corporation (DM&E). Contractors completed the repairs at a cost of $276,860.85. DM&E brought suit against Ingram to recover these repair costs. Following a bench trial, the district court concluded that no comparative fault could attach to DM&E absent evidence of a breach of a legal duty to expand the bridge's horizontal clearance, and that an Order to Alter, issued by the U.S. Coast Guard in 1966 pursuant to the Truman-Hobbs Act, imposed no such duty. The Order to Alter declared the Bridge to be an "unreasonable obstruction to the free navigation of the Upper Mississippi River" and directed the then-owner to reconstruct the bridge to expand the horizontal clearance to at least 300 feet, approximately double its current width. Neither DM&E nor any prior owner of the bridge took any action to complete such reconstruction. The court apportioned all of the fault to Ingram and awarded DM&E the full amount of the repair costs plus prejudgment interest. Ingram appealed, arguing that the district court improperly applied the Oregon rule based on the facts of the case. The appellate court agreed, finding that, while the district court correctly concluded that the Coast Guard's 1996 Order to Alter did not, as a matter of law, rebut the Oregon presumption that the moving vessel breached its duty of care through operation of the Pennsylvaniarule. However, application of the Oregon rule did not end the analysis because the presumption merely addressed a party's burden of proof and/or burden of persuasion; it was not a rule of ultimate liability. In its comparative fault analysis, the district court concluded that DM&E could not be assigned any share of fault because it had no legal duty to remove or alter the lawfully permitted bridge. But the owner of a lawful bridge may be found comparatively negligent for an allision even absent an affirmative legal duty to alter the bridge's configuration, as illustrated by the Seventh Circuit's decision in City of Chicago v. M/V Morgan. Although the bridge owner had no legal duty to remove or alter the lawfully permitted bridge, a vessel operator could still attempt to rebut the Oregonpresumption through evidence of the stationary object's negligence—including the evidence relied upon by the Coast Guard in making its Truman-Hobbs Act finding. The appellate court vacated the judgment and remanded for further proceedings. (8th Cir, March 21, 2019) 2019 U.S. App. LEXIS 8539
APPELLATE COURT AFFIRMS RES JUDICATA HOLDING OF TRIAL COURT
MUSLEH V. AMERICAN STEAMSHIP COMPANY
After allegedly being injured while working as a seaman aboard a ship, Musid Musleh filed suit against the shipowner, American Steamship Company. Musleh allegedly injured his shoulder and thumb. A doctor declared him fit to return to duty. When Musleh tried to return to work, American Steamship told him he was not qualified to return because he had failed to obtain a Vessel Personnel and Designated Securities Duties certificate. Musleh never returned to work for American Steamship. The district court granted summary judgment in favor of American Steamship. A few months later, Musleh again filed suit against American Steamship. Because Musleh's claims in his second lawsuit arose out of the same injury as the claims in the first lawsuit, the district court determined that res judicata barred Musleh's claims. Musleh appealed the second denial of his claim. Musleh challenged only the fourth element of the res judicata test; that being whether there was an identity of the causes of action in his two lawsuits. The appellate court noted that this element was satisfied if the claims arose out of the same transaction or series of transactions, or if the claims arose out of the same core of operative facts. Where two successive suits seek recovery for the same injury, a judgment on the merits operates as a bar to the later suit, even though a different legal theory of recovery is advanced in the second suit. Musleh's claims for unearned wages and for maintenance and cure benefits from his original lawsuit arose out of the same transaction as Musleh's claims for Jones Act negligence, unseaworthiness and, again, maintenance and cure in this lawsuit. The appellate court concluded that Musleh's claims in his second lawsuit all stem from the same event that gave rise to Musleh's first lawsuit, namely his alleged injury. Because Musleh's claims all arose out of the same transaction or operative facts, there was an identity of the causes of action raised in both lawsuits, and the fourth element of claim preclusion was satisfied. Res judicata, therefore, barred Musleh's current claims. The judgment in favor of American Steamship was affirmed. (6thCir, March 12, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 7198
PRO SE CLAIMANT’S ARE PITAS
KIRKLAND V. HUNTINGTON INGALLS, INCORPORATED
Johnny Kirkland, proceeding pro se, filed suit seeking recovery for various injuries related to his employment by Huntington Ingalls, Inc., in the 1970s. The district court determined that Kirkland's claims were preempted by the LHWCA, or otherwise barred by the applicable statutes of limitations. Kirkland appealed the district court’s judgment, alleging that Ingalls exposed him to asbestos as well as other hazardous workplace conditions. The appellate court noted that these allegations and conditions related exclusively to Kirkland's work for Ingalls in the field of ship construction and repair. Therefore, they were governed by the LHWCA, and Kirkland could not sue Ingalls for injuries sustained on the job. Kirkland did not dispute that Ingalls was covered by the LHWCA; instead, he argued that his specific claims fall outside the scope of that statute under the dual capacity doctrine. However, the appellate court noted that Kirkland did not allege that he was injured by the negligence of one of Ingalls' vessels. Accordingly, the dual capacity doctrine did not apply and his claims were preempted. Kirkland next claimed that Ingalls violated Mississippi's child labor statute by hiring him at the age of 13. The appellate court declined to consider how this related to LHWCA's preemptive scope, because the claim was barred by Mississippi's statute of limitations. The judgment of the district court was therefore affirmed. (5thCir, March 18,2019, UNPUBLISHED) 2019 U.S. App. LEXIS 7919
SPLIT FIFTH CIRCUIT PANEL DEALS WITH MESOTHELIOMA REMAND
LATIOLAIS V. HUNTINGTON INGALLS, INCORPORATED
James Latiolais, formerly a machinist aboard a Navy vessel, was allegedly exposed to asbestos while his ship underwent refurbishing at Avondale Shipyard for several months. During the refurbishing process, Latiolais spent most of each day on the ship. In 2017, Latiolais was diagnosed with mesothelioma. He died in October, 2017. Latiolais sued Avondale in Louisiana state court for causing him to contract mesothelioma. He asserted that Avondale negligently failed to warn him about asbestos hazards and failed to provide adequate safety equipment. He did not allege strict liability claims against Avondale. Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1). Latiolais sought remand, however, and the district court granted the motion. It ruled in relevant part that because Avondale had not met the "causal nexus" requirement for officer removal, i.e. had not shown that the United States or any of its officials exercised any control over Avondale's safety practices, removal under this statute was improper. Avondale timely appealed. On appeal, Avondale (now Huntington Ingalls, Inc.) argued that, as amended in 2011, the removal statute now requires only that a federal directive "relates to"—but not necessarily has a causal relationship to—the plaintiffs' injuries. A divided panel of the Fifth Circuit (Judge Haynes dissenting) reluctantly affirmed the remand to state court of a claim of exposure to asbestos against a shipyard that asserted that work performed on the US Navy ship was done at the direction and under the supervision of Navy. The majority of the panel considered itself bound by Circuit precedent. Although a 2011 amendment to 28 U.S.C. §1442(a)(1) required only that a federal directive "relate to" the injuries, the court had applied the "causal nexus" test from the pre-2011 version of the statute to the new statute, and the shipyard failed to show that it was not free to adopt the safety measures that asbestos-plaintiffs alleged would have prevented their injuries. The majority panel noted that a majority of cases, which post-date the 2011 amendment to Section 1442(a)(1), continue to cite Bartel, while drawing a distinction for removal purposes between claims for negligence (not removable) and strict liability (removable) pursuant to the causal nexus test. The majority panel felt bound by this series of cases. Avondale attempted to demonstrate that even under the causal nexus test used in this post 2011 case law, removal could still be sustained. The Majority panel did not find this contention persuasive. Although the court was constrained by precedent, it expressed hope that its precedents would be reordered because its application of the "causal nexus" test to the post-2011 version of §1442(a)(1) was out of step with other circuits, noting that federal courts should be in harmony concerning the interpretation of statutes governing essential procedures like removal, acknowledging that the Fifth Circuit was out of step with Congress and its sister circuits. The judgment of the district court was affirmed. (5th Cir, March 11, 2019) 2019 U.S. App. LEXIS 7109
11TH CIRCUIT ADDRESSES NOTICE REQUIREMENT UNDER THE LIMITATION ACT
ORION MARINE CONSTRUCTION, INC. V. CARROLL, ET AL.
This case required the Eleventh Circuit to navigate uncharted waters in order to determine what constitutes sufficient notice of a claim under the Shipowner's Limitation of Liability Act. In connection with a large bridge-construction project, Orion Marine Construction used four barges to drive piles into the seabed. After numerous local residents complained that their homes had been damaged by vibrations caused by the barges' pile-driving activities, Orion filed a limitation action under the Act. Claimants Mark and Christine Dawson moved to dismiss Orion's suit, arguing that Orion had received adequate notice of the claims against it more than six months before it filed, that the action was therefore time-barred, and, accordingly, that the district court lacked subject matter jurisdiction. The district court agreed and granted the Dawsons' motion to dismiss. Orion appealed the district court’s judgment, presenting several interesting and important questions about the meaning and operation of the Act. The appellate court found that the district court improperly dismissed the shipowner's limitation action against the claimants under the Shipowner's Limitation of Liability Act, because it erred in holding that all of the claims, oral and written, and to whomever communicated, constituted written notice to the owner under 46 U.S.C. §30511(a) as only the written complaints submitted in writing to the shipowner, either directly or through its agent, satisfied §30511(a)'s written notice requirement, and even if all oral and written complaints were considered, their notices failed the Doxsee/McCarthytest because they did not reveal a reasonable possibility that the claims, even considered in the aggregate, would exceed the value of the shipowner's barges. The appellate court pointed out that in a limitation of liability action, that the six-month filing deadline does not erect a jurisdictional barrier to a limitation action, but instead is a non-jurisdictional claim-processing rule. The district court’s judgment was reversed and case was remanded. (11THCir, March 20, 2019) 2019 U.S. App. LEXIS 8244
Updater Note: The court's position on the non-jurisdictional claim-processing standard for the limitation filing action from the receipt of written notice of a claim is contrary to the position taken by the two other circuits that have considered the matter.
UNSUPPORTED CONCLUSORY STATEMENTS WARRANT REVERSAL
ENI US OPERATING CO., INC. V. TRANSOCEAN OFFSHORE DEEPWATER DRILLING
Eni and Transocean are both companies in the oil-drilling business. They formed a contract about drilling for oil. Their relationship soured. Both sued for breaches of that contract. After a bench trial, Eni suffered a resounding loss on all issues: The district court rejected its claims surrounding Transocean's maintenance of its equipment, found that Eni had wrongly repudiated the contract, and awarded damages to Transocean. Eni appealed the district court’s judgment. In Eni's eyes, the district court got nothing right. It wrongly rejected its breach-of-contract and breach-of-warranty claims, incorrectly found it liable on Transocean's breach-of-contract claim, and used an improper methodology to calculate Transocean's damages. The appellate court vacated the district court's judgment and remanded for more factual findings because the district court's order contained two sentences in two separate sections that made the ultimate factual conclusion on the good-oilfield-practice issue and these conclusory statements were unsupported by the factual analysis they followed, leaving the appellate court to speculate as to whether the district court sufficiently grappled with the facts relevant to the good-oilfield-practice issue. (5th Cir, March 28, 2019) 2019 U.S. App. LEXIS 9246
APPELLATE COURT AFFIRMS LIMITATION ACTION WAS TIME-BARRED
IN RE: BROWN V. EDWARDS AND RICHTER, LLP
During Hurricane Harvey, Gene Brown's sailboat damaged a marina. Brown may have taken some precautions, but they were not enough given the storm's wrath. Soon after the incident, in September 2017, a lawyer for the damaged marina sent a demand letter to Brown along with photographs of the damage and specifically demanded that Brown put his insurance carrier on notice of the marina’s claim. A later letter in March of the following year stated the precise amount of the damages as $85, 000. Brown then filed this suit in May 2018, seeking to limit his liability to the claimed value of his boat: $2,000. On the recommendation of the magistrate judge, the district court granted the marina's motion to dismiss because the suit was filed more than six months after Brown first received notice of a potential claim. It treated the September 2017 letter as the relevant notice. The district court held that he was late in invoking the Act. Brown appealed the district court’s judgment, arguing that the September letter did not put him on notice that a claim exceeding the value of his sailboat was possible. This is so, he says, because the letter did not identify the vessel's hull number, the date of the loss, or the address of the damaged marina; did not allege what Brown did wrong; and did not quantify damages. To receive the protections of the Act, the vessel owner must bring an action within 6 months after a claimant gives the owner written notice of a claim. The timeliness of a Limitation Act complaint usually turns on which communication is considered the "written notice of a claim" that starts the six-month clock. A communication qualifies as written notice if it 'reveals a reasonable possibility that the claim will exceed the value of the vessel. As the beneficiary of the Act's generous protections, the shipowner has the incentive to investigate its exposure once it receives notice of a potential claim. And if potential liability cannot be determined by the first possible filing deadline, the owner may protect itself by filing a protective Limitation Act complaint. The appellate court pointed out that the September letter did not require the detail that Brown argues was required and also raised the reasonable possibility that the claim would exceed the value of the vessel. That is largely because the value of the vessel-$2,000-is so low. One would reasonably expect that repairs to the "pier and pilings" at a marina would exceed that amount. The district court judgment was affirmed. (5thCir, March 21, 2019, UNPUBLISHED) 2019 U.S. App. LEXIS 8533
CENAC TOWING WINS BIG IN SEAMAN’S CASE
GIROIR V. CENAC MARINE SERVICES, LLC
This maritime personal injury litigation arose out of Ricky Giroir ‘s claim that he sustained injuries on two separate occasions while working aboard vessels owned by his employer, Cenac Marine Services, LLC. Giroir had an extensive medical and surgical record pre-dating his tenure with Cenac; that record features a history of congenital birth defects and countless injuries sustained both on and off-the-job. Giroir completed an application for employment with Cenac, in which he indicated that he did not have any physical or mental conditions which may interfere with or hinder the performance of the job for which he wished to be considered. Although he did disclose on the application that he had sustained a prior on-the-job neck and shoulder injury, he did not disclose his prior on-the-job back injury. In connection with the application process, Giroir also was required to complete a medical questionnaire and undergo a pre-employment physical exam. When asked whether he had a prior or current back injury, Giroir changed his response on the questionnaire from "yes" to "no." Giroir was working aboard a Cenac vessel, when he allegedly sustained disabling injuries to his lower back after retrieving a sixty-to-seventy-pound oil pump from a shelf in the vessel's engine room. Although he reported that the injury could have been avoided if someone had helped him, he also stated under oath that he elected not to ask for help even though another crewmember was available to assist him; he also has testified that no condition of the vessel caused his back injury. Giroir elected to undergo surgery for his lumbar stenosis, after which he was out of work for four months; he remained on Cenac’s payroll during that time and was ultimately released to work. Less than six months later, Giroir allegedly sustained an unrelated on-the-job injury in connection with his assignment as a relief captain, when he fell on a flat boat while traveling to shore for a crew change. Giroir sued Cenac, alleging that Cenac’s negligence under the Jones Act and the unseaworthiness of its vessels under the general maritime law caused both his injuries. He also alleged that the defendant owes him maintenance and cure for both incidents. In response, Cenac filed a counterclaim, seeking to recover payments made to and on behalf of Giroir for maintenance and cure that were not related to his work activity with the company. Cenac then moved for summary judgment in its favor, dismissing Giroir’s Jones Act and unseaworthiness claims, as well as summary dismissal of his maintenance and cure claim insofar as it concerns his alleged back injury. Although Giroir contended that his deposition testimony should not be treated as a judicial admission, he presented no competent evidence to controvert his sworn testimony or indicate how Cenac was negligent in causing or contributing to his alleged injuries. Accordingly, Giroir failed to demonstrate that a genuine dispute existed as to whether Cenac knew or should have known that Giroir was not physically qualified for heavy manual labor on its vessels as of the date of his injury. Because the record was devoid of any evidence to suggest that Giroir could establish that either vessel was unseaworthy, the court was convinced that summary dismissal of his unseaworthiness claim was appropriate. The court noted that, under McCorpen, an employer is relieved from its duty to pay maintenance and cure in certain circumstances. In support of its McCorpen defense, Cenac submitted that Giroir blatantly failed to disclose his history of back pain and surgeries on two different medical questionnaires submitted during the employment application process with Cenac, and now seeks maintenance and cure for a lower back injury. Cenac submitted that summary relief in its favor dismissing the plaintiff's maintenance and cure claim as to his alleged back injury was appropriate because all three elements of the McCorpen defense were satisfied. The court agreed. Accordingly, Cenac’s motions for summary judgment were granted. Giroir’s Jones Act negligence and unseaworthiness claims, as well as his claim for maintenance and cure related to his alleged back injury, were dismissed with prejudice. (USDC EDLA, March 6, 2019) 2019 U.S. Dist. LEXIS 35790
FALLON DISMISSES DJ ACTION AS “WELL-ESTABLISHED PRACTICE”
REC MARINE LOGISTICS, LLC V. DENOUX
REC Marine Logistics, LLC filed a declaratory judgment action, following injuries allegedly sustained by its employee, Andre Denoux, who claimed that he was injured while working for REC as a captain and member of the crew. REC, however, denied that Denoux was injured as claimed, and sought a declaration that it was relieved of any obligation to pay maintenance and cure benefits. After REC filed its declaratory judgment action, Denoux sued REC in state court, asserting claims for negligence, unseaworthiness, and maintenance and cure. Denoux moved to o dismiss or stay REC’s DJ action pending resolution of the state-court suit, arguing that the state-court suit would resolve all issues between the parties, and REC brought its action in an attempt to deprive Denoux of his choice of forum. In opposition, REC argued that the state-court suit would likely be dismissed for improper venue, and federal court was convenient for all parties. After considering the factors relevant to the abstention doctrine, the court found that, on balance, the factors weighed in favor of dismissal. Denoux's state-court lawsuit may resolve all issues between the parties. The court declined to predict whether, as REC contends, the state court would determine that venue was improper. Furthermore, dismissal will preserve Denoux's right to proceed in a forum of his choosing and avoid duplicative or piecemeal litigation. Finally, the court noted that is found no reason to depart from the well-established practice that courts in the district dismiss preemptive declaratory judgment actions in maritime personal injury cases. Denoux’s motion to dismiss was granted and REC’s declaratory judgment action was dismissed with prejudice. (USDC EDLA, March 26, 2019) 2019 U.S. Dist. LEXIS 50290
COURT DENIES SUMMARY JUDGMENT ON SEAMAN STATUS
LAMA V. FLORIDA MARINE TRANSPORTERS, LLC
Anthony Lama was employed by Florida Marine Transporters, LLC (FMT) to perform barge maintenance and repair. Lama alleged that he was injured while replacing a cable on an emergency shutdown system on an FMT Lama filed suit, asserting claims for unseaworthiness, Jones Act negligence, and maintenance and cure. FMT moved for summary judgment, arguing Lama was not a Jones Act seaman because he cannot present evidence establishing that he performed the work on any vessel, or that he spent the requisite amount of time necessary to convey seaman status. The parties did not dispute that Lama was employed by FMT to perform barge maintenance and repair and that his daily job duties included preparations for vetting and Coast Guard inspections, performing damage assessments, and conducting general barge maintenance. Lama was responsible for maintenance on a certain set of barges within his geographical area and completed barge inspections on the barges. The court concluded that, under the "broad" and "relatively easy" standard, Lama had demonstrated through undisputed facts that he did the ships work and contributes to the function of FMT's vessels. Accordingly, the court turned to the second prong of the seaman status inquiry. FMT contended that the log of Lama’s work established that Lama spent only a fraction of his time, at most 12.5%, aboard a vessel. Lama testified he spent seventy percent of his working hours standing on a barge. Therefore, the court concluded that disputed issues of material fact regarding the time Lama spent working aboard vessels in navigation precluded summary judgment on Lama’s status as a Jones Act seaman. Accordingly, FMT's motion for summary judgment on Lama’s seaman status was denied. (USDC EDLA, March 26, 2019) 2019 U.S. Dist. LEXIS 49863; (USDC EDLA, March 27, 2019) 2019 U.S. Dist. LEXIS 51161
QUESTION OF FEDERAL JURISDICTION RESOLVED IN FAVOR OF EMPLOYER
SANCHEZ V. ENTERPRISE OFFSHORE DRILLING LLC, ET AL.
The issue presented in this personal-injury case is federal subject-matter jurisdiction. Gilbert Sanchez, an employee of Smart Fabricators of Texas, LLC, did welding work on different drilling rigs. While working on a jacked-up drilling rig owned and operated by Enterprise Offshore Drilling LLC, Sanchez tripped on a pipe and allegedly injured his ankle and back. Sanchez sued Enterprise Offshore Drilling and Smart Fabricators in state court, asserting negligence and unseaworthiness claims and seeking medical expenses, lost wages, and exemplary damages. Enterprise and Smart Fabricators removed, arguing that the court had subject-matter jurisdiction because Sanchez's injury occurred while he was working on a drilling rig jacked up on the Outer Continental Shelf. Sanchez dismissed his claims against Enterprise and moved to remand, arguing that the Jones Act precluded removal. Based on a careful review of the pleadings, the motion and response, the record, and the governing law, the court found that Sanchez was not a seaman under the Jones Act and denied the motion to remand. Sanchez had argued that the drilling rigs he worked on for Smart Fabricators were "vessels in navigation." However, the court pointed out that the fact that Sanchez sometimes ate and slept, and did welding work, on the rigs did not make him a crew member of either rig. Sanchez also failed to show that the duties he performed for Smart Fabricators on the two Enterprise jacked-up drilling rigs exposed him to the perils of the sea. Finally, the court found that Sanchez had not alleged facts or submitted or identified evidence showing that he had a substantial connection with a vessel in navigation as a seaman. The Jones Act does not apply, and the case was removable. (USDC SDTX, March 25, 2019) 2019 U.S. Dist. LEXIS 48954
EIGHT DOLLAR MAINTENANCE RATE FOUND TO BE UNREASONABLE (CONT.)
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 [see February 2019 Longshore Update]. American Steamship Company's and Liberty Steamship Company moved for reconsideration of this court's opinion and order granting Knudson’s motion for partial summary judgment on the pleadings, submitting two palpable errors in their motion for reconsideration. First was that the court failed to adequately address defendants' federal labor law arguments regarding whether defendants were legally able to pay plaintiff more than $8 a day in maintenance when that was the amount set in the Terms and Conditions. The court pointed out that it had considered all of defendants' arguments in concluding that Knudson was not covered by a collective bargaining agreement negotiated by a union. Thus, by implication, the court did not accept defendants' argument that federal labor law prevented them from paying a reasonable rate of maintenance to plaintiff when union workers would have been bound by the rate set by the Terms and Conditions. Second, defendants argue that the court failed to address their request for judgment as a matter of law on the punitive damages component of plaintiff's maintenance and cure claim. In granting Knudson’s motion for partial summary judgment, the court concluded that the $8 a day maintenance rate was unenforceable and that plaintiff could seek punitive damages for his maintenance claim, limited to the two-year period beginning immediately following his accident and ending when defendants began paying plaintiff $45 a day. The defendants' motion for reconsideration was denied. (USDC EDMI, February 26, 2019) 2019 U.S. Dist. LEXIS 32382
COURT APPROVES PETITION FOR APPROVAL OF GENERAL BOND (CONT.)
COVE MARINE VENTURES LTD. V. EMMS, ET AL.
Cove Marine filed a petition seeking court approval of a general bond conditioned to answer any judgment that may be brought related to the claims of Kegan Emms and Alan Leigh d/b/a/ Yale Products, Inc. In the Petition, Cove Marine asserted that there were only two known claims attached to its vessel, and proposed a general bond in the amount of $500,000.00 be approved by the court, asserting that the amount was appropriate because the amount of the bond is more than sufficient because the bond amount is more than double of aggregate amount of the claims as required by the rule. Emms moved to dismiss the petition arguing solely that the court did not have subject matter jurisdiction to proceed, arguing that while federal courts have the exclusive power to adjudicate in rem suits against a vessel, that power is dependent on the court's jurisdiction over the res, and such jurisdiction was lacking here where the vessel was not yet a defendant. The court found this argument to be without merit. Emms' motion to dismiss was denied. After evaluating the potential claims, the court was satisfied that the Cove Marine’s proposed general bond in the amount of $500,000.00 would serve as sufficient security in this case. The petition was therefore granted [see March 2019 Longshore Update]. In consideration of Yale Products' Motion to Reopen, the court re-reviewed the record and found that it issued the general bond in error and it agreed with Emms that the court lacked jurisdiction over the vessel to proceed. The issuance of the general bond was not supported by the applicable rules of procedure or any authority cited by Cove Marine in its petition. Supplemental Rule of the Federal Rules of Civil Procedure E(5)(b) permits an owner of a vessel to move for a general bond to avoid seizure of the vessel. It does not, however, allow the owner of a vessel to initiate an action via a "Petition for General Bond." This rule contemplates that a lawsuit has already been initiated by a party against the defendant vessel, not that a future defendant may use the general bond provision to force a party to bring its lawsuit. The court further noted that none of the authority cited by Cove Marine in either its petition or its opposition to Emms' motion to dismiss, articulated that Cove Marine may initiate an action in this way. In conducting its own research, the court did not find any authority supporting that Cove Marine may proceed with this action in this manner. In the motion to reopen, Yale Products requested that the court reopen this action and impose a deadline in which the claimants must file their claims. The court noted that it could not impose a deadline for the claimants to initiate a lawsuit regarding their claims. The Claimants are free to initiate an action against the Vessel at any time subject to the applicable limitations. The Motion to reopen and clarify was granted in part and denied in part. The court’s prior order granting the general bond was vacated and the motion to set bond was denied. (USDC SDFL, March 5, 2019) 2019 U.S. Dist. LEXIS 37144
SEAMAN’S QUESTIONABLE CLAIMS DISMISSED ON THE PLEADINGS
WELLER V. THE FISHING COMPANY OF ALASKA, INC, ET AL.
Matthew Weller was allegedly injured while working as a cook on the commercial fishing vessel. Weller claimed that he injured his back while offloading boxes of fish, seeking damages for negligence and unseaworthiness. Defendants moved for partial judgment on the pleadings regarding Weller’s claims for punitive damages, earned and unearned wages and double wage penalties, and attorney fees and consequential damages related to termination of maintenance and cure. Based on the facts alleged in the complaint, the court agreed that neither of Weller’s claims met the standard for punitive damages. Weller made no factual allegations relating to the fitness of the vessel for its intended use other than a conclusory allegation of unseaworthiness, which the court need not consider. Weller also made no factual allegations as to the cause of his injuries other than a conclusory allegation that they were directly and proximately caused by the unseaworthiness of the vessel, which the court again need not consider. Thus, the court found that Weller failed to allege sufficient facts to support his claim for punitive damages under his unseaworthiness claim. Weller also failed to allege facts that defendants' failure to provide maintenance and cure was based on its callous disregard, gross negligence, or actual malice. Therefore, Weller failed to plausibly allege that he would be entitled to punitive damages under his general maritime law claim. Weller alleged that he was receiving maintenance until recently and his injuries are unresolved. Taken in the light most favorable to Weller, the court saw a plausible claim for wrongful termination of maintenance and cure. However, Weller made no factual allegations raising the allegation from a wrongful termination of maintenance and cure to an arbitrary, recalcitrant, or unreasonable failure to provide maintenance and cure. For this reason, the court concluded that Weller had not made a plausible claim for attorney fees for failure to pay maintenance and cure. However, because maintenance and cure is properly provided until the seaman is cured of his injury and Weller has alleged that he is not cured, he had made a plausible claim that defendants have wrongfully terminated his maintenance and cure. As such, Weller had made a plausible claim for consequential damages that survived defendants' motion for judgment on the pleadings. For the foregoing reasons, defendants' motion for judgment on the pleadings was granted in part and denied in part. Weller’s claim for earned and unearned wages and double wage penalties was dismissed without leave to amend, and his claims for punitive damages and attorney fees were dismissed without prejudice, and with leave to amend. (USDC WDWA, March 14, 2019) 2019 U.S. Dist. LEXIS 41737
COURT REFUSES TO DISSOLVE LIMITATION INJUNCTION & BIFURCATE CASE
IN RE: AMERICAN COMMERCIAL BARGE LINE, LLC.
Christopher Brothers filed suit against Kinder Morgan Marine Services, LLC and American Commercial Barge Line, LLC alleging claims of negligence, negligence per se, and gross negligence related to alleged injuries he sustained during two separate incidents while working aboard two Kinder Morgan vessels. American filed this limitation of liability action, seeking to limit its liability for injuries Brothers sustained during the alleged second incident. Kinder Morgan filed a separate limitation of liability action seeking to limit its liability to Brothers for his injuries arising from both incidents. Brothers filed separate answers and claims against Kinder Morgan and American in the two limitation actions, which were consolidated. Kinder Morgan filed its own answer and claims against American, seeking indemnity and contribution from American for liability it may incur to Brothers as a result of the second alleged accident. After the court issued an order staying the institution or prosecution of any of Brothers' claims against American except in this action for exoneration, Brothers moved to dissolve the limitation injunction and to bifurcate. Kinder Morgan and American opposed the motion, arguing that Brothers' stipulation was not sufficient. In addition to arguing that the substance of the stipulation was insufficient under Fifth Circuit precedent, the defendants argued that the stipulation failed, regardless of its substantive sufficiency, because Kinder Morgan is a claimant and had refused to sign the stipulation. The court was not persuaded by Brothers' argument that Kinder Morgan’s indemnity and contribution claims should not be considered because they were based on Kinder Morgan’s maintenance and cure obligation. Kinder Morgan was not seeking to limit its liability for maintenance and cure to Brothers. Neither Brothers nor Kinder Morgan was seeking maintenance and cure from American. Brothers' claims against American and Kinder Morgan’s indemnity and contribution claims against American were tort claims. The court held that the stipulation was insufficient because not all claimants have agreed to sign it. Kinder Morgan has also refused to agree to bifurcation. In the absence of a stipulation signed by both Brothers and Kinder Morgan agreeing to American’s right to limitation, allowing Brothers' claims to proceed in state court would be inappropriate because the court cannot protect American’s right to limitation. Weller’s motion to dissolve limitation injunction and to bifurcate were denied. (USDC SDTX, March 14, 2019) 2019 U.S. Dist. LEXIS 41337
COURT EXONERATES EMPLOYER FROM LIABILITY FOR TWO ACCIDENTS
IN RE: MARQUETTE TRANSPORTATION COMPANY OFFSHORE, LLC V. CISNEROS
Abel Cisneros was employed by Marquette Transportation Company Offshore, LLC to begin work on a tug boat on a Great Lakes dredging project. Cisneros arrived at a dock, where he boarded a crewboat Great Lakes supplied to transport employees out to the dredging project. Cisneros claimed that he injured his back while boarding the crewboat. Cisneros did not report his alleged injury until the next day. In a second incident, Cisneros claims that he felt a bump or jerk while working on the scow that caused him to injure his back. The only evidence of the bump on the record is Cisneros's testimony. Cisneros filed suit against Marquette and Great Lakes. Marquette then filed a complaint for Exoneration from or Limitation of Liability. Cisneros filed an answer and claim in the limitation action, alleging both that Marquette was negligent and that it failed to provide a seaworthy vessel. Marquette moved for summary judgment, arguing that there was no genuine dispute of material fact regarding negligence or unseaworthiness. The court agreed. Although unseaworthiness generally is a question of fact for the jury and should not be resolved by the district court as a matter of law, in this case no reasonable jury could find Marquette liable under a theory of unseaworthiness for the injuries that Cisneros allegedly suffered while boarding the crewboat or the injury allegedly suffered do to the alleged bump to the barge. Additionally, there was nothing about the condition of the dock, the crewboat or the barge that was allegedly bumped, that would put Marquette on notice that Cisneros would be unable to safely board the crew boat. No reasonable jury could find that Marquette failed to exercise ordinary care, and therefore Marquette is entitled to judgment as a matter of law on Cisneros’s negligence claim. Marquette's motion for summary judgment was granted. Marquette was exonerated from liability to Cisneros. (USDC WDKY, March 22, 2019) 2019 U.S. Dist. LEXIS 47973
COURT REFUSES TO STAY LIMITATION ACTION
IN RE: D'ONOFIO GENERAL CONTRACTOR CORP.
Edward Safer, the captain and sole member of the crew of a D'Onofio General Contractor Corp. vessel, allegedly suffered an injury to his left knee while working on board the vessel as a Jones Act seaman. Safer brought suit in state court against D'Onofio, his employer and the owner of the vessel, claiming that he was entitled to receive maintenance and cure benefits. He also brought claims against Avitus, a co-employer at the time of the alleged injury. D'Onofio filed an admiralty action in federal, seeking limitation of or exoneration from vessel owner liability pursuant to the Limitation of Liability Act. Avitus thereafter filed claims against D'Onofio. Safer moved to vacate the stay of his action in state court and to stay the federal action pending the conclusion of the state court action. Safer also moved for summary judgment in favor of Safer, dismissing Avitus' claims in the limitation action. Both D'Onofio and Avitus objected to the motion to lift the stay. Although Avitus has filed a claim against D'Onofio for contractual indemnity, Safer argued that Avitus' claim is not subject to limitation under the Limitation Act because it arises from a personal contract between D'Onofio and Avitus. D'Onofio and Avitus were parties to a professional employer agreement, and were "co-employers of employees" hired to work on D'Onofio's Bridge Contract. Safer argued that the PEA constituted a "personal contract" that excludes the Avitus claims from limitation. Thus, Safer contended that he is the "sole claimant" and he should be allowed to proceed with his action in state court. Although Safer sought to have the court dismiss the Avitus claim for indemnification on the grounds that it falls within a "personal contract" exception, the court could not ignore the fact that claims had been made against Avitus by both D'Onofio and Safer that could result in Avitus seeking common law indemnification or contribution from D'Onofio. Additionally, Safer's proffered stipulation was missing certain required elements. Safer's proposal failed to adequately preserve the petitioner's limitation rights. As claimant's claim exceeds the value of the vessel and its cargo, and his stipulation is insufficient to create the equivalent of a single-claimant action, Safer's claim failed to fall within the specific circumstances within which a federal court stays a limitation proceeding to allow the claimant to proceed in state court. The court therefore denied Safer's motion to vacate the stay of his personal injury action in state court. The court found it unnecessary to determine the role of the PEA, as it found that claimant cannot prove that his action falls within either of the "saving to suitors" clause exceptions. Safer's argument in support of his motion to dismiss Avitus from the limitation action was based on the same arguments raised in support of his request to lift the stay. Until the status of Avitus as co-employer is determined, there is the possibility that Avitus could be held liable for any damages found to be owing under Safer's Jones Act claim or under his claims for maintenance and cure. As this question remained a disputed material issue of fact for the trier of fact to decide, the court denied Safer's motion for summary judgment. The Court denied Safer's motion to vacate the stay of his action in state court and denied the request to stay this federal action pending the conclusion of the state court action. The Court further denied Safer's motion for summary judgment. (USDC EDNY, March 26, 2019) 2019 U.S. Dist. LEXIS 50698
TOO MANY QUESTIONS OF MATERIAL FACT
BAIGI V. CHEVRON USA INC., ET AL.
Vahid Baigi was working for Chevron Shipping Company, LLC, as an able bodied seaman, when he allegedly sustained an injury after inspecting seven ballast tanks, when he felt a sharp pain in his knee. The pain and soreness did not abate and on the knee began to swell considerably. After Baigi filed suit, claiming Jones Act negligence and unseaworthiness, Chevron moved for partial summary judgment, arguing that Baigi consciously assumed responsibility for the safety of the ballast tank cleaning operation and created and controlled the dangerous condition by completing the task too quickly. Chevron also argued that Baigi knowingly violated his primary duty to ensure the ballast tank inspections were done safely. The court found that Baigi had raised at least four disputed material facts that pierced Chevron’s arguments for purposes of summary judgment. Baigi’s evidence created material issues of fact regarding whether his case is an instance where he did not consciously assume a duty. Likewise, there were issues of fact as to who created and controlled the dangerous conditions that led to Baigi's alleged injury. Finally, there are material issues of fact regarding whether Baigi knowingly violated a duty. As such, it would be inappropriate to grant partial summary judgment with respect to the primary duty rule. The court therefore denied Chevron’s motion for partial summary judgment. (USDC NDCA, March 19, 2019) 2019 U.S. Dist. LEXIS 45290
PUNITIVE DAMAGES & ATTORNEY FEE CLAIMS DISMISSED
LEWIS V. MARQUETTE TRANSPORTATION COMPANY, LLC, ET AL.
Marquette Transportation Company Gulf-Inland, LLC filed a motion for partial summary judgment seeking dismissal of claims by Joshua Lewis for attorney's fees and punitive damages associated with the alleged arbitrary and capricious failure to provide maintenance and cure. Lewis, who was represented by counsel, failed to file a memorandum in opposition to the aforementioned motion for summary judgment. Accordingly, because the motion for summary judgment is unopposed, and it appearing to the court that the motion has merit, Marquette's motion for summary partial judgment seeking dismissal of Lewis' claims for attorney's fees and punitive damages associated with the alleged arbitrary and capricious failure to provide maintenance and cure was granted as unopposed, and those claims were dismissed with prejudice. (USDC EDLA, March 29, 2019) 2019 U.S. Dist. LEXIS 54059
Quotes of the Month . . .“The greatest mistake you can make in life is to continually be afraid you will make one.”- - Elbert Hubbard
“What would life be if we had no courage to attempt anything.”- -Vincent Van Gogh
“Treat people like mirrors & watch how you reflect in their eyes.”- -Nnamdi G. Osuagwu
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