Longshore Update

February 2012 Longshore Update

2012-02-01T03:10:00.000-08:00

February 2012

Notes From Your Updater - The 2012 Loyola Annual Longshore Conference will be held at the Sheraton New Orleans Hotel, New Orleans, Louisiana, from March 15 &16, 2012. There are still openings remaining at this time. You can even register online.

SAVE THE DATE - Signal/LCA Maritime Conference, May 21^st to May 23^rd, 2012, Longshore Practice in the 21^st Century: Enhancing the Maritime Industry’s Vision and Voice through the Pursuit of Educational Excellence. Two days of intriguing topics at The Hyatt Regency Penn’s Landing, Philadelphia, PA. There will be pre-registration on May 21, 2012, followed by a Welcome Reception. There will also be optional shipyard tours for early bird registrants. Stay tuned for more details.

The United States Supreme Court heard oral argument in the case of Roberts v. Sea-Land Services , Docket 10-1399, on Wednesday, January 11, 2012. You can also listen to an audio version of the argument, courtesy of the Oyez Project at Chicago-Kent, available here (it’s much more interesting then reading a boring transcript, I might add). The question was limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded. While listening to Josh Gillelan argue his position, Justice Breyer twice referred to feeling like he was in an Abbott and Costello movie. My impression was that none of the Justices were receptive to Gillelan’s idea of making every claimant seek a formal order, either on their own volition or at the insistence of the employer, to lock in a maximum rate. You may use these links to review the Petition for Certiorari, the Brief in Opposition, and the Reply Brief in the case. Jack Martone also wrote up a great post-argument recap, which you can read here.

SUPREME COURT SAYS THE NINTH CIRCUIT DIDN’T BLOW IT (FOR A CHANGE)

PACIFIC OPERATORS OFFSHORE, LLP, ET AL. V. VALLADOLID ET AL.

Supreme Court Opinion

Circuit Court Opinion

BRB Decision

ALJ Decision

Juan Valladolid worked for Pacific Operations Offshore as a roustabout, stationed primarily on one of Pacific Operations' two offshore drilling platforms. He was killed, however, on the grounds of Pacific Operations' onshore oil-processing facility when he was crushed by a forklift. Valladolid's widow, received death benefits under California's workers' compensation scheme. She also filed a claim for benefits under the LHWCA, both directly under the LHWCA and via the Outer Continental Shelf Lands Act extension to outer continental shelf workers. The ALJ denied the widow’s OCSLA claim on the grounds that Valladolid's injury had occurred outside the geographic situs of the outer continental shelf. The ALJ denied the LHWCA claim on the grounds that Valladolid was not engaged in maritime employment, and he was not injured on a maritime situs. The BRB upheld the ALJ's denial of the OCSLA benefits under the "situs-of-injury" test, and affirmed the denial of LHWCA benefits on the maritime situs ground. The BRB did not reach the maritime employment issue. The widow appealed the Board’s denial of benefits, contending that the BRB impermissibly applied a "situs-of-injury" requirement for OCSLA workers' compensation, denying her claim because her husband was killed on shore and not on the outer continental shelf. This was an issue of first impression in the Ninth Circuit. The Ninth Circuit reversed, rejecting tests used by the Third and the Fifth Circuits, holding that the claimant need only establish a substantial nexus between the injury and extractive operations on the outer continental shelf. To meet the standard, the court held that a claimant must show that the work performed directly furthers outer continental shelf operations and is in the regular course of such operations [see June 2010 Longshore Update]. Pacific filed a petition for certiorari, which was granted by the U.S. Supreme Court on February 22, 2011 [see March 2011 Longshore Update]. After hearing oral argument in the case on October 1, 2011, the U.S. Supreme Court issued its opinion affirming the 9^th Circuit’s opinion and holding that the OCSLA extends coverage to an employee who can establish a substantial nexus between his injury and his employer's extractive operations on the OCS. The Court rejected the Fifth Circuit's "situs-of-injury" test, finding nothing in the text of §1333(b) suggesting that an injury must occur on the OCS. The Court also noted that the text of §1333(b) also gives no indication that Congress intended to exclude OCS workers who are eligible for state benefits from LHWCA coverage. To the contrary, the LHWCA scheme incorporated by the OCSLA explicitly anticipates that injured employees might be eligible for both state and federal benefits. The Court also rejected Pacific's alternative argument that §1333(b) imports the LHWCA's strict situs-of-injury requirement, which provides benefits only for injuries occurring "upon the navigable waters" of the United States, finding it unlikely that Congress intended to restrict the scope of the OCSLA workers' compensation scheme through a non-intuitive and convoluted combination of two separate legislative Acts. The Court similarly rejected the Solicitor General's suggested status-based inquiry and the Third Circuit's "but for” test, holding the neither were compatible with §1333(b), and found the Ninth Circuit's “substantial-nexus" test is more faithful to §1333(b)'s text. Whether an employee injured while performing an off-OCS task qualifies (i.e. the test requires the injured employee to establish a significant causal link between his injury and his employer's on-OCS extractive operations) will depend on the circumstances of each case. Thus, the Court held it was proper for the Ninth Circuit to remand this case for the Benefits Review Board to apply the "substantial-nexus" test. Justice Scalia wrote separately to note that the majority opinion indulged in considerable understatement when it acknowledges that the 9^th Circuit’s test "may not be the easiest to administer." He went on to point out that "substantial nexus" is novel legalese with no established meaning in the present context, and that he would prefer a “proximate cause” test. Justice Thomas delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, joined. Justice Scalia filed an opinion concurring in part and concurring in the judgment, in which Justice Alito joined. (U.S. Sup. Ct, January 11, 2012) 2012 U.S. LEXIS 577

Updater Note: Richard Epstein authored a very insightful opinion analysis, which can be viewed here. I commend it to me readers as a refreshing change from my less engaging reviews.

YOU NEED A VESSEL TO SUPPORT A §905(B) CAUSE OF ACTION (CONT.)

BILLIOT V. BOH BROS. CONSTRUCTION CO., LLC

Circuit Court Opinion

Tilden Billiot was a longshoreman working for Boh Brothers Construction Co., LLC, on a marine construction project, when he died in the territorial waters of the United States. Billiot's cherry picker crane tipped over on its side and, after about six minutes of the cab dangling over the water, Billiot’s unconscious body slipped through the broken glass and into the water where he drowned. Billiot’s widow, Glenda Billiot, contended that she had a cause of action under §905(b) of the LHWCA. Boh Brothers moved for summary judgment contending that there were no genuine issues of material fact regarding the widow’s claim for "vessel negligence." The widow argued that the vessel was a cause of Billiot's drowning, considering that Boh Brothers was required to have a lifesaving vessel immediately available, including the ability to secure the worker onboard for safe transportation and immediate first aid. The court initially noted that the issue before it was not whether the widow made proper allegations of negligence against Boh Brothers, but whether any such alleged negligence, if proved, constituted "vessel negligence" within the meaning of §905(b). The court noted that the undisputed fact remained that the accident complained of occurred on the bridge deck and not on a Boh Brothers’ vessel. The court concluded that the widow had failed to come forward with even a scintilla of competent evidence tending to suggest that Billiot's death was caused by any act or omission on the part of Boh Brothers in its capacity as owner of the rescue vessel. Instead, the evidence demonstrated that Mr. Billiot's fatal injuries were all sustained before the rescue boat arrived. Accordingly and because of the complete absence of evidence on crucial elements of the widow’s 905(b) claim of "vessel negligence" being causally related to Billiot's accident, Boh Bros’ motion for summary judgment was granted [see May 2011 Longshore Update]. Glenda Billiot appealed the district court’s grant of summary judgment in favor of Boh Brothers, asserting the district court erred in failing to apply the Pennsylvania rule and/or negligence per se rule regarding violations of safety rules, which would have placed the rebuttable presumption of negligence upon Boh Brothers and that vessel negligence caused her husband’s death. The appellate court found that Billiot’s arguments lacked merit. The district court acknowledged these arguments but rejected them implicitly through its finding that Billiot had not properly shown any genuine issue of fact as to vessel negligence, a threshold requirement of her LWHCA claim. Finding that none of Billiot’s arguments on appeal properly target the district court’s finding, the appellate court affirmed in full. (5th Cir, January 31, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 1907

FIFTH CIRCUIT HOLDS THAT DEFENSE BASE ACT IS THE EXCLUSIVE REMEDY

FISHER, ET AL. V. HALLIBURTON, ET AL.

Circuit Court Opinion

Steven Fisher and Timothy Bell, who were civilian drivers in a United States military supply-truck convoy in Iraq, were killed when insurgents attacked. Decedents were working for a civilian contractor as drivers in a United States military supply-truck convoy in Iraq when insurgents attacked. State tort claims were brought on behalf of plaintiffs, decedents, their spouses, and family members, against Halliburton, Kellogg Brown & Root, Inc. and its various subsidiaries or affiliates, who employed the decedents. The district court denied defendant's motions to dismiss and for summary judgment based on the exclusivity of the Defense Base Act (DBA) remedy and preemption, after determining genuine issues of material fact existed as to whether the DBA covered the decedents’ injuries. The defendants appealed, contending that the district court erred in denying the motion to dismiss and motion for summary judgment in which it argued that the DBA provides plaintiffs' exclusive remedy and preempts all state tort claims that have been asserted. The district court certified its order regarding the DBA for immediate appeal under 28 U.S.C. § 1292(b). The appellate court reversed, holding that the DBA did, indeed, preempt plaintiffs' claims. The appellate court held that the only plausible inference to be drawn from the facts in the case was that the decedents were attacked because of their employment. Indeed, plaintiffs' case was the quintessential case of a compensable injury arising from a third party's assault. There could be no reasonable dispute that a clear connection existed between the decedents’ employment and the insurgents' attacks on their convoys. Accordingly, the attacks occurred "because of" employment. Decedents, as drivers of trucks in the convoys, suffered injuries because of their role in those operations. Thus, the injuries qualified for coverage under the DBA. Based on the DBA’s exclusivity provision, plaintiffs were precluded from pursuing their tort claims in this case. As all state-law claims were barred by the DBA, the court did not consider whether it had jurisdiction to consider the employer's challenges to other orders of the district court. The appellate court also held that coverage of an injury under the DBA precludes an injured employee from recovering from his employer under a "substantially certain" theory of intentional-tort liability. The appellate court vacated the district court order on the issue certified for appeal and remanded the case with instructions to dismiss plaintiffs' state tort claims. (5^th Cir, January 12, 2012) 2012 U.S. App. LEXIS 641

ANOTHER LONGSHOREMAN CLAIMING TO BE A SEAMAN

NAQUIN V. ELEVATING BOATS, LLC, ET AL.

Larry Naquin, Sr. worked for Elevating Boats, L.L.C.'s as a repair supervisor, where he oversaw the repair of lift boats and cranes. Naquin. often worked on board the vessels, which were usually either jacked up or moored at a dock, depending on the specific repair required. While on board, Naquin would perform inspections and repairs on various parts of the vessels, including engines, hulls, and cranes. Additionally, Naquin, a licensed crane operator, sometimes operated the cranes on board the lift boats to load or unload heavy pieces of machinery or other materials from the dock and also performed tasks traditionally assigned to the deckhands, including painting, fixing leaks, fixing cracks in the hull, chipping, and cleaning the vessels while they were stationed at the dock, as well as other routine maintenance. At the time of his alleged injury, Naquin was operating a land-based cranes to move a thirty-ton test block from an eighteen-wheeler trailer to its normal storage location. Just before the move was completed, the pedestal snapped, sending the crane toppling to the ground and into an adjacent building. As a result of the accident, Naquin allegedly suffered injuries to both his left ankle and right heel, which required surgery. Elevating Boats reported the injuries to the OWCP District Director and began paying benefits under the LHWCA. Nevertheless, Naquin filed suit asserting claims under the Jones Act, and in the alternative, reserving his claims and benefits under the LHWCA. Elevating Boats moved for summary judgment, arguing that the undisputed facts show that Naquin is not a Jones Act seaman, but a longshoreman, contending that Naquin’s undisputed testimony regarding his employment duties revealed that he did not meet either prong of the Chandris test for seaman status, and spent less than .01% of his employment at Elevating Boats working aboard vessels in navigation. Naquin opposed Elevating Boats’ motion, argued that Elevating Boats mis-characterizes the nature of his duties and that he spent about seventy to seventy-five percent of his time on board vessels, performed many of the same tasks actually performed by deckhands, that he was on board moving Elevating Boats vessels at least two to three times per week. The court rejected Elevating Boats’ arguments, regarding the first prong of the Chandris test, finding that a jury could reasonably conclude that Naquin’s duties contributed to the function of Elevating Boats’ vessels. Turning to the second Chandris prong, the court rejected Elevating Boats’ argument that Naquin only spent 0.01% of his work hours spent aboard a vessel in navigation, because that contention assumed that the only time its vessels were "in navigation" was when they were actually sailing or performing work offshore in the Gulf. The court found the totality of Naquin’s duties sufficient to raise a triable issue of fact as to whether Naquin satisfied the second Chandris prong, observing that the nature of Naquin’s employment fell somewhere between the dichotomous extremes of a land-based longshoreman and a Jones Act seaman, where reasonable minds could draw different conclusions. Because a jury could reasonably conclude that Naquin’s work contributed to the mission of Elevating Boats’ vessels, and that his connection to Elevating Boats’ fleet was substantial in terms of both its duration and nature, summary judgment was improper. Elevating Boats’ motion for summary judgment was denied. (USDC EDLA, January 3, 2011) 2012 U.S. Dist. LEXIS 211

HEADACHE BALL CAUSES VESSEL OWNER LITIGATION HEADACHE

BOLFA V. OFFSHORE MARINE CONTRACTORS, INC., ET AL.

Joseph K. Bolfa was employed as a rigger by Knight Well Services, Inc., which was contracted by Energy Partners of Delaware, Ltd. to assist in the plug and abandon operations of an Energy Partners' well. Bolfa alleged that Energy Partners contracted with Offshore Marine, Inc. and Offshore Marine Contractors, Inc. to provide the vessel and her crew to assist in the plug and abandon operations. Bolfa also alleged that he was struck in the head by the headache ball of a crane that was an appurtenance of the vessel, while he was hosing cement off the deck of the vessel. Bolfa asserted claims under §905(b) of the LHWCA, the general maritime law, and Louisiana law. The defendants moved for summary judgment arguing that Louisiana law does not apply, and that they did not breach a duty owed to plaintiff under §905(b) because the headache ball was an open and obvious condition. They argue that, because plaintiff testified that he knew about the headache ball prior to the accident and it was painted yellow, that they did not have a duty to warn plaintiff of the condition. Instead, the defendants argued that Bolfa’s carelessness caused the accident. Bolfa responded by arguing that he informed the vessel's captain about the swinging headache ball, and that the captain told him not to touch it and would look into it. Bolfa also argued that summary judgment was premature because discovery was in its early stages, and he is the only person that has been deposed in this matter. The court found that Bolfa’s testimony demonstrated that defendants may have retained active control over the cranes such that they had a duty to exercise due care to avoid exposing longshoremen to hazards arising from that equipment. Since Bolfa was the only witness who had been deposed, the court concluded there were outstanding issue of fact that were germane to the issue of defendants' exercise of active control over the cranes, and they were not entitled to summary judgment on this issue at this time. The defendants' Motion for Summary Judgment was granted as unopposed as to Bolfa’s Louisiana state law claims, and those claims were dismissed. However, defendants’ motion was denied as to Bolfa’s §905(b) claim. (USDC EDLA, January 17, 2012) 2012 U.S. Dist. LEXIS 5025

COURT FINDS RETALIATORY DISCHARGE ALLEGATION “TENUOUS”

GEORGE V. COIL TUBING SERVICES, LLC

In this case, Kenneth George brought suit against his former employer, Coil Tubing Services, L.L.C. , for retaliatory discharge. George was allegedly injured in the course and scope of his employment. Although George was released to return to work the following day, George chose to seek out another physician who placed him on a "no work" Thereafter, George filed a claim for worker's compensation benefits under the LHWCA and began receiving voluntary workers compensation benefits from his employer. Coil tubing eventually requested a second medical opinion from an independent medical examiner (IME), who found that George could return to work immediately with restrictions and limitations at a moderate level, and could return to full duty 21 days thereafter. Pursuant to its IME’s finding, Coil Services sent George a certified letter, reiterating its IME’s finding and informing George that it had a position that would accommodate his restrictions. The letter requested that George contact Coil Services within 10 days and that if he did not, Coil Services would assume that George was not interested in the position. Not having heard from George within the requested 10-day period, a follow-up letter was sent and requested George to undergo a Functional Capacity Evaluation. George never contacted Coil Services. As a result, Coil Services terminated voluntary compensation and terminated George’s employment. George brought a Motion for Summary Judgment, arguing that his termination was clearly retaliatory in nature for filing for workers compensation benefits in violation of Louisiana Revised Statute 23:1361(B). Coil Services opposed the motion, contending that George is unable to show, by a preponderance of the evidence, that his discharge was in any way related to his filing for workers compensation benefits. The court found that the facts of the case did not support entering summary judgment. Although there was a genuine dispute between the two physicians involved regarding George’s ability to work, the facts are clear that the link between George’s filing for workers compensation and his termination was tenuous. Specifically, George had received workers compensation benefits from Coil Services for six months prior to his termination and the time between his filing for benefits and his termination was seven months. Even more significant, Coil Services sent George two letters requesting communication, which he never responded to. At the very least, the court noted, George could have responded reiterating his inability to work or could have requested his physician to send a letter; however, nothing was done. This total lack of communication is questionable. For these reasons, the court denied George’s motion, holding that George was unable to assert facts sufficient to justify entering summary judgment. (USDC WDLA, January 25, 2012) 2012 U.S. Dist. LEXIS 9498

TOO MANY QUESTION OF FACT. LET THE JURY SORT IT OUT

GEORGE V. ATLANTIC RO-RO CARRIERS OF TEXAS, INC., ET AL.

Fitzroy George was working onboard a vessel, owned/operated by Atlantic Ro-Ro Carriers of Texas, Inc. and CSAL Canada-States-Africa-Line, Inc., when a crane operator allegedly negligently dropped steel pipes on him, causing injuries to his right foot. George filed suit against both entities in state court, seeking recovery under §905(b) of the LHWCA and under the general maritime law. The defendants removed George’s suit to federal court, denying liability and moving for summary judgment. The defendants asserted that George was unable to fully satisfy the elements of a longshore personal injury action brought pursuant to §905(b) of the LHWCA, as there is no evidence that the ship's crew was in active control of cargo operations when George was injured, and therefore the "active control duty" was not applicable to this case. Additionally, defendants maintained that neither the "intervention duty" nor the “turnover duty” were at issue in the case. Based on George’s deposition testimony and that of the crane operator, defendants argued that the condition that George alleged caused his injury was open and obvious. George opposed the motion, arguing that the "turnover duty" is applicable to his case and that the crane in his hold was defective, as evidenced by the testimony of the crane operator. George also argued that even if the crane defects were open and obvious, no reasonable alternative existed for him and had any longshoreman refused to use the crane to perform the cargo operations, they would have been fired. The court observed that the parties had submitted divergent theories regarding the stevedores' knowledge and responsibilities. As evidenced by the differing accounts of the events, the court found that multiple issues of fact existed in the case. Which of the two interpretations of the deposition testimony is true, and whether that interpretation satisfies the "open and obvious" exception to vessel liability, were both questions of fact for a jury to decide. As a result, the court denied the Motion for Summary Judgment. (USDC EDLA, January 5, 2011) 2012 U.S. Dist. LEXIS 1251

IF YOU ARE GOING TO RE-WELD CHAIRS, YOU HAD BEST DO IT RIGHT

MATHERIN V. MOON RISE SHIPPING CO. S.A., ET AL.

This action involves injuries allegedly sustained by Yonni Mathurin as a result of a fall while aboard a vessel owned by Moon Rise Shipping Co. Mathurin was employed as a dock attendant for HOVENSA. In furtherance of his duties as a dock attendant (loading master) for HOVENSA, Mathurin boarded the Moon Rise vessel to attend a key meeting. Near the end of the meeting, the left front leg of the chair upon which Mathurin had been sitting broke and the chair collapsed, causing Mathurin to fall to the floor. Mathurin filed suit under §905(b) of the LHWCA, claiming Moon Rise had actual or constructive knowledge that the chair which broke and resulted in his fall constituted a hazard. Moon Rise moved for summary judgment dismissing the action on the grounds that, under any applicable negligence standard, they neither created nor had knowledge of the allegedly dangerous condition, and therefore could not be held liable as a matter of law. The court denied the motion for summary judgment, noting that post-accident inspection of the chairs, including the one upon which Matherin had been sitting, revealed that all of the chairs appeared to have been re-welded at the joints with the legs. At some point in the past, the right rear leg of the chair at issue had cracked, and a decision was made to re-weld that leg, as well as all the legs of the other chairs. In addition, some of the chair legs were provided with additional support in the form of cross-bars. The court observed that the welding was done by person with very poor welding skills, demonstrated by cracking at the site of the secondary welds, as well as a lack of fusion. Given this evidence, the court concluded that a reasonable jury could determine that, at some undetermined point in the past, Moon Rise was made aware of problems with the chairs and ordered that secondary welds be made to the chair legs, and that, concurrent or subsequent to that time, additional cross bar support be applied to some of the chairs. The court found that an issue of fact existed as to whether or not Moon Rise knew or should have known of a hazardous condition on the vessel, which resulted in the injury to Matherin. (USDC VI, January 5, 2012) 2012 U.S. Dist. LEXIS 1538

DBA CLAIMANT LACKS CREDIBILITY

TARVER V. SERVICE EMPLOYEES INTERNATIONAL, INC., ET AL.

Franklyn Tarver worked as a bus driver in Kuwait and Iraq for Service Employees International, Inc. ("SEII"). Tarver filed a claim for benefits under the LHWCA, as extended by the Defense Base Act, 42 U.S.C. § 1651. Tarver claimed that he was entitled to benefits because he was disabled due to a right knee injury, hypertension, hepatitis C, and depression and stress, and that all of these conditions were attributable to his employment. Tarver alleged that, on two occasions, he came into contact with blood on the bus he was driving during his employment. However, Tarver did not report either of the alleged exposures on the bus to SEII. Tarver also claimed two other exposures to human blood during his employment, both of which he alleged occurred in his living quarters, which he shared with other employees. Finally, Tarver claimed that he also injured his right knee during his employment, while walking to the restroom during an airplane flight that encountered turbulence, but again did not report the incident. Tarver had a hearing before an ALJ, during which he admitted to intravenous drugs in 1978. The ALJ heard the testimony of a medical expert, who testified that there are no reported instances of hepatitis C transmission through intact or cut skin, but rather that transmission occurs through injection of the virus into the body. The expert concluded that Tarver's intravenous drug use in 1978 was the most likely source of his infection and stated that it is not uncommon to be asymptomatic for twenty or thirty years after contracting the disease. As for Tarver's hypertension, the expert testified that Tarver's blood pressure reading of 164/90 at his pre-deployment examination would be consistent with hypertension. A psychiatric evaluation of Tarver did not disclose PTSD, major depression, or any other disorder, although he did display some paranoia. Tarver was simply described as a "symptom magnifier." The ALJ denied benefits to Tarver on causation grounds, holding that Tarver had failed to show that his impairments arose out of his employment. The ALJ also held that Tarver had not established a compensable injury. Tarver timely filed a motion for reconsideration with the ALJ, submitting several additional documents in support of his positions regarding his hypertension and hepatitis C. The ALJ considered all of the newly submitted documents and concluded that none were material so as to justify reconsideration of the previous order. Tarver appealed the ALJ's decision to the BRB, arguing that the ALJ erred in denying benefits and that SEII had withheld relevant documents that would establish a causal connection between his medical impairments and his employment with SEII. The BRB affirmed the ALJ's decision and Tarver's timely motion for reconsideration was denied. Tarver filed a petition for review with the 5^th Circuit Court of Appeals, which granted SEII’s motion to transfer the petition for review to the district court, noting it lacked jurisdiction until the United States District Court issued a final ruling on Tarver's appeal. The district court reviewed the record, noting the ALJ denied benefits for Tarver's knee injury based on his finding that the injury occurred after Tarver's employment ended, finding Tarver's testimony not credible that Tarver had injured his knee on three occasions and had failed to report the injuries at subsequent doctor's appointments. The court held that the ALJ's determination was supported by substantial evidence. The court also affirmed the ALJ’s conclusion that there was no competent evidence that Tarver's hepatitis C was caused by his work for SEII. The ALJ's determination that Tarver did not make out a prima facie case of causation wais supported by substantial evidence. The court also found that the psychiatric evidence demonstrated that Tarver did not have any mental disorder that was related to his employment with SEII, but rather that his stress or mental or emotional issues were attributable to his diagnosis of and treatment for hepatitis C. Finally, the court affirmed the ALJ's holding that Tarver's hypertension pre-existed his employment, based upon Tarver's pre-deployment physical examination and the medical testimony. Tarver’s petition for review was dismissed with prejudice. (USDC SDTX, December 30, 2011) 2011 U.S. Dist. LEXIS 149709

NO PRIORITY FOR SPECIAL FUND ASSESSMENTS IN BANKRUPTCY PROCEEDING

SOLIS V. THE HOME INSURANCE COMPANY, ET AL.

The Home Insurance Company was declared insolvent in 2003 by the New Hampshire Superior court, which ordered its liquidation and appointed the New Hampshire Commissioner of Insurance as liquidator. During the subsequent insolvency proceeding, the United States Department of Labor filed a proof of claim seeking over $2.6 million in assessments allegedly owed by Home to the Special Fund, pursuant to the LHWCA. Applying state law, which establishes the priority in which payments from the assets of liquidated insurers are to be made, the Liquidator assigned DOL's claim to priority Class III. Since Home's assets were thought to be insufficient to cover Class III claims, the DOL brought suit against Home and the Liquidator, seeking a declaration that the LHWCA preempted the state's priority-setting statute. The DOL also asserted, on alternative state law grounds, that its claim against Home's assets is entitled to either a Class I or Class II priority. In response, defendants pointed out that the Assessment Provision of the LHWCA contains no explicit priority requirement or impliedly create one. Absent such a priority requirement, defendants contended there is no conflict between federal law and the state's priority law. So, no federal preemption issue arises. The court agreed with defendants that there is no express preemption, because neither §944, nor the Assessment Provision of subsection 944(c)(2), contains explicit preemptive language. However, DOL argued that its position rested, instead, on the implied preemption theories of "impossibility" and "obstacle" preemption. Specifically, DOL argued that it is impossible for the defendants to comply with both their duty under §944 to pay Home's assessment to the Special Fund and their duty under the state's priority law to pay Class I and Class II claims ahead of DOL's claim. In addition, DOL contends that, in the present case, the state law stands as an "obstacle" to the purposes and objectives of the federal law. The court rejected this argument, finding that since neither §944 as a whole, nor its Assessment Provision in particular, assigns a preferential priority status to DOL's claim there is no actual conflict with the state's priority law assigning DOL's claim Class III status. In sum, it is not "impossible" for defendants to comply with both the state and federal laws because federal law does not command something that state law forbids. Additionally, the state's priority law, as applied in the case, poses an obstacle neither to the primary purposes of the Special Fund nor to the Assessment Provision's subsidiary purpose of spreading Special Fund costs among industry participants. As to both its impossibility and obstacle preemption arguments, therefore, the court finds that DOL had failed to overcome the presumption that Congress did not intend, when it created an assessment mechanism to fund the Special Fund, to displace state priority laws operating in the field of insurer insolvency proceedings, a field traditionally occupied by the states. Even assuming that §944, and the Assessment Provision of subsection 944(c)(2), preempt, under normal preemption principles, the state's priority law, the court noted that the McCarran-Ferguson Act prohibited that result. The court concluded that the DOL had failed to show a clear and manifest Congressional intent to preempt the state priority law in §944, or in the Assessment Provision of subsection 944(c)(2). That law, in any event, is protected from federal intrusion under the McCarran-Ferguson Act. DOL's motion for summary judgment was denied. (USDC NH, January 27, 2012) 2012 DNH 120; 2012 U.S. Dist. LEXIS 9551

MEDICAL TRAVEL REIMBURSEMENT RATE DECREASED

IRS INCREASES MILEAGE REIMBURSEMENT RATE EFFECTIVE 1/1/12

On December 9, 2011, the Internal Revenue Service released the optional standard mileage rates to use for 2012 in computing the deductible costs of operating an automobile for business, charitable, medical or moving expense purposes. Beginning January 1, 2012, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

• 55.5 cents per mile for business miles driven;

• 23 cents per mile driven for medical or moving purposes; and

• 14 cents per mile driven in service to a charitable organization.

The charitable standard mileage rate is set by law. The standard mileage rates for business, medical and moving purposes are based on an annual study of the fixed and variable costs of operating an automobile.

Updater Note: You can check out the revised IRS mileage rates here. The Office of Government-wide Policy, GSA also sets mileage reimbursement rate for use of a privately owned automobile (POA) on official travel. GSA published their 2012 rates, announcing no change in the rates for 2012, on January 17, 2012, and you may review the bulletin here. However, by law, GSA may not exceed the standard mileage reimbursement rate for a privately owned automobile (POA) established by the Internal Revenue Service (IRS). Which rate should you be using to reimburse travel under the Longshore Act? That is a question you may want to consult with your attorney on.

OFFICE OF ADMINISTRATIVE LAW JUDGES

RECENT SIGNIFICANT DECISIONS

Digest #238

The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #238. 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 . . .

5^TH CIRCUIT REVERSES ARBITRARY & CAPRICIOUS HOLDING

MANDERSON V. CHET MORRISON CONTRACTORS, INC.

Circuit Court Opinion

Leon Manderson began working as chief engineer aboard a Chet Morrison Contractors, Inc. (CMC) dive vessel. Manderson contended that he worked on a 24/7 basis while engaged as the sole licensed engineer. Manderson filed suit alleging CMC failed to adequately man the dive vessel engine room resulting in Manderson having to work weeks at a time as the sole caretaker of the engine room and remain on call 24/7, all in violation of 46 CFR 15. Manderson also claimed that CMC violated the Jones Act and claimed that his ulcerative colitis and diabetes were exacerbated by his lack of sleep which was a result of his working 24/7 aboard CMC’s vessel. Manderson further contended that CMC’s persistent violation of work hours statutes and its failure to follow U.S. Coast Guard regulations designed for the safety of seaman was negligence per se. and that CMC’s decision to operate the dive vessel in violation of its Certificate of Inspection and the manning statutes rendered the vessel unseaworthy. Manderson also sought punitive damages for CMC’s arbitrary and capricious denial of maintenance and cure. CMC maintained that it did not violate Coast Guard work/rest hour regulations, in that Manderson always had the assistance of other vessel crew members available to him, such as able-bodied seaman. CMC also argued that Manderson cannot establish a causal link between any negligence or unseaworthiness and his medical condition and that Manderson’s history of Hepatitis C, ulcerative colitis, diabetes, and coronary artery disease were not caused by or related to any of his work related activities aboard their vessel. As to maintenance and cure, the CMC argued that there is no evidence that it caused or contributed to any aggravation of Manderson’s pre-existing conditions such that maintenance and cure would be available. CMC insisted that Manderson failed to reveal his pre-existing history of high glucose levels and diabetes at the time he was hired. Following a two-day bench trial, the district court denied relief under the Jones Act and general maritime law, but awarded maintenance and cure and attorney’s fees incurred in obtaining that relief. Regarding its attorney’s-fees finding the court found CMC had acted “in an arbitrary and capricious manner in failing to pay maintenance and cure” and, as a result, awarded Manderson $110,950 in attorney’s fees and costs on those claims. The court found that CMC was aware of Manderson’s ulcerative colitis at the time of his application for employment and held that Manderson was entitled to maintenance and cure. Manderson appealed, challenging the denial of his claims under the Jones Act and general maritime law. CMC challenged the amount awarded for cure; attorney’s fees being awarded; and the amount of that award. The appellate court initially reviewed the denial of Manderson’s Jones Act and unseaworthiness claims and, based on its review of the record, found that it was not left with the requisite “definite and firm conviction that a mistake had been made”. Accordingly, the findings denying the Jones Act and unseaworthiness claims were not clearly erroneous. The appellate court held that the district court did not clearly err in finding Manderson did not establish a violation of any statute or Coast Guard regulation. Therefore, it was not necessary to address negligence per se, comparative fault, or burden shifting. It was also plausible for the court to find causation was lacking. In a pre-trial order the district court had granted Manderson’s motion in limine, precluding CMC from referring to or seeking to introduce evidence of payment by Manderson’s medical insurers of his medical expenses. CMC challenged the district court’s application of the collateral-source rule for determining the amount of cure awarded Manderson. In an issue of first impression for the appellate court, CMC contended the cure award should not have included the difference between the amount Manderson’s medical providers charged and the lesser amount they accepted from his insurer as full payment. The appellate court agreed with CMC’s assertion, noting that while there was no case law on point, it had repeatedly held an injured seaman may recover maintenance and cure only for those expenses “actually incurred”. Accordingly, the relevant amount of cure is that needed to satisfy the seaman’s medical charges. Thus, in Manderson’s case, regardless of what his medical providers charged, those charges were satisfied by the much lower amount paid by his insurer. Consequently, the appellate court held that the district court erred by awarding the higher, charged (but not totally paid) amount. The appellate court modified Manderson’s award of cure accordingly. Finally, the appellate court addressed CMC’s contest of the district court’s “arbitrary-and-capricious” holding and its contention that the district court erred because: it made no underlying findings in support of that ultimate finding; and the record does not support it. The appellate court initially noted that CMC presented evidence at trial to support its contention that Manderson was not owed maintenance and cure. Although the district court ultimately rejected CMC’s contentions, and CMC’s appeal did not challenge the court’s awarding maintenance and cure, the supporting evidence for CMC’s contentions cuts against the related arbitrary-and-capricious finding. Furthermore, upon receiving a formal demand for maintenance and cure from Manderson’s counsel, CMC promptly referred the matter to its underwriter to investigate the claims, and the underwriter did so. The appellate court concluded that CMC’s conduct could not be found to be “egregiously at fault,” “recalcitrant,” “willful,” “persistent,” etc. Accordingly, the court held that the requisite bases were lacking for, and the district court clearly erred in, finding CMC arbitrary and capricious in denying maintenance and cure to Manderson. The court therefore vacated the district court’s award of attorney fees. (5^th Cir, January 3, 2011) 2012 U.S. App. LEXIS 18

Updater Note: I commend to my readers the important issue of first impression decided in this case - that the employer is only responsible for those charges satisfied by an insurer’s reduced payments to the medical providers, regardless of what the seaman’s medical providers originally charged. A recurring issue in personal injury litigation is the amount of medical expenses a plaintiff is entitled to recover from the defendant. The health care providers charge or bill the plaintiff for the treatment provided, but typically accept as payment in full significantly less from insurers or self-insured employers. It does not strain the imagination to realize that awards based on the invoiced amount will result in a windfall to the plaintiff based on the spread between the amount billed and the amount accepted by the health care provider. All too often, plaintiff’s counsel come into court with listings of gross medical expenses, ignoring the fact that audited and reduced medical expenses already paid, have fully satisfied the medical providers. There is now precedent to challenge this type of windfall to the seaman. You also have to love the fact that the arbitrary and capricious ruling was thrown out in this case. I commend it to you, Ginny Berrigan

YOU SAID YOURSELF IT WAS YOUR OWN “DUMB, STUPID MISTAKE.”

MOORE V. OMEGA PROTEIN, INCORPORATED, ET AL.

Circuit Court Opinion

This case arose from an ankle injury suffered by William Moore aboard a commercial fishing vessel owned and operated by Omega Protein, Inc.. Moore alleged that he was injured when his leg became caught in the coil of a rope he was using to secure the vessel to a piling. Moore filed suit, bringing a claim for negligence under the Jones Act, alleging that his accident was caused by the negligence of the vessel's master, and a claim of unseaworthiness, alleging that the accident was caused by the condition of the vessel. The case was tried to a jury and the jury returned a unanimous verdict in favor of the Omega. The district court entered judgment and dismissed Moore's claims with prejudice. The court also denied Moore’s motion for a new trial finding that the verdict was not against the great weight of the evidence. Moore appealed the district court’s judgment, appealing only the denial of his motion for a new trial. In response, Omega filed a conditional cross-appeal, arguing that the district court erred in refusing to include a jury instruction on comparative fault. The appellate court found that there was evidence in the record supporting the jury's finding that Moore’s accident was not caused by the negligence of a member of the crew and that the equipment and conditions on the vessel were reasonably safe for their intended purpose. Other evidence adduced at trial indicated that Moore was sufficiently trained and experienced for his job and that attaching the line to the piling was normally a one-person task. Based upon the trial record, the appellate court declined to conclude that there was an "absolute absence" of evidence supporting the jury's verdict. Therefore, given the highly deferential standard of review, the appellate court affirmed the district court's judgment. The issues raised in the conditional cross-appeal were dismissed as moot. (5^th Cir, January 20, 2012, UNPUBLISHED) 2012 U.S. App. LEXIS 1145

U.S. ENTITLED TO JUDGMENT ON CLAIMS AGAINST DREDGER

UNITED STATES OF AMERICA V. RENDA MARINE, INC.

Circuit Court Opinion

Renda Marine, Inc. contracted with the Army Corps of Engineers to dredge a portion of the Houston Ship Channel and to construct containment levees and other structures at a disposal facility for dredge material. Renda experienced difficulties with the dredging and construction work, including allegedly unexpected site conditions that made completion of the work at the original contract price impossible. Renda submitted its claims for additional compensation to a contracting officer ("CO") pursuant to the Contracts Dispute Act ("CDA"), 41 U.S.C. § 601, et seq. The CO issued a unilateral contract modification in favor of Renda that increased the contract price by $3,083,833. The Army Corps of Engineers paid Renda this amount. Unsatisfied with the decision, Renda filed suit in the Court of Federal Claims ("CFC") to recover an additional $906,364. The CFC determined that Renda was entitled to neither the additional $906,364 it sought, nor the equitable adjustment of $3,083,833 made by the CO. The United States moved to enforce a decision of a contracting officer (CO) on counterclaims against Renda and the decision of the CFC on the government's overpayment claim. Renda appealed the denial of its motions for partial dismissal and summary judgment and the grant of judgment on the pleadings to the government. Because the government could not take legal action on its claim until it first made it the subject of a decision by a contracting officer (CO), time under 28 U.S.C.S. § 2415(a) could not run against the government until it was procedurally possible for it to sue. Because the government filed suit within 6 years of the CO's decision on the counterclaim, finding that Renda owed the government, the government's suit to enforce the CO's decision was timely. It was not obvious from the CO's decision letter whether the retainage was an offset, and any effort to make that determination would require a revisitation of the merits of the CO's decision. Renda did not appeal that decision, and could not collaterally attack it through the federal suit. The appellate court held that when Renda filed suit in the CFC for additional money, the CFC considered the entire amount awarded pursuant to a modification, and ultimately found that Renda was entitled to less than the CO granted. Renda’s CFC appeal put its entire award at issue, thus, the district court had subject matter jurisdiction over the government's overpayment claim and properly granted judgment to the government that claim. The district court's judgment was affirmed. (5^th Cir, January 13, 2012) 2012 U.S. App. LEXIS 796

IT’LL BE VOID CAUSE I’M A DRUNK. I KNOW IT. HOPE I DON’T BLOW IT (CONT.)

HARRINGTON V. ATLANTIC SOUNDING CO., INC., ET AL.

In his ongoing Jones Act case [see February 2011, May 2010, and October 2007 Longshore Updates], Frederick J. Harrington, Jr. moved to compel his former employer, Atlantic Sounding Co., Inc., to produce videotapes made while he was under surveillance by a private investigator they hired, as well as any written reports of that surveillance. Atlantic Sounding opposed the motion on the ground that the videotapes and reports were work product, and that Harrington had not established a basis for overcoming the qualified protection afforded to such materials. The court initially noted that the work-product doctrine, as articulated in FRCP 26(b)(3)(A), provides qualified protection for documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative. Given this definition, the court had no difficulty concluding that the surveillance materials at issue here fall within the scope of work product. The videotapes are "tangible things" and the reports are "documents." They were prepared by a private investigator who was hired by Atlantic Sounding to provide surveillance services, and who thus fell comfortably within the meaning of "representative" and/or "agent" of Atlantic Sounding. There was also no question that the surveillance materials were prepared "because of existing or expected litigation," which is the standard in this circuit for determining whether the "in anticipation of litigation" requirement is met. The court went on to note that the work product protection afforded to the surveillance materials is not absolute, but rather qualified, because discovery of work product may be obtained if the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means. Thus, where a party intends to introduce surveillance tapes at trial, either as "substantive" evidence or solely for impeachment purposes, virtually all courts have found that the "substantial need" requirement is satisfied and that the tapes must be produced. However, the court noted that Atlantic Sounding had unconditionally asserted that they would not use some of the videotapes for any purpose whatsoever at trial, and wish to reserve decision on whether they will use others until after Harrington has completed his deposition. The court held that there was no basis for compelling production of any of the videotapes at this point. The court went on to hold that if Atlantic Sounding eventually chose not to use any videotapes at trial, none need be produced. Finally, as to the investigator's written surveillance reports, the court found that Harrington has offered no substantial need that overcame the work product protection afforded to those materials, and they therefore need not be produced. Harrington’s motion to compel production of surveillance evidence was denied. (USDC EDNY, December 30, 2011) 2011 U.S. Dist. LEXIS 149743

DOUBLE DIPPING SEAMEN ARE FINALLY BEING STOPPED BY MCCORPEN

KOSTOSKI V. STEINER TRANSOCEAN, LTD.

Ljupco Kostoski, a seaman, filed a three-count complaint, against his former employer Steiner Transocean Ltd., for negligence, failure to provide maintenance and cure, and failure to treat. Steiner filed a counterclaim against Kostoski arguing that it had paid Kostoski maintenance and cure for a right leg injury and that an undisclosed preexisting injury is directly related to the "new" injury. The counterclaim also specifically cited to McCorpen, seeking to recoup the maintenance payments under a theory of unjust enrichment. Kostoski moved to dismiss Steiner’s counterclaim under FRCP12(b)(6), arguing that it cited only the bare elements of a cause of action without factual support. The court rejected this argument, finding that the counterclaim stated the date on which Kostoski submitted to a physical examination and was declared fit for duty, alleged that Kostoski did not disclose any preexisting injuries during the examination, and further asserts that through discovery Steiner had learned that Kostoski was previously treated for right leg pain. The counterclaim further alleged that Steiner had paid Kostoski maintenance and cure for a right leg injury and that the preexisting injury is directly related to the "new" injury. The court concluded that this was enough factual material to infer each element of a McCorpen claim and to put Kostoski on notice of the same. Kostoski also argued argues that Steiner had not pled its McCorpen claim with particularity, as required by FRCP 9(b). The court also rejected this argument, noting that Rule 9(b) provides that conditions of a person's state of mind can be generally alleged. The fact that Steiner specifically cited to McCorpen in its counterclaim was held to be sufficient to put Kostoski on notice of this claim. Because the counterclaim satisfied Rule 9(b)'s particularity requirement and contained sufficient factual material to suggest that Kostoski knowingly concealed his condition under McCorpen, the court denied Kostoski’s motion to dismiss the counterclaim or convert it to a motion for summary judgment. Kostoski was ordered to timely answer Steiner’s counterclaim. (USDC SDFD, January 11, 2012) 2012 U.S. Dist. LEXIS 3533

Updater Note: Another great McCorpen decision, allowing the employer to proceed in a counterclaim for reimbursement of maintenance and cure already paid. We need more!

COURT FINDS EMPLOYER’S DENIAL OF SECOND SURGERY REASONABLE

REDNER V. ICICLE SEAFOODS, INC.

Robert Redner was working for Icicle Seafoods when he allegedly injured his back in the course of a short ride in a small skiff across rough seas. He did not report any injury or back pain at the time, and did not go to the infirmary for any care for back pain until two weeks later. He had been treated for back pain numerous times over the previous four months, but did not fill out any injury reports. Redner was eventually diagnosed severe degenerative changes with spondylolistheses at L4-5. His treating physician opined that these conditions probably preexisted the Redner’s reported work injury but the injury could have aggravated the conditions and rendered them symptomatic. Redner was initially treated conservatively, but finally underwent a laminectomy and fusion. Four month after his surgery, Redner was found to be at maximum medical improvement. Shortly after being found at MMI, Redner switched doctors and his new doctor recommended a fascectomy and multi-level fusion, for an alleged disc herniation. Icicle Seafoods declined to authorize this second surgery, and filed a motion to request a ruling from the court that it is not required to pay for it as part of its maintenance and cure obligation. Icicle introduced evidence from its medical expert showing that, up through the time of Redner’s postoperative MRI following his initial surgery, no herniated disk was noted by anyone. The court found Icicle’s expert extremely credible and noted that Redner had previously been declared at MMI by his original surgeon. The court also found that there was no evidence connecting Redner’s alleged herniated disk to the boat ride. The court granted Icicle’s motion regarding their obligation to provide maintenance and cure, in the form of the second surgery recommended by Redner’s new physician. The court noted that issues of causation, and of whether Redner had reached MMI following his surgery, were questions of fact for the jury to determine. In the interim, the court held that Icicle was acting reasonably in declining to pay for the second recommended surgery. (USDC WDWA, January 11, 2012) 2012 U.S. Dist. LEXIS 3373

Updater Note: Great decision. It is not often we see these jurists question the necessity of surgery or the casual relationship of the need for that surgery to the alleged work injury.

POTENTIAL MCCORPEN DEFENSE DEFEATS PUNITIVE/COMPENSATORY DAMAGES

ROSE V. MISS PACIFIC, LLC, ET AL.

Perry L. Rose, a seaman employed by Miss Pacific, LLC, slipped and allegedly injured his left knee on board a fishing vessel, while the vessel was in port. Rose’s treating physician eventually recommended surgery of the left knee because of a torn meniscus. Approximately two weeks after the incident, Rose's claim for maintenance and cure benefits was denied based on his failure to disclose his prior knee injuries and surgeries. Rose filed suit, against both his employer and Pacific Fishing, seeking damages under the Jones Act and general maritime law alleging injuries and damages due to negligence and unseaworthiness and seeking maintenance and cure and unearned wages. Rose also sought compensatory damages, punitive damages, attorney fees, prejudgment interest, and costs and other disbursements. Both defendants moved for partial summary judgment on the claims for maintenance and cure and unearned wages and on all claims alleged against Pacific Fishing, based on the undisputed facts that Rose fraudulently concealed his material preexisting medical history and the undisputed fact that Pacific Fishing was not Rose’s Jones Act employer. The evidence disclosed that Rose worked as a manual laborer prior to his employment by Miss Pacific and over the years sustained some injuries which healed and never limited his ability to work. Rose had surgeries on both knees, including arthroscopic surgery to the left knee to remove the prepatellar bursa and a later arthroscopic surgery to correct an internal derangement. The court found that while the defendants had submitted some evidence to support their contention that Rose knew about the importance of disclosing his prior left knee injuries, Rose had submitted evidence that the employer had some knowledge of Rose's left knee surgeries and pre-existing gout, creating a genuine issue of material fact exists as to whether the pre-hire interview of Rose and later medical disclosure requests were designed to elicit information that Rose intentionally chose not to disclose. The court also found there was a genuine issue of material fact exists as to what Rose disclosed and whether that disclosure was material. Differing medical expert opinions also created a fact issue concerning causation. Due to the genuine issues of material fact as to all three McCorpen elements, the court concluded that the defendants were not entitled to summary judgment on their fraudulent concealment defense. However, since the defendants submitted evidence, although disputed, that supported each of the three elements of the fraudulent concealment defense, the court granted the defendants' motion for summary judgment as to Rose's claims for punitive damages Moreover, based on the reasonable assertion of the fraudulent concealment defense, the court concluded that Rose could not recover compensatory damages or attorney fees. Pacific Fishing sought dismissal of all claims alleged against it on the basis that it was neither the shipowner nor the employer and, thus, is not a proper party. With respect to whether Pacific Fishing is the shipowner, the court found that no factual dispute existed. However, with respect to whether Pacific Fishing is Rose's employer, the court found that a factual dispute existed, noting that Rose had submitted other evidence which casts doubt on Pacific Fishing's role, including Pacific Fishing's name at the top of two fishing agreements that he was required to execute. The court granted defendants’ Motion for Partial Summary Judgment as to compensatory damages, punitive damages and attorney fees and as to all claims alleged against Pacific Fishing as a shipowner. (USDC OR, January 10, 2012) 2012 U.S. Dist. LEXIS 2997

COURT UPHOLDS VENUE SELECTION AGREEMENT IN JONES ACT CASE

RILEY V. TRIDENT SEAFOODS CORPORATION

David L. Riley worked as a seaman crew member aboard Trident Seafoods Corporation’s fishing vessel on three different occasions. Riley entered into employment agreements with Trident each of the three times he commenced employment with the company, which contained a venue selection clause that provided in relevant part that any lawsuit for illness, injury or death arising under the Jones Act, the General Maritime Law, or otherwise, shall be only in the federal or state courts in King County, Washington. Riley filed suit in the District of Minnesota, under general maritime law and the Jones Act, seeking damages associated with the injuries he allegedly sustained while working aboard the Trident’s fishing vessel. Trident moved the court to dismiss or transfer venue to the Western District of Washington, seeking to enforce the venue selection clause in Riley’s employment agreement. Riley argued that the venue selection clause was barred by FELA, as incorporated into the Jones Act and unenforceable as unreasonable and unjust. The court initially noted that while many of the provisions of FELA were expressly incorporated into the Jones Act, venue was not such a provision. Until recently, the Jones Act contained its own specific venue provision. Relying on this separate venue provision, the majority of courts have found that FELA's prohibition against venue selection clauses is not incorporated into the Jones Act. The court also found that the 2008 repeal of the Jones Act venue provision was not meant to alter the existing law. Accordingly, the Court found that FELA's venue provisions should not be read into the Jones Act and the Jones Act did not void the venue selection clause in Riley's agreement with Trident. Additionally, the court found that Riley had failed to show the sort of fraud or coercion by Trident necessary to overcome the presumption of validity of the venue selection clause. Nor had Riley shown that enforcement of the venue selection clause would deprive him of his day in court. Finally, the court found that enforcement of the venue selection clause would not contravene a strong public policy of the forum. Noting that it the discretion to either dismiss or transfer this case, the court concluded that justice would be best served by transfer, rather than dismissal. Trident’s Motion to Dismiss or Transfer Venue was granted and the court ordered the case transferred to the Western District of Washington. (USDC MN, January 9, 2012) 2012 U.S. Dist. LEXIS 9002

PLAINTIFF’S CAN’T CREATE TRIABLE ISSUE IN CASE OF SEAMAN LOST AT SEA

KENNEDY, ET AL. V. LAFAYETTE WORKBOAT RENTALS, INC.

Brandon Mouton was employed as a seaman by Lafayette Workboat Rentals, LLC, and assigned to a barge doing oil cleanup, when he disappeared off the deck of the barge, while the barge was approximately 2.5 to 3 miles off shore, and was never seen again and his body was never found. Mouton’s parents filed suit against Lafayette, on behalf of Mouton's estate and in their individual capacities, alleging Mouton's death was caused by negligence or the unseaworthiness of the barge. Lafayette denied liability and moved for summary judgment on plaintiffs' claims of unseaworthiness and Jones Act negligence. Citing discovery responses, Lafayette contended that there was a complete lack of evidence regarding the circumstances of Mouton's disappearance and accordingly a complete lack of evidence that the barge was unseaworthy or that Lafayette was negligent in any way that contributed to the disappearance. In opposition, the plaintiffs attempted to articulate genuine factual disputes regarding the timing of Mouton's disappearance, arguing that summary judgment is inappropriate because the doctrine of res ipsa loquitur permits an inference of negligence, and because Lafayette may be liable on a theory of failure to rescue Mouton. The court pointed out that, while plaintiffs were correct that there is uncertainty regarding how, when, and from where Mouton disappeared, that uncertainty supported the motion for summary judgment and was not an impediment to it. Even if the trier of fact heard testimony from all witnesses, assessed their credibility, and decided whether Mouton was last seen at 8:00 a.m. or 8:30 a.m., there was still no suggestion from the record that any of those witnesses could testify when Mouton disappeared and under what circumstances. In the absence of any such evidence, a reasonable jury could not link the disappearance to any condition of the boat or to any action or inaction by Lafayette. Plaintiffs also failed to produce any evidence regarding Lafayette’s efforts to search for Mouton that might possibly support a finding of a breach of that duty. Lafayette’s motion for summary judgment was granted. (USDC EDLA, January 3, 2011) 2012 U.S. Dist. LEXIS 210

COURT REJECTS APPLICATION OF “FLOTILLA DOCTRINE” IN LIMITATION ACTION

IN RE: AEP RIVER OPERATIONS, LLC

AEP River Operations LLC was the bareboat charterer of a tow boat was towing three barges of scrap metal through the Houston Ship Channel when one of the barges in tow hit an electrical tower owned by CenterPoint Energy Houston Electric, LLC. AEP commenced this litigation by filing a complaint for exoneration from or limitation of liability, asserting that it was not liable for the damage caused or, alternatively, that its liability is limited by statute to the value of the tug and her freight then pending, which it stipulated to be $2,700,000. The stipulated value of the towing vessel is not contested. However, CenterPoint moved to increase the limitation fund, declaring that the estimated cost of repair will exceed $5,000,000, and arguing that the security must be increased to include the value of the three AEP barges in tow at the time of allision; or another $1,095,000. AEP countered that the term "vessel" is it limited to the tug itself. CenterPoint claimed the flotilla of vessels included the barges in tow. The court observed that in "pure tort" cases, where no contractual or consensual relationship exists between owner and claimant, only the offending vessel itself need be tendered for limitation purposes, citing Liverpool for the proposition that for the purposes of liability the passive instrument of the harm does not become one with the actively responsible vessel by being attached to it. This rule was not changed by common ownership of the vessels in the flotilla. The court went on to point out that the rule is different when there is a contractual relationship between the claimant and the offending vessel owner. This was the situation in Sacramento Navigation, decided eight years after Liverpool. The court concluded, contrary to CenterPoint's claim, that Sacramento Navigation in no way overruled or "superseded" Liverpool. CenterPoint alleged that AEP was negligent in its operation of its tug, and asserted a claim based upon maritime collision and tort principles. Neither CenterPoint nor AEP alleged the existence of any contractual arrangement between them, and CenterPoint did not base any claim on a contractual obligation. Finding this to be a "pure tort" situation, where there was no contractual obligation between the claimant and the offending vessel owner, CenterPoint's motion to increase security was denied. (USDC SDTX, January 23, 2012) 2012 U.S. Dist. LEXIS 7488

COURT GIVES WIDOW ANOTHER CHANCE TO PROVE HER FRIVOLOUS CLAIMS

IN RE: JAMES T. ANDERSON

James T. Anderson purchased a catamaran from her South African builder and, pursuant to South African law, Anderson took title to the catamaran prior to departure. The purchase price included delivery by Voyage Yachts' "in-house delivery crew" to Port Townsend, Washington. When it came time for delivery, however, Voyage Yachts informed Anderson that its crew would not be available to deliver the ship and, instead, contracted with Reliance Yacht Deliveries, Ltd., to deliver the catamaran to Anderson. Unfortunately, the crew never reached their destination. The ship was caught in a severe storm, in winds in excess of 100 mph, and was believed to have capsized and broken apart. The entire crew is believed dead, though, only one of the crew members, Richard Beckham's, body was ever recovered. Anderson filed a Motion for Limitation and Summary Judgment, pursuant to the Limitation of Liability Act, asking the court to conclude that he was entitled to limit his liability for any action arising from the loss of his vessel and its crew to the catamaran’s value at the end of the voyage. He also asked the court to dismiss the Jones Act and common law wrongful death claims brought against him by Sonia Beckham, the widow of Richard Beckham. Anderson raised three points in his motion for summary judgment. First, he contended that he is entitled to limit his liability pursuant to §30511 because there was no evidence that any unseaworthy condition caused the loss of the ship and its crew or, if there is, that he had no "privity or knowledge" of that condition. Second, he argued that the decedent was employed by Reliance, not him, and thus he cannot be liable under the Jones Act. Finally, he asserted that the widow’s own judicial admissions established that the Death on the High Seas Act( DOHSA) applied to preclude the common law claims and that the widow lacked standing under DOHSA to bring a claim. The court agreed that the widow’s allegations established that the DOHSA was applicable. Accordingly, the court held that the widow’s common law claims were precluded, and her causes of action were limited to either a DOHSA or Jones Act claim. However, because the widow conceded that she had not been appointed her deceased husband's personal representative, she lacked statutory standing to bring either claim. Thus, since there was no basis for liability, as the case currently stood, the court noted that it could simply enter summary judgment in Anderson’s favor on his §30505 action. The court declined to do so; however, finding it would inequitable to penalize the widow so heavily for what appeared to be a fundamental error on the part of her counsel. Thus, while the court noted that it harbored serious doubt as to whether the widow’s substantive claims had any merit, the court exercised its discretion to continue the case to afford the widow a reasonable opportunity to undertake the actions necessary to obtain standing. The court granted Anderson’s motion in part, dismissing the widow’s common law claims. In all other respects, the court continued the matter for 60 days to allow the widow to demonstrate statutory standing. (USDC WDWA, January 24, 2012) 2012 U.S. Dist. LEXIS 7663

Quotes of the Month . . . "Half the work that is done in this world is to make things appear what they are not." -Elias Root Beadle

“I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self.” - - Aristotle

"Talent is God given. Be humble. Fame is man-given. Be grateful. Conceit is self-given. Be careful." - - John Wooden

Tom Langan

Corporate Risk Manager

Weeks Marine, Inc.

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January 2012 Longshore Update

2011-12-31T06:08:00.000-08:00

January 2012 HAPPY NEW YEAR!!!

Notes From Your Updater - In Memoriam: Administrative Law Judge Richard D. Mills passed away on December 10, 2011 in Diamondhead, Mississippi at the age of 79. Judge Mills had a long and distinguished career at the U.S. Department of Labor, Office of Administrative Law Judges (OALJ). He served as the District Chief Judge at OALJ's Metairie, Louisiana district office, and continued work as a highly respected and popular settlement judge and mediator even after ending actively hearing cases before the Department.

Brad Soshea, District Director of the Houston Longshore office, has announced that he is leaving his position as District Director in the Houston Longshore district office in a couple of weeks to return to private law practice.

On December 30, 2011, the Office of Workers’ Compensation Programs issued the final rule implementing amendments to the Longshore & Harbor Workers’ Compensation Act relating to the exclusion of certain recreational-vessel workers from the LHWCA’s definition of “employee.” OWCP did withdraw its highly controversial proposed rule §701.303. The new rules come into effect on January 30, 2012.

On December 5, 2011, the U.S. Supreme Court denied the petition for certiorari filed in the case of Green v. United States of America, Docket No. 11-403 [see April 2011 Longshore Update]. The question presented to the Court was : Whether under the Suits in Admiralty Act (“SAA”) and the Public Vessels Act (“PVA”), the United States is subject to the same liability in-rem for the negligence of those conducting its business as agents for the vessels it owns, as would attach to a private vessel owner, i.e., according to the principles of law and the rules of practice applicable in like cases between private parties, as provided by statute.

On December 7, 2011 (possibly a new date which will live in infamy), a petition for certiorari was filed with the U.S. Supreme Court in the case of National Maritime Safety Association v. Occupational Safety and Health Administration, et al., Docket No. 11-711. The question presented to the Court is: “Whether the grant of power authorizing the Secretary of Labor to establish legally binding safety standards as long as those standards are ‘reasonably necessary or appropriate to provide safe . . . employment or places of employment,’ 29 U.S.C. § 652(8), is an unconstitutional delegation of legislative power?”

A petition for certiorari has been filed with the U.S. Supreme Court in the case of Lozman v. City of Riviera Beach, Florida, Docket No. 11-626. The question presented to the Court is : Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a “vessel” under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction. No response to the petition has been filed.

The Transportation Security Administration (TSA) has issued a notice that approximately 26,000 Transportation Worker Identification Credentials (TWIC) cards were issued with improperly coded Federal Agency Smart Credential Numbers on their integrated circuit chips. As a result, these TWIC cards will not work in an electronic card reader. TSA will replace these defective cards at no cost. TSA has issued a 543-page list of the eight-digit Agency Serial Numbers of the affected cards, which were issued prior to April 5, 2011.

Arbitrator Orders Striking ILWU Members Back to Work - Most, but not all, of 700 dockworkers have returned to work at the ports of Los Angeles and Long Beach after walking off the job in the first week of December as part of a strike organized by ILWU Local 63, the clerical unit of the International Longshore and Warehouse Union. On December 6, 2011, an arbitrator ruled against the labor action and ordered that work resume. The union has appealed the arbitrator’s decision, according to an ILWU spokesman.

SUBJECT TO THE SCINDIA, NOT KERMAREC, STANDARD

HUDSON V. SCHLUMBERGER TECHNOLOGY CORPORATION, ET AL.

Circuit Court Opinion

Mark Hudson, an employee of Schlumberger Technology Corporation, was spooling seismic lines from the aft deck of a vessel, operated by Alpha Marine Services, Inc., when he allegedly stepped in an uncovered padeye hole and injured his knee. Though Hudson admitted that he knew some of the vessel’s pad-eye holes were uncovered, he alleged that poor lighting and a film of sea water covering the deck contributed to his accident because it made identification of the holes difficult in the early morning light. At the time of the incident, the deck light had been turned off by the boat’s captain because the sun was coming up. Hudson and a fellow Schlumberger worker were the only personnel on deck at the time of Hudson’s injury. There was a BP representative aboard the vessel, who was asleep below deck, and no Alpha employees were on deck because Schlumberger had requested they not be in the area while seismic operations were underway. The district court ultimately granted summary judgment to Alpha and BP, and Hudson timely appealed, arguing that the district court applied the wrong negligence standard and that even under the standard adopted by the district court, summary judgment is not appropriate because there is a material issue of disputed fact. In his appeal, Hudson contended that Kermarec, not Scindia, should serve as the proper standard to judge the conduct underlying his claim under §905(b) of the LHWCA. In this respect, Hudson avers that the district court applied the wrong standard to his claim by applying Scindia’s three vessel-owner duties, rather than Kermarec’s “reasonable care” approach. Hudson alternatively argued that even if Scindia is the appropriate standard under the LHWCA, the district court erred in applying Scindia. Hudson contended that Alpha was in complete charge of the vessel, supervised everyone on board, and, despite Hudson’s prior inquiries, insisted the covers remain off the pad-eye holes to prevent them from washing overboard. Hudson also argued that BP’s representative aboard the vessel, directed the outfitting and inspection of the vessel, as well as the work being done, to assure that working conditions were safe. As a result of the investigation that followed Hudson’s accident, the BP representative allegedly recommended covering the padeye holes in the future. The appellate court rejected Hudson’s contention finding, because Hudson is a longshoreman, under the LHWCA by virtue of his maritime employment, and was injured while working in the scope of his employment over navigable waters, his potential recovery under §905(b) is subject to the Scindia, not Kermarec, standard. The Scindia factors all supported Alpha’s position. Indeed, the record showed that Alpha was actually restricted to some extent from accessing the area in which Hudson was working while he was performing his seismic duties. Though the lighting was controlled by Alpha, the record showed the pad-eyes were plainly visible. The record was also absent of any indication that Alpha knew Hudson’s work around the uncovered pad-eyes created an unreasonable risk of harm and that Schlumberger could not be relied on to address the potential hazard. The appellate court concluded that Hudson had failed to show a genuine issue of material fact either that Schlumberger’s work was done with obvious imprudence, or that Alpha had any knowledge if it was. The appellate court also found that BP’s role as a time charterer, rather than traditional vessel owner, further cabined its obligations with respect to liability under §905(b), subject to liability only for negligence in its time-charterer capacity. The appellate court held that Hudson had. not shown that BP is accountable in its traditional sphere as time charterer and had failed to raise a material fact issue about BP’s liability under §905(b). The court affirmed the ruling of the district court, granting summary judgment in favor of Alpha and BP.(5^th Cir, December 6, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 24244

WAVE HEIGHT IS NOT A SHOWING OF NEGLIGENCE (CONT.)

CALLAHAN V. GULF LOGISTICS, LLC ET AL.

Circuit Court Opinion

Christopher Callahan filed suit, under §905(b) of the LHWCA, after allegedly sustaining bodily injuries while he was employed by Cooper Cameron Corporation as a field service technician aboard a mobile drilling unit. Callahan was allegedly injured during a basket transfer from a supply vessel to the mobile drilling unit during rough seas. Callahan sued multiple parties, including owners, charterers, and operators (“defendants”). Defendants moved for summary judgment. After reviewing all the evidence, the court concluded that there was no negligence in the case because it was uncontested that it was not too dangerous to make a basket transfer. Accordingly, there was no genuine issue of material fact for trial. Callahan alleged that the defendants transferred him in extremely hazardous weather conditions that made even standing on deck dangerous. The court found that even Callahan’s own testimony disputed this assertion and showed that he did not believe the seas were too dangerous for work or to make the personnel basket transfer, and in fact, safely completed a personnel basket transfer after his injury. While Callahan argued that it was "undisputed" that sea conditions reached fifteen to eighteen feet, the court disagreed, noting Callahan’s own accident report stating that the waves were ten feet. Considering the evidence and applicable law, the court concluded that the defendants had established that there is no issue of material fact that they performed their duty to act reasonably under the circumstances such that summary judgment was warranted. The court granted defendants’ motion for summary judgment [see May 2009 Longshore Update]. Callahan appealed the district court’s grant of summary judgment, arguing that the district court erred in finding that the conduct of some of the defendants, particularly Diamond, Gulf Logistics, and LLOG, was reasonable as a matter of law. With respect to Eagle Consulting, Callahan argued that his proffered evidence established a genuine issue of fact regarding Eagle Consulting’s control over the events in question. Thus, he argues, Eagle Consulting was not entitled to summary judgment. The appellate court affirmed the district court’s granted of summary judgment in favor of all defendants except one. The appellate court considered a “clarifying” affidavit of Callahan’s in reaching its conclusion with respect to Gulf Logistics, observing that while the district court correctly noted that no one directed Callahan to leave the cabin of the ship, this did not necessarily absolve Gulf Logistics of liability. Callahan’s affidavit suggested that custom and experience surrounding basket transfers involves certain expectations to which he conformed his conduct by moving his bags and preparing for the transfer. A jury could disbelieve this explanation if it credited instead Callahan’s admission that according to his employer’s “stop work” policy, he could refuse to make a personnel basket transfer and had done so in the past without adverse consequences. Alternatively, a reasonable jury could find that Gulf Logistics implicitly directed him to prepare for a transfer, and he was required to prepare his bags and position himself appropriately on the deck. The appellate court also found that Callahan’s subjective belief concerning the safety of a personnel basket transfer may be probative, but it was not dispositive of whether Gulf Logistics breached its duty of care by setting up the transfer. The measure of danger in the situation is an objective, not subjective, question. The court found that Callahan’s deposition testimony and the accident report furnished some evidence that the conditions in which the transfer was made were hazardous. Although the appellate court acknowledged that Callahan’s evidence was thin, it was nonetheless sufficient to create a fact issue as to Gulf Logistics’ breach. The appellate court concluded that the district court erred in granting summary judgment to Gulf Logistics. The summary judgments in favor of all other defendants was affirmed, but reversed and remanded as to the Gulf Logistics. (5^th Cir, December 29, 2011, UNPUBLISHED) No. 10-30019 (consolidated with No. 09-30503) 2011 U.S. App. LEXIS 26012

Updater Note: It is unfortunate that the appellate court chose to give consideration to a supplemental affidavit in order to determine that there was a genuine fact issue that should have been considered by the trier of fact, rather than ruled on as a matter of law.

DUMMY WALKS OFF PIER WITHOUT LOOKING & HAS AUDACITY TO SUE

BRODERICK ET AL. V. THE PORT OF SEATTLE

Appellate Court Opinion

The Port of Seattle contracted with Northwest Asphalt to perform asphalting work at its marine cargo terminal in Seattle. Northwest Asphalt was fully and exclusively responsible for the safety of its employees, the conditions of the work site, and for the safe performance of its work. Larry Broderick was employed by Northwest Asphalt and was experienced in construction work, particularly road construction. Broderick was directly supervised by Northwest Asphalt and not the Port. On the morning of his accident, Broderick raked asphalt behind the paver for about two and a half hours. As Broderick stood with his back to the pier's edge, the paver operator directed Broderick to step out of the way to allow the paver to turn. Without looking behind, Broderick stepped backward and fell off the edge of the pier onto the rocks below, sustaining knee and head injuries. Following Broderick’s accident, the Washington Department of Labor and Industries cited Northwest Asphalt for a serious safety violation for failure to install guardrails or barriers along the edge of the pier. The Department found the Port committed no health or safety violations. Broderick sued the Port for negligence and damages stemming from his fall, claiming his fall happened because a chunk of pavement gave way underneath him. The Port moved for summary judgment arguing no enforceable common law duty of care for workplace safety, statutory duty, or common law duty of care to invitee. The trial court granted the Port's summary judgment motion, ruling no material issues of fact and no duty owed to Broderick as a matter of law. Broderick appealed, arguing that the Port breached its duties under the Washington Administrative Code (WAC)'s waterfront safety provisions. The Port responded that it owed Broderick no duty of ordinary care and no WAC duties because it retained no control over Northwest Asphalt's work. The appellate court agreed with the Port, finding the case involved an independent contractor's employee who fell off a pier owned by the Port. Turning to Broderick’s theory of liability the appellate court found that, even assuming the Port knew that the asphalt near the edge of the pier was loose and broken up, Broderick had failed to present any evidence the Port should have anticipated that Northwest Asphalt would pave near the edge of the pier, perform its work negligently, or that Broderick would fall. Because the Port owed Broderick no duty of ordinary care, no statutory duty, and no duty as a business invitee, the appellate court affirmed the trial court's summary judgment order dismissing Broderick's claims. (Wa. App. Ct, December 19, 2011, UNPUBLISHED) 2011 Wash. App. LEXIS 2817

SUBSTANTIAL FACTUAL DISPUTES RESOLVED IN FAVOR OF LONGSHOREMAN

DASBACH V. AMERICAN COMMERCIAL LINES, LLC

Appellate Court Opinion

David Dasbach was employed as a longshoreman by Holcim, Inc., a wholesale cement distributor and stevedore. Dasbach and a co-worker were unloading cement from a barge owned and operated by American Commercial Lines, LLC (ACL). The barge had eight rolling covers over its cargo hold. Each rolling cover was held in place by latches called toggle locks. Dasbach allegedly injured his back, when he used a pry bar to loosen two toggle locks that were too tight to open manually. Dasbach later sued ACL for negligence under §905(b) of the LHWCA, alleging that the barge’s toggle locks were defective and that ACL had actual or constructive knowledge of the defect before the barge was turned over to the stevedore. Following a trial, a jury awarded Dasbach $800,000. After the court entered judgment, ACL appealed the jury award, arguing it was entitled to a directed verdict or a judgment notwithstanding the verdict because Dasbach failed to prove that a latch on the barge was defective before the barge was turned over for unloading operations; there was no evidence ACL had notice of a defective latch before the turnover; the defective latch was open, obvious and anticipated by Dasbach; and there was no evidence that Dasbach’s alleged injuries were proximately caused by ACL’s negligence. The appellate court began its analysis by observing that, because ACL was seeking a judgment not on verdict, it must demonstrate that the evidence adduced at trial, when considered in the light most favorable to Dasbach, so overwhelmingly favored ACL that no contrary verdict based on the evidence could ever stand. After a careful review of the evidence adduced at trial, the appellate court concluded that it was reasonable for the jury to conclude that, before the barge was turned over to Holcim, either the toggle lock at issue had been improperly adjusted by ACL or its agents or they failed to properly adjust the toggle lock after an event occurred that necessitated the resetting of some covers and placed increased tension on the lock. The trial testimony established that the toggle locks at issue had been adjusted at some time before the turnover because the locks were bent and had burn marks and bubbled paint. Moreover, the testimony showed that the toggle lock in question was too tight to open by hand and difficult to open with a pry bar. It was also reasonable for the jury to conclude that ACL either knew about the excessive tension on the toggle locks or should have discovered the hazard through a reasonable inspection. Even assuming, arguendo, that the defective condition of the lock was open, obvious and anticipated by Dasbach, the evidence, when viewed in the light most favorable to Dasbach, was sufficient for a jury to reasonably conclude that ACL failed to avoid the harm to Dasbach because the hazard was one which ACL should have known Dasbach would not avoid by using a crane or other practical alternatives under the circumstances. With respect to Dasbach’s alleged injury, the appellate court noted that this case, like many cases involving an unwitnessed accident, rises or falls on the credibility of the witnesses and the interpretation of the evidence. The court concluded that it could not substitute its judgment for that of the jury as to the credibility of witnesses or the inferences to be drawn from the evidence. Finding that ACL had failed to meet this burden, the appellate court held that ACL was not entitled to a judgment notwithstanding the verdict because all the evidence, when viewed in its aspect most favorable to Dasbach, did not so overwhelmingly favor ACL that the verdict rendered against ACL could not stand. Reasonable inferences of ACL's negligence could be drawn from the established facts and circumstances concerning whether a barge latch was defective before the barge was turned over to the stevedore, whether ACL should have known of the defect, whether ACL should have known a longshoreman would not avoid the hazard by using practical alternatives, and whether Dasbach's injuries were proximately caused by ACL’s negligent breach of its duties. The judgment of the trial court was affirmed. (Ill. 1^st App, December 23, 2011, UNPUBLISHED) 2011 Ill. App. Unpub. LEXIS 3244; 2011 IL App (1st) 93307U

JONES ACT & §905(B) CLAIMS REJECTED, AS FORMER BARGE IS NOT A “VESSEL”

POOLSON V. MALLEY REPAIRS, INC., ET AL.

Edward Poolson, Jr., allegedly injured his left arm while working at Holcim US, Inc.’s cement transfer facility. Poolson filed this suit against Holcim alleging claims under the Jones Act and §905(b) of the LHWCA, alleging that Holcim’s barge is a vessel and that he is a Jones Act seaman. In the alternative, Poolson alleged a claim against Holcim as the vessel owner under §905(b) of the LHWCA. Holcim is supplier of cement and it operates a distribution terminal where bulk cement is received from railcars and barges and transferred to silos for loading onto trucks for shipment. Holcim uses a stationary floating barge to receive the cement, which is moored adjacent to Holcim's terminal and contains the equipment necessary for the transfer, such as an air compressor, vacuum pump, tanks, cranes, and piping. While originally constructed a deck barge, Holcim converted it into a stationary floating transfer facility, which receives electricity from a generator on the shore, is held in place by two welded I-beam brackets that are collared around 48" diameter steel mooring piles. It can move vertically on its moorings with the motion of the tides and waves, and due to the weight of the cement. The barge is not used to move materials or people along the water, but has been moved for maintenance. Holcim moved for summary judgment arguing that Poolson’s Jones Act and § 905(b) claims must be dismissed because its former barge is not a vessel under either statute and that Poolson’s exclusive remedy is workers' compensation under the LHWCA. After allowing both parties “vessel experts” to testify, denying motions in limine filed by each respective party, the court held that Holcim’s former barge is not a "vessel" under the Jones Act or LHWCA. Although the barge can physically be used for transportation on water, such a use was merely theoretical. The barge was essentially taken out of navigation when it was permanently moored adjacent to Holcim's cement transfer facility by two welded I-beam brackets that are collared around 48" diameter steel mooring piles. While acknowledging the fact that the barge has been moved for maintenance, the court found that it has not been used as a seagoing vessel, and Holcim does not intend to use it as such. Further, the barge receives electricity from a land-based source, and is an integral part of Holcim's land-based cement transfer operation. Moving the barge would require multiple steps, such as disconnecting power lines and cement transfer equipment in addition to cutting the welded I-beam brackets. The court concluded these facts demonstrated the impracticability of using it as a means of marine transport and held that it is not a vessel under the Jones Act or LHWCA. Holcim’s motion for summary judgment was granted and Poolson’s claims were dismissed with prejudice. (USDC EDLA, November 30, 2011) 2011 U.S. Dist. LEXIS 137744

DON’T WAIT FOR CMS TO APPROVE YOUR SETTLEMENT - FILE A DJ ACTION

GUIDRY, ET AL. V. CHEVRON USA, INC.

Branden Guidry was allegedly injured in a workplace accident while he was employed by Kelley Completion Services (KCS) and assigned to work on a Chevron structure located on the Outer Continental Shelf, where he fell into a hole, with one leg in the hole and one leg on the platform. As a result of the accident, Guidry was diagnosed with a disc herniation and underwent low back surgery. Guidry and his wife, individually and on behalf of their minor children (hereinafter “Guidry”), filed suit against Chevron U.S.A., Inc. and Danos & Curole Marine Contractors, LLC. Guidry’s third-party claims were eventually settled amicably after lengthy negotiations. The defendants agreed to pay Guidry the sum of $975,000. In consideration for a settlement approved by OWCP under §908(i) releasing the claims brought under the LHWCA, KCS’s insurer agreed to pay Guidry $50,000 and to waive its intervention and any lien it might have had. Part of the consideration for all of the settlements was that Guidry would be responsible for protecting Medicare's interests under the Medicare Secondary Payer Statute (MSP). Although the parties wanted the Medicare Set Aside (MSA) approved by Centers for Medicare and Medicaid Services (CMS) for purposes of complying with the provisions of the MSP, and the commensurate regulations, the parties were concerned that the settlement could not be finalized and cited the delay associated with obtaining approval from CMS and the fact that approval may not ever be forthcoming. In an effort to avoid rescinding the settlement altogether and to achieve compliance with the provisions of the MSP, Guidry filed a motion for declaratory judgment seeking (1) approval of the settlement, (2) a declaration that the interests of Medicare are adequately protected by setting aside a sum of money determined by the court to fund any of Guidry's future medical expenses related to the injuries claimed and released in this lawsuit, and (3) an order setting that amount aside from the settlement proceeds and depositing it into an interest-bearing account to be self-administered by Guidry. Protocols, Inc., a Medicare set-aside vendor, was retained to prepare an MSA, which determined that Guidry's future potential medical expenses that would be covered by Medicare and were related to the injuries claimed in the lawsuit amounted to $75,420.59 if the cost of anticipated future psychological and/or psychiatric treatment is waived or $77,204.16 if those costs are included. The court found that the sum of $77,204.16, to be utilized by Guidry out of the settlement proceeds to pay for future medical items or services, that would be otherwise covered by Medicare, reasonably and fairly took Medicare's interests into account in that the figures are based on reasonably foreseeable medical needs. Additionally, since CMS provided no other procedure by which to determine the adequacy of protecting Medicare's interests for future medical needs and/or expenses in conjunction with the settlement of third-party claims, and since there is a strong public interest in resolving lawsuits through settlement, the court found that Medicare's interests had been adequately protected in the settlement within the meaning of the MSP. (USDC WDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148942

THERE HAS TO BE A VESSEL TO SUPPORT AN UNSEAWORTHINESS CLAIM

KAHUE V. PACIFIC ENVIRONMENTAL CORPORATION, ET AL.

Cedric K. Kahue filed a Complaint against Pacific Environmental Corporation (PENCO), seeking recovery under the Jones Act, for injuries allegedly incurred while employed by PENCO as a seaman. PENCO ins in the business of providing environmental remediation and spill cleanup services, primarily on land. Only a small percentage of PENCO's work takes place at sea, including marine spill responses, deploying containment booms around vessels for fueling, and transporting people and equipment to and from job sites. Kahue claimed that he was injured while preparing for a hazardous waste spill response, when a large bale of rags from the second story of a PENCO building fell on his head, leaving him a partial quadriplegic. Kahue asserted various causes of action, including negligence, unseaworthiness, and maintenance and cure. PENCO’s insurer intervened in the case, asserting a workers’ compensation lien, based on the claim that it continues to pay disability compensation and medical expenses under the LHWCA for Kahue as a result of the alleged injury. PENCO moved for summary judgment on all of Kahue's claims on the grounds that he may not recover under the Jones Act because he does not qualify for seaman status, and is already receiving lifetime benefits under the Longshore Act. Alternatively, PENCO sought partial summary judgment on Kahue unseaworthiness claim because no vessel was involved, and on their affirmative defense to limit liability to the value of the vessel involved pursuant to 46 U.S.C. § 30501 et seq. PENCO argued that it hired states that it hired Kahue as a laborer, and he later worked as a HAZMAT technician and foreman. The majority of Kahue’s work with PENCO was on land jobs operating cranes, backhoes, excavators, dozers, boom trucks, loaders, forklifts and pickup trucks. According to PENCO, during Kahue's entire employment with PENCO, he spent 14.82% of his time in the service of PENCO's skiffs away from a dock or underway, and 4.9% of his time on other company's vessels. On the date of his alleged injury, Kahue was the foreman in charge of mobilizing equipment and supplies at PENCO's shop for a highway spill response job. A co-employee dropped an unopened bale of cleaning rags, weighing forty to fifty pounds, in a land-based storeroom, hitting Kahue on the head. PENCO argued that Kahue was not in the service of a vessel at the time of his injury, and spent less than twenty percent of his time on PENCO's marine projects. PENCO argued that Kahue’s work does not satisfy the duration element of the substantial connection test, which requires that roughly thirty percent of a worker's time be spent in service of a vessel in navigation. Alternatively, PENCO sought partial summary judgment on Kahue’s unseaworthiness claim, arguing that he was not injured by a vessel, let alone an unseaworthy one. In opposition, Kahue argued that he is a Jones Act seaman, and that this determination is a mixed question of law and fact, which is for the trier of fact and not appropriate for summary judgment. Under the summary judgment standard, the court found that PENCO had not met its burden of establishing that Kahue did not have a connection to a vessel. The court found the Kahue had presented evidence that he had a connection to PENCO's and other vessels and that he contributed to the accomplishment of the vessels' mission, namely, marine clean up. As to the second prong of the Chandris test, whether his connection to the vessel was substantial in duration, the court found that there is a question of fact as to this material issue, and, therefore, summary judgment is not appropriate. Turning to PENCO’s alternative motion for partial summary judgment. The court found that Kahue was not injured by a vessel, a piece of the ship's equipment, or an appurtenant appliance. Rather, Plaintiff was injured while supervising the loading of a truck with supplies to clean up a roadside oil spill. The court therefore granted PENCO's Motion as to Kahue’s unseaworthiness claim. (USDC HI, November 29, 2011) 2011 U.S. Dist. LEXIS 137747

COURT NOT CONVINCED JONES ACT WAS FRAUDULENTLY PLED

GUTIERREZ V. SAFWAY SERVICES, LLC, ET AL.

Carlos Gutierrez was allegedly injured while employed by Safway Services, LLC as a scaffolding builder working aboard a drillship, owned by Transocean Offshore USA, Inc. Gutierrez filed his Jones Act suit in state court, asserting claims under the Jones Act, general maritime law, and the saving to suitors clause. Transocean filed a Notice of Removal in federal court, which Safway joined in, both arguing that Gutierrez’s Jones Act claim had been fraudulently pled, and asking that the court exercise removal jurisdiction over the case. Gutierrez filed a Motion to Remand the case to state court, claiming that he had properly alleged that he is a seaman under the Jones Act and that, as such, his case is not removable. The defendants asserted that Gutierrez’s claims were covered by the LHWCA, as extended by the Outer Continental Shelf Lands Act (OSCLA), claiming the drillship qualified as a OSCLA situs and that Gutierrez was performing land-based work on an offshore rig. Safway further claimed that because Gutierrez was hired as a scaffolding worker and because Safway planned to place him on land-based projects in the future Gutierrez could not show a substantial connection to a vessel or fleet of vessels. The court rejected defendants’ arguments finding, instead, that the drillship is a vessel in navigation under the Jones Act. Citing Manuel, the court noted that if the owner constructs or assembles a craft for the purpose of transporting passengers, cargo, or equipment across navigable waters and the craft is engaged in that service, that structure is a vessel. Such a vessel retains its vessel status even while moored, dry-docked, or otherwise immobilized and secured to land. It was undisputed that the drillship in question was capable of transporting people and equipment across water, and was immobilized during Gutierrez’s work merely for repairs. It was also undisputed that Gutierrez worked as a lead carpenter building scaffolding aboard the drillship to facilitate repairs of various equipment on the ship. Whether or not this work contributed to the function of the drillship was a question of fact. Because factual disputes had to be resolved in favor of Gutierrez, the court found it was compelled to find that the Gutierrez had established that his work contributed to the function of the vessel or to the accomplishment of its mission. Because there were questions of fact as to whether Gutierrez’s work aboard the drillship contributed to the function or mission of the vessel and whether Gutierrez’s connection to the vessel was substantial in nature and duration, the court granted Gutierrez’s Motion to Remand. (USDC EDLA, November 28, 2011) 2011 U.S. Dist. LEXIS 136087

MOTION, MOTION, WHOSE GOT A MOTION?

WILLIAMS V. TRIPLE C ENTERPRISE INC. OF LOUISIANA, ET AL

David Williams filed suit under the Jones Act, general maritime law, and §905(b) of the LHWCA, claiming that he was injured on two occasions while working in the scope of his employment as a contract welder for C & G Welding Service, including a left shoulder injury on a barge owned by Manson Gulf, LLC, when a contract rigger for Ocean Marine Operators, LLC, performing work for Manson pursuant to contract, tossed him a five-gallon milk container. Williams’ second alleged injury was to the back and neck when he tripped on the base of a staircase on a vessel owned and operated by International Construction Group, LLC. Ocean Marine moved for summary judgment, arguing that it is not liable under a theory of respondeat superior for Williams’ injuries and that instead Manson was liable under the borrowed servant doctrine, because the milk thrower was Manson's borrowed employee. The court found that a genuine issue of material fact existed as to the extent of Ocean Marine and Manson's control over the milk thrower on the day of Williams’ accident and that Ocean Marine had failed to make a prima facie case that no genuine issues of material fact existed as to whether he was Manson's borrowed employee. The court next addressed Williams’ motion to sever his two claims. Williams’ argued that his two injuries should be severed because trying them together would confuse the jury and result in an unfair disposition of the case. The court denied Williams’ motion, finding the claims had overlapping questions of fact and that severing the claims would likely require duplicative testimony and could prejudice the defendants by making it more likely that Williams would obtain double recovery for his injuries rather than having a jury consider the injuries according to the totality of the circumstances. Finally, the court addressed two motions in limine filed by the defendants, holding that one was premature, but granting the motion to strike Williams’ expert witness, Dennis Howard. The court found that the trier of fact could understand the circumstances of Williams’ two accidents based on their own experiences. (USDC EDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148932

And on the Admiralty front . . .

QUESTIONS OF FACT AS TO WHETHER SEAMAN DESERTED HIS VESSEL (CONT.)

ATLANTIC SOUNDING COMPANY, INC. V. VICKERS, ET AL.

Jimmie Vickers was a dredge tender operator for Atlantic Sounding Company, Inc., when he allegedly sustained a shoulder injury by falling against the console or steering wheel (depending upon which version of his story you want to believe) of the boat he was operating. After Vickers deserted his vessel, avoided the post-accident substance testing, and Atlantic Sounding completed its investigation, the employer filed a declaratory judgment action, asking the court to determine whether Vickers was injured as he claimed, whether Vickers reached maximum medical improvement, whether Vickers willfully deserted his vessel without a justifiable reason, and whether he was not entitled to maintenance and cure under admiralty law. Vickers filed his Answer and asserted a Counterclaim for Jones Act negligence, unseaworthiness, and punitive damages for Atlantic’s Sounding’s failure to pay maintenance and cure. Vickers then moved for partial summary judgment on the grounds that there are no material facts in dispute to contradict his status as a Jones Act seaman. Thus, as a matter of law, he contended that he was entitled to maintenance and cure for the injuries he allegedly suffered while operating the tender boat for Atlantic Sounding. The court concluded that material fact questions remained as to whether Vickers was a Jones Act seaman at the relevant times and whether Atlantic Sounding properly terminated maintenance and cure payments to Vickers following the accident and denied summary judgment. [see July 2010 Longshore Update] Prior to his bench trial, counsel for Vickers withdrew and Vickers, proceeding pro se, moved to dismiss his Jones Act negligence and unseaworthiness claims. Vickers retained his claim for maintenance and cure and his request for sanctions against Atlantic Sounding. At trial, the court found that Atlantic Sounding had paid Vickers maintenance and cure up until the point when Vickers attained maximum cure. The court also found the Vickers’ failure to complete prescribed physical therapy amounted to willful misconduct, constituting an abandonment of treatment, precluding any further maintenance and cure. The court also found the Vicker’s failed to accurately disclosed his medical history, an act which could itself be a bar to maintenance and cure. The court held that the facts and law supported the conclusion that Atlantic Sounding was entitled to judgment as a matter of law. Atlantic Sounding’s motion to dismiss Vickers’ counterclaim for maintenance, cure and sanctions was granted [see March 2011 Longshore Update]. Vickers appealed maintaining that he was employed by Weeks Marine, Inc., Atlantic’s parent company, contending that Atlantic had no standing to bring its original declaratory judgment action. The appellate court affirmed the district court’s finding that Vickers was working for Atlantic at the time of his accident and injury, because it was supported by the evidence introduced at trial and was not clearly erroneous. The appellate court also held that, since Vickers made no argument on appeal with respect to the counter claims he had filed against Atlantic, he had abandoned his counterclaims on appeal. The district court’s judgment was affirmed in all respect. (5^th Cir, December 19, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25339

Update Note: Congratulations to Richard Salloum, of Franke & Salloum in Gulfport, MS on getting an excellent defense verdict affirmed on appeal. Most of my readers know how difficult it can be to get a total defense verdict when you are dealing with a pro se claimant. Only Richard Salloum, with his charismatic demeanor and excellent litigation skills, pulls off a coup like this one. Thanks for the Christmas present, Richard.

IF YOU ARE GOING TO LIE, YOU NEED TO REMEMBER YOUR LIES

BROWN V. OIL STATES SKAGIT SMATCO, ET AL.

Circuit Court Opinion

Nickey Brown, a former employee of Oil States Skagit Smatco, L.L.C., brought a lawsuit against Oil States under Title VII, alleging claims of racial harassment and constructive discharge. In a deposition for his discrimination case, Brown testified that he quit his job at Oil States solely because of racial harassment. However, four months earlier, in a deposition for a personal injury lawsuit, Brown testified that he left his job at Oil States solely because of back pain related to a car accident. Oil States discovered the contradictory deposition testimony and filed a motion for sanctions, seeking dismissal of both of Brown’s claims. The district court found that Brown committed perjury and granted Oil States’ motion for sanctions, dismissing Brown’s complaint with prejudice. Apart from recommending the dismissal of Brown’s complaint, the court also issued a sanction order against Brown’s attorney, Courtney Wilson, finding that Wilson violated Rules 2.1 and 3.2 of the Rules of Professional Conduct for his conduct at a settlement conference. In response to the sanction order, Wilson did not object to the sanction order itself but instead filed a motion for recusal of the magistrate judge. Brown appealed the district court’s dismissal of his complaint, arguing that a less severe sanction was more appropriate and that the district court should have held an evidentiary hearing to allow Brown to explain his conflicting testimony. Brown’s lawyer, who was separately sanctioned, appealed the denial of his motion for recusal of the magistrate judge. The appellate court initially addressed the issue of whether Brown’s conflicting testimony constituted contumacious conduct to justify the dismissal of his complaint. The court noted that, before the start of his two depositions, Brown took an oath to tell the truth. As the district court correctly observed, “This [oath] is not trivial. The proper administration of justice depends on people testifying truthfully under oath.”The appellate court agreed with the district court’s determination that Brown defied this oath and committed perjury. Through his perjured testimony, Brown committed fraud upon the court, and this blatant misconduct constituted contumacious conduct. The district court did consider several other lesser sanctions, but concluded that these sanctions would not be appropriate to remedy Brown’s misconduct. After analyzing the reasoning in the district court’s opinion, the appellate court rejected Brown’s contention that the district court erred by failing to consider lesser sanctions and to impose the least onerous sanction appropriate. The district court did consider lesser sanctions and explicitly found that dismissal of the complaint in its entirety was the only effective sanction. After reviewing the record, the appellate court concluded that the district court did not abuse its discretion in deciding to dismiss Brown’s complaint with prejudice. Brown plainly committed perjury, a serious offense that constitutes a severe affront to the courts and thwarted the administration of justice. The appellate court found Brown’s argument that the district court failed to hold a hearing was meritless. Finally, the appellate court held that the court did not abuse its discretion in denying Wilson’s motion for recusal of the magistrate judge. The court affirmed the district court’s dismissal of Brown’s complaint with prejudice and the district court’s order denying Wilson’s motion for recusal of the magistrate judge. (5^th Cir, December 6, 2011) 2011 U.S. App. LEXIS 24231

Updater Note: On December 27, 2011, the 5^th Circuit released a revised opinion in this case; however, the outcome remained the same.

I ONLY SMOKED MARIJUANA AFTER THE ACCIDENT TO RELIEVE MY PAIN (CONT.)

LEDET V. SMITH MARINE TOWING CORPORATION

Circuit Court Opinion

Chad Ledet brought suit against his employer, Smith Marine Towing Corp., as a result of an alleged back injury he sustained when he was struck by a towline. The sea-going tug Ledet was assigned to, was towing an unloaded offshore deck barge equipped with its own towing equipment, or "chain bridle," which consisted of two chains attached to its front corners connected by a "fishplate" and a pendant wire that extended from the fishplate to the tug. The tug captain conducted a joint safety analysis (JSA), during which the crew discussed the method for releasing the barge and its towing equipment. Ledet claimed that he proposed an allegedly safer method for releasing the towing gear at the JSA. The captain allegedly rejected Ledet's alternate proposal because his method would take less time. At trial, the captain testified that Ledet initially tied the line from the starboard side and was struck as he walked away. Ledet maintained that he followed the captain’s orders, but when he reached the starboard grating, the vessel dipped in the trough of a wave, and the pendant wire came untied and struck him, throwing him against the vessel's bulwarks, and knocking him unconscious. Ledet claimed to have sustained a compression fracture to his spine. Following a bench trial the court concluded that the tug captain was negligent in a number of ways and unreasonably put the crew in harm's way. The court rejected Smith Marine’s assertion that Ledet was contributorily negligent in approaching the scene from the starboard side of the vessel. The court rejected Smith Marine's suggestion that Ledet was impaired by drug use at the time of the accident. Instead, the court credited Ledet's testimony that he smoked marijuana only after the accident in order to alleviate his pain. The court found that Ledet had sustained damages, totaling $1,894,728.39, which included $1,300,000.00 for pain and suffering [see May 2011 Longshore Update]. Smith Marine timely appealed, seeking remittitur and review of

the district court’s finding that Ledet was not contributorily negligent. Smith Marine asserted that Ledet was negligent because he knew that Captain Martin’s plan created a pressure zone and that when he stepped forward beyond the H-beams he would be in the pressure zone. The appellate court rejected this argument, noting that because the district court found that Ledet was following orders, Smith Marine’s argument about Ledet’s own negligence was foreclosed by Williams v. Brasea, Inc., which held that a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger. The appellate court found no clear error in the district court’s determination that Ledet was not negligent. Smith Marine further urged error based on the district court’s award of $1.3 million in damages for past and future pain and suffering. Both Smith Marine and Ledet admitted that there were relatively few cases from Louisiana involving injuries to the lower thoracic and upper lumbar spine to use as comparitors for the maximum recovery rule. Ledet did point the appellate court to two cases that, although distinguishable, had similar pain and suffering awards. Since Smith Marine provided no other basis to upset the district court’s award, the appellate court found no clear error in the district court’s award and affirmed it. (5^th Cir, December 21, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25506

Updater Note: Well, I guess the 5th Circuit told that Longshore Updater what it thought of his opinion that Judge Vance erred by awarding $1,300,000.00 for pain and suffering. So its Merry Christmas Mr. Ledet, and we’ll ignore the “maximum recovery rule” here. One can only hope that the U.S. Coast Guard pulled Mr. Ledet’s license, for his admitted use of marijuana to “ease his pain.”

NO INDEPENDENT BASIS FOR ADMIRALTY JURISDICTION UNDER LIMITATION ACT

MLC FISHING, INC. V VELEZ

Circuit Court Opinion

MLC Fishing, Inc. owns a fishing vessel which, at all relevant times, was docked. MLC initiated this limitation proceeding following an accident that took place when Julio Angel Velez, intending to go fishing as a passenger aboard the vessel, slipped and fell on a ramp leading from the marina to a floating dock that passengers were required to traverse in order to access the vessel. The district court dismissed MLC’s limitation action for want of subject matter jurisdiction. MLC appealed, arguing that the Limitation Act provides an independent basis for federal jurisdiction over this action. The appellate court held that Velez's accident did not occur on or over navigable waters and so the action fell outside the traditional scope of federal admiralty jurisdiction. In addition, the court held, as a matter of first impression for this Circuit, that the Limitation Act does not provide an independent basis for admiralty jurisdiction for petitions that arise from incidents not occurring on or over navigable waters. Accordingly, the judgment of the district court was affirmed. (2^nd Cir, December 15, 2011) 2011 U.S. App. LEXIS 24808

DAMAGES LIMITED TO FAIR MARKET VALUE OF TOTAL CONSTRUCTIVE LOSS

F.C. WHEAT MARITIME CORPORATION, ET AL. V. UNITED STATES OF AMERICA

Circuit Court Opinion

This appeal arose out of a case involving an allision between a U.S. Army Corps of Engineers (USACE) vessel and a private yacht owned by F.C. Wheat Maritime Corp. The Marquessa measured 70' from bow to transom, with an additional four-foot swim platform extending beyond the transom. Wheat Maritime purchased the Marquessa in 1998 for $875,000 and made numerous modifications. A USACE vessel allided with the Marquessa, which was docked at a pier. The allision occurred because the USACE vessel's captain fell asleep at the helm. The Marquessa was damaged significantly. Wheat Maritime brought suit against the United States under the Public Vessels Act and the Suits in Admiralty Act. The case proceeded to a bench trial in the district court, resulting in a damages judgment for Wheat Maritime, who wound up appealing the judgment, arguing it was infirm in various respects. Wheat Maritime argued that they were entitled to $1,117,859.67, relying upon an estimate from the shipyard for $784,000 in actual repair costs and the additional $333,859.67 was necessary to account for other related expenses. The district court entered judgment for Wheat Maritime, finding that they were entitled to $440,000, the value of the vessel at the time of the allision. The appellate court affirmed based upon the longstanding rule that if the cost of repairing a vessel exceeds her pre-casualty fair market value, the limit of compensation is the vessel's fair market value at the time of collision. On the record before it, the appellate court also declined to disturb the district court's well-supported credibility determination regarding the fair market value of the vessel. The appellate court held that the district court reasonably credited expert testimony establishing a market value for the Marquessa. The judgment of the district court was affirmed. (4^th Cir, December 14, 2011) 2011 U.S. App. LEXIS 24731

LIABILITY WAIVER RENDERED VOID BY 46 U.S.C. §30509

JOHNSON V. ROYAL CARIBBEAN CRUISES, LTD.

Circuit Court Opinion

Charlene I. Johnson was a passenger on a cruise ship owned by Royal Caribbean Cruise, Ltd. Before purchasing a ticket to participate in an on board attraction, Johnson was instructed to sign her name to an electronic waiver. When she signed her name to the waiver, Johnson agreed to release Royal and its employees from actions arising from any accident or injury resulting from her participation in any or all of the shipboard activities she selected. While receiving instruction for body boarding, from an instructor employed by Royal, the instructor released the board and Johnson fell off the board and suffered a fractured ankle. The maneuver attempted by the instructor was in violation of Royal's safety guidelines for the body board attraction. After Johnson filed a complaint alleging injury due to Royal's negligence, Royal moved for summary judgment, arguing that the waiver precluded Johnson from recovering for her alleged injuries. Johnson filed a cross-motion for summary judgment arguing the waiver was rendered void by 46 U.S.C. §30509. The district court granted Royal's summary judgment motion and denied Johnson's, finding that, even if general maritime law was applicable, 46 U.S.C. §30509 was inapplicable, and the waiver was still enforceable. Johnson appealed the district court's grant of summary judgment in favor Royal, arguing that general maritime law applied and the liability waiver she signed was rendered void by 46 U.S.C. §30509. The appellate court initially noted that general maritime law was applicable and the waiver at issue would only be enforceable if it did not run afoul of 46 U.S.C. §30509, which prohibits “the owner . . . or agent of a vessel transporting passengers between a port in the United States and a port in a foreign country” from including in a “contract a provision limiting the liability of the owner . . . or agent for personal injury or death caused by the negligence or fault of the owner or the owner's employees or agents.” The appellate court found that the waiver at issue was clearly a contract with a provision that limited the liability of Royal. The court observed that the statute contains no exceptions regarding the type of activity in which the passenger is partaking when the injury occurs nor where the particular provision is found—whether on the back of a ticket or in a separate, signed, electronic document as here. The appellate court concluded that the district court failed to look to the plain and unambiguous meaning of the language of the statute and apply it to Johnson’s case. Had the district court done so, it would have been clear that the statute most certainly applies, and Johnson’s waiver was rendered void by 46 U.S.C. §30509. The appellate court reversed the judgment of the district court and remanded the case for further proceedings consistent with this opinion. (11^th Cir, December 20, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 25240

JALDHI ALSO PRECLUDES ATTACHMENT OF FUNDS IN A CRIS ACCOUNT

INDIA STEAMSHIP COMPANY LIMITED V. KOBIL PETROLEUM LIMITED

Circuit Court Opinion

India Steamship Company, Ltd. appealed a district court order vacating the attachment, pursuant to Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B, of a check issued by the district court clerk made payable to Kobil Petroleum Limited. India Steamship did not contest that the electronic funds transfers (EFT) were transferred from the bank into the district court's court registry investment system (CRIS) solely as a result of the order of attachment, which the district court subsequently vacated. Nor was there any dispute that the check issued from the CRIS represented the proceeds of EFTs now deemed to be beyond the reach of the district court. The appellate court ruled that wrongfully attached electronic fund transfers (EFTs) do not become attachable when a bank places those funds in a suspense account. The court found that India Steamship had failed to identify any reason why the jurisdictional defect that rendered those EFTs unattachable under Supp. R. Adm. or Mar. Cl. & Asset Forfeiture Actions B would not also render unattachable the same funds in the CRIS. No alchemy by the bank could transform EFTs that could not be attached into property of Kobil that could be attached. Accordingly, the attachment of the CRIS check was no more lawful than was the attachment of the EFTs. Further, whether Fed. R. Civ. P. 62(a) applied to stay the execution of the release order, had nothing to do with whether the CRIS check was properly subject to attachment. The order of the district court was affirmed. (2^nd Cir, December 13, 2011) 2011 U.S. App. LEXIS 24585

BERRIGAN REFUSES TO FOLLOW LEMELLE’S LEAD ON RESTITUTION CLAIM

DOLMO V. GALLIANO TUGS, INC., ET AL

After Celso Dolmo sued his former employer, Galiano Tugs, Inc., under the Jones Act and general maritime law for injuries he allegedly suffered while working for Galiano. A compulsory counterclaim was filed by Galiano, asserting that Dolmo’s accident was "fabricated" and seeking the recovery of costs and attorney's fees in excess of $225,000.00, for having to needlessly defend themselves against fraudulent, groundless litigation, together with appropriate general damages and punitive damages. Dolmo moved to dismiss Galiano’s counterclaim pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Galiano’s claims were "facially invalid" based on a lack of evidence. Galiano countered that it has no legal liability at all to Dolmo under the Jones Act or general maritime law because the accident did not occur, which prompted its "defenses" including fraud and the McCorpen defense. Galiano also argued that it is entitled to damages from Dolmo for fraud and misrepresentation, based on La. Civ. Code arts. 2315 and 1953. In addressing the legal issue, of whether or not Galiano could counter-claim against the seaman plaintiff for fraud and misrepresentation and recover as damages attorney's fees and costs attendant to their legal representation, the court noted that its “research” had not uncovered a case extending the McCorpen defense into such an affirmative counterclaim or otherwise recognizing the viability of such a claim. While acknowledging Judge Lemelle’s recent ruling allowing such a counterclaim in Boudreaux v. Transocean Deepwater, Inc. [see November 2011 Longshore Update], Judge Berrigan nevertheless expressed concern over the lack of authority that a cause of action exists for an employer to claim restitution of maintenance and cure payments from a seaman. Instead, the court found that the threat of being sued for fraud in response to a seaman's personal injury claim would seriously undercut the historical rationale and the very deference that admiralty gives its wards of the court. The court also expressed its concern that recognition of such a cause of action would cause attorneys to refuse to represent injured seamen. The court also expressed its unwillingness to be the first to subject a jury to Galiano’s prayer for the recovery of the attorney's fees and costs expended in association with the defense of Dolmo’s lawsuit, as there was no legal authority, meaningful legal discussion or other interest in analyzing the issue. The court did note that Judge Lemelle had certified his ruling in Boudreaux to the Fifth Circuit, on joint motion of the parties. Considering that the Boudreaux issue soon will be presented to the Fifth Circuit, the underlying relatedness of the issue presented in that case, and that common counsel is shared by the plaintiffs in both cases, Judge Berrigan noted that certification under Rule 54(b) would be especially appropriate on Galiano’s counterclaim. The court granted Dolmo’s motion to dismiss Galiano’s counterclaim with prejudice under Fed. R. Civ. P. 54(b). (USDC EDLA, December 28, 2011) 2011 U.S. Dist. LEXIS 148921

Updater Note: The rational that Ginny used to support her decision here is just plain scary - wards of the court; attorneys won’t represent seaman; I don’t want to be first. What is the alternative, Judge Berrigan? Do we just continue to countenance fraudulent claims, with no recourse for the employers that are preyed upon by maritime shylocks? It would have been nice to see you exert the same backbone that Judge Lemelle exhibited in Boudreaux, instead of just leaving the issue for the 5^th Circuit and driving up litigation costs. Believe it or not, some of your “wards” are outright frauds.

TWICE PERMANENTLY DISABLED? WHY BOTHER DOING AN FCE?

COOK V. BAYOU TUGS, INC.

Steven Earnest Cook filed his personal injury lawsuit against Bayou Tugs Inc., pursuant to the Jones Act, alleging he was a seaman and member of the crew of a vessel owned and operated by Bayou Tugs. Cook claimed that his vessel was hit by another vessel that was being moved by another employee, and the impact caused a refrigerator to fall on him, pinning him against the cabinet counter top and the refrigerator. As a result, Cook allegedly sustained injuries to his right knee, which eventually required surgery. Cook voluntarily underwent an independent medical examination and the examiner concluded that Cook had obtained maximum medical improvement, but also found that Cook could not flex his knee more than 90 degrees and would be restricted from climbing steep narrow steps, one of the requirements of a tugboat Captain. Bayou Tugs asked its medical consultant “whether a functional capacity evaluation would aid in determining Plaintiff's ability to return to work as a tugboat captain.” The examiner replied in the affirmative, but expressed concern about the validity of the test and indicated that any FCE would have to be ordered by the treating physician. Bayou Tugs moved to compel a Functional Capacity Evaluation, arguing that Cook had claimed that as a result of his injury and subsequent left knee surgery, he could not return to work as a tugboat captain. Defendant further argues that an FCE was necessary to assist the jury. In opposition, Cook argued that Bayou Tugs was not entitled to an FCE because Cook voluntarily attended an IME, conducted by Bayou Tugs’ independent medical examiner, who did not indicate that an FCE was necessary. Cook further argued that both Cook’s treating physician and Bayou Tug’s independent medical examiner are in agreement that Cook is physically restricted from performing the tasks of a tugboat captain. Bayou Tugs responded, arguing that an FCE was warranted because this was the second time that Cook had claimed that he could not return to work as a captain, noting that in connection with a previous injury to the same knee, Cook had testified that he was unable to return to work as a result of the injury. Despite this testimony, Cook returned to work and earned his captain's license, and was eventually hired by Bayou Tugs. The court initially focused on the fact that both Bayou Tugs’ independent medical examiner and Cook’s treating physician agreed that Cook cannot perform the physical requirements of a tugboat captain. The court next observed that one of the purposes of FRCP 35 is to level the playing field when a party's physical or mental capacity to engage in gainful employment is at issue. The court found that, in this case, there was playing field to level. None of the circumstances to justify a second examination of Cook were present; thus, Bayou Tugs had not established a stronger showing of necessity for an FCE. Finally, the court was not persuaded by Bayou Tugs’ argument that an FCE is warranted, because this is the second time that Cook had testified that he cannot return to work as a result of an injury to his knee, because Bayou Tugs had failed to provide the court with any medical testimony regarding Cook’s previous case. The court concluded that Bayou Tugs had not established good cause for an FCE, and thus has not met part two of the two-part test for a Rule 35 examination. The motion to compel an FCE was denied. (USDC EDLA, November 29, 2011) 2011 U.S. Dist. LEXIS 136841

NO SUMMARY JUDGMENT, BUT YOU MAY WANT TO SETTLE THIS ONE

LANDRY V. CHET MORRISON CONTRACTORS, LLC, ET AL.

Jacob Landry was a seaman assigned to a pipelay barge, owned and operated by Chet Morrison Contractors, LLC (CMC). His job involved pulling a lever to allow pipes to roll on to a welding rack, covering the pipe so other workers could weld it, and walking back and forth between ends of the rack of pipes. Landry was allegedly injured when slipped and fell on an empty 20-ounce water bottle which was on the floor of the workspace. There is no indication that there was water on the floor or that there were any other problems with traction. Landry sued CMC, pursuant to the Jones Act and general maritime law, alleging that the water bottle was present because of CMC’s negligence or that it was an unseaworthy condition of the barge. CMC moved for partial summary judgment on Landry’s claims of Jones Act negligence and unseaworthiness, contending that at the time of the incident, Landry was engaged in an easy job that simply involved walking, pulling a lever, and covering pipe. CMC argued that slipping on an open and obvious water bottle was entirely the result of Landry negligence and failure to look where he was walking, and that the bottle was not an unseaworthy condition. The court initially noted that the record was devoid of evidence of where the bottle came from. CMC argued that Landry’s deposition established that he was adequately trained to look where he was stepping and that the sole cause of the accident was Landry’s failure to look where he was going. The court concluded that summary judgment was inappropriate, as there were genuine factual disputes as to the extent to which Landry or his co-worker were negligent in failing to see the water bottle on the deck of the barge, and CMC may be liable if the co-worker was negligent. Nonetheless, the court observed that, although Landry survived summary judgment, he may face a significant hurdle at trial in avoiding a finding of his own comparative negligence at a high, if not fatal, percentage. The court also concluded that the loose water bottle could have been an unseaworthy condition depending on how long it remained on the deck, and whether it made the vessel unseaworthy was a question for the trier of fact. Here again, the court noted that at trial Landry would face significant and potentially insurmountable issues of comparative negligence. CMC’s motion for partial summary judgment was denied. (USDC EDLA, December 9, 2011) 2011 U.S. Dist. LEXIS 142035

SOME CLAIMANTS ARE JUST PLAIN GREEDY

DELANCY V. U.S. SEAFOODS, LLC. ET AL.

Donald Delancy brought a seaman's injury action pursuant to the Jones Act and general maritime law, seeking to recover damages for a dental injury he allegedly sustained while working aboard a fishing vessel, together with maintenance and cure. Delancy’s tooth # 25 was allegedly fractured when he was hit in the mouth by a wrench that was dropped by another crew member during a fall. The parties cross-moved for summary judgment, U.S. Seafoods asking that liability, if any, be limited to a single tooth, and Delancy asking for summary judgment as to liability under the Jones Act and general maritime law. The court granted U.S. Seafoods’ motion for summary judgment, limiting liability to damages directly attributable to injury and loss of tooth # 25, but found that issues of fact regarding the accident that caused injury to Delancy’s tooth precluded summary on his Jones Act negligence and unseaworthiness claims, and denied Delancy’s motion. The matter was then set for trial, and the parties agreed to try the issues to the bench on written submissions rather than live testimony. U.S. Seafoods admitted liability under the Jones Act for the purpose of the trial. Thus, the only issue remaining to be determined by the court was the amount of damages. Delancy requested $45,000 in damages; U.S. Seafoods contended that an amount between $1500 and $2500 was more appropriate. Although the court found Delancy’s allegations that he suffered extreme pain in his mouth after the injury was credible, it also noted that Delancy delayed as long as five weeks after returning home before seeking dental treatment. The court held that Delancy had not met his burden of proving, by a preponderance of the evidence, that his pain was extreme for a full month. Further, the court found the Delancy’s claim, that he continues to suffer pain at a level of 5 to 7 on a scale of 10, on a daily basis, was not credible in light of his failure to seek dental care for three years after his initial dental treatment. The court found that $2500 would reasonably and fairly compensate Delancy for the pain he experienced in the weeks following the injury to his mouth. (USDC WDWA, December 14, 2011) 2011 U.S. Dist. LEXIS 144033

PUNITIVE DAMAGES HELD NOT RECOVERABLE IN A MARITIME CONTRACT CASE

RYAN MARINE SERVICES, INC., ET AL V. HUDSON DRYDOCKS, INC., ET AL

Ryan Marine Services Inc. entered into a written time and materials contract with Hudson Drydocks Inc. to repair and overhaul a vessel, which was owned by Columbia Star Inc. and operated by Ryan. During the course of the repair work, the vessel caught fire. Ryan asserted that Hudson's unqualified personnel caused the fire. Additionally, Ryan contended that the cleanup and repair after the fire caused the vessel to be in drydock for an unreasonably extended period of time and that Hudson overcharged or misrepresented the nature of its services. Ryan and Columbia filed an action for breach of contract and fraud against Hudson, its subcontractor, and their insurers, which included a claim for punitive damages. Hudson moved for partial summary judgment, asserting that plaintiffs cannot recover on their punitive damages claim, arguing that under maritime law, punitive damages are unavailable in a purely contractual case. Ryan argued that absent statutory restrictions, the punitive damages remedy exists and should be applied in this case, relying on the opinion of the Supreme Court in Townsend. The court began its analysis by acknowledging that the Supreme Court recognized in Townsend, punitive damages have long been available at common law. However, that did not mean that punitive or exemplary damages are available in all cases under the common law. As the Fifth Circuit recognized in Guevara, punitive damages are generally unavailable for breach of contract. As of yet, the Fifth Circuit had not extended Townsend to contract claims. Similarly, the court noted it had been unable to locate an opinion from any other circuit addressing the scope of Townsend in a contract case. Therefore, the Court concluded that, generally, punitive or exemplary damages are not recoverable in contract cases. Punitive or exemplary damages are recoverable only if the conduct which constitutes the breach is also a tort for which punitive damages are recoverable. Hudson's motion for partial summary judgment was granted. (USDC WDLA, December 13, 2011) 2011 U.S. Dist. LEXIS 144036

DOCTORS WILL SAY ANYTHING THEY ARE PAID TO SAY-IT’S NOT EVIDENCE

LEAKE V. UNITED STATES OF AMERICA

Army Joe Leake worked aboard a U.S. Naval Ship as an able-bodied seaman and, during his last week of work, spent three hours painting the laundry room and four days painting a stairwell on the ship. A week later, Leake allegedly began feeling ill was admitted to a hospital and diagnosed with acute liver failure, which necessitated an immediate liver transplant. Leake claimed that his illness was the result of his work as a painter on the naval cargo ship and he sued the United States of America, under the Jones Act and general maritime law. Leake attempted to establish causation for his injuries through experts, who identified three chemical compounds found in the paints and thinners that could cause liver damage: methyl n-amyl ketone ("MAK"), n-butanol and psuedocumene and opined that Leake developed liver failure from his exposure to known hepatotoxins that were inhaled in high concentrations in enclosed spaces over a period of time. The United States moved exclude the reports and testimony of Leake’s causation experts, and for summary judgment on his claim. In reaching their conclusions, Leake’s experts primarily relied upon: (1) the temporal relationship between Leake’s exposure and his injury; (2) the "pattern of injury" to Leake’s liver, which, in their view, showed signs of an "immune-mediated" response; (3) a 1984 study which reported that the exposure of rats to radioactive labeled MAK caused the incorporation of the radioactivity into three unidentified liver proteins; (4) "precedent" describing the immune-mediated reaction that occurs following "halothane" exposure; and (5) a differential diagnosis, which is "a standard scientific technique which identifies the cause of a medical problem by eliminating the likely causes until the most probable one is isolated. The United States asserted that these opinions should be excluded as unreliable, primarily because there is no scientific study that suggests MAK is capable of causing acute liver failure. Leake conceded that there were no published studies addressing an immune-mediated liver failure resulting from exposure to the organic solvents found in the paints and thinners, but argued that the lack of a published study directly addressing his situation should not preclude his experts from offering a reliable opinion on general causation, particularly considering the temporal analysis and differential diagnosis performed by his experts. The court observed that, although Leake's experts contended that there was a temporal relationship between Leake’s exposure and injury, they failed to point to any scientific evidence to suggest that the pattern or timing of his exposure was "sufficient" to "prime" him for an immune-mediated reaction and then facilitate such a reaction. The court found that the scientific evidence relied upon by Leake’s experts in support of their general causation opinion failed to pass muster under Heller and Daubert, even in light of their reliance upon temporal proximity and a differential diagnosis. Nor had they pointed to any scientific evidence or an example from their clinical experience to suggest MAK, like haltohane, was capable of giving rise to an immune-mediated response or liver failure. The court concluded that Leake’s experts failed to offer reliable opinions that would assist the trier of fact regarding the cause of Leake’s injury and granted the motion to exclude their opinions. Further, as the exclusion of this evidence precluded Leake from establishing causation, the court also granted the motions for summary judgment as to each of Leake’s claims. Leake’s case was dismissed with prejudice. (USDC EDPA, December 29, 2011) 2011 U.S. Dist. LEXIS 149634

IF YOU ARE GOING TO CHARTER SOMETHING, PUT IT IN WRITING

COLLETTI V. TIGER TUGZ, LLC, ET AL.

Keith Colletti, was employed by Tiger Tugz, LLC as a deckhand and was assigned by his employer to build a tow with six barges, owned by Mississippi Louisiana Dirt Co., LLC (MLDC), that Tiger Tugz was contracted to transport. Colletti and another deckhand began to prepare the barges for departure. Colletti assisted the other deckhand in starting a pump so that water could be removed from a hopper barge. When the pump started, Colletti was standing in front of the discharge nozzle. To avoid getting wet, he moved quickly out of the way but lost his balance. He reached for the wire handrail, but he alleged that the wire was not taut and failed to prevent him from falling into the hopper. Colletti claims that he was injured in the fall, and asserted claims against MLDC, Tiger Tugz, and others. MLDC moved for summary judgment in its favor with regard to Colletti's unseaworthiness and negligence claims. MLDC argues, first, that a seaman such as Colletti who is employed by and crewing a tug cannot assert an unseaworthiness cause of action against a barge owned by a non-employer. MLDC also argued that its bareboat charter of the barge to Cahaba Disaster Recovery, LLC, relieves MLDC of liability for the accident. MLDC asserted that the coaming was removed and replaced with the wire handrail after the barge was bareboat chartered to Cahaba, relieving MLDC of liability for Colletti's accident. Colletti, Cahaba, and Tiger Tugz opposed the motion, arguing that MLDC's motion is moot with regard to Colletti's unseaworthiness claim, which was eventually withdrawn as it pertained to MLDC, and arguing that because the hopper barge was not bareboat chartered to Cahaba, there was no basis for MLDC's motion for summary judgment on the negligence claim. The court found that MLDC had failed to satisfy its burden of establishing that there was a bareboat charter from MLDC to Cahaba. The conflicting testimony of the two corporate representatives on the characterization of the relationship between MLDC and Cahaba relating to the hopper barge created a genuine issue of material fact that precluded summary judgment in favor of MLDC. Additionally, the court found that there was a genuine issue of material fact concerning the modification of the barge. The court declined to infer the existence of a bareboat charter from the circumstances concerning the possession and use of the hopper barge. Accordingly, MLDC’s motion for summary judgment was denied. (USDC WDLA, December 16, 2011) 2011 U.S. Dist. LEXIS 145606

I THINK ITS COMPLICATED. I WANT THE EXPERTS IN

MARIN V. FALGOUT OFFSHORE, LLC

Mario Marin claimed that while he was employed by Falgout Offshore, LLC, working as a crew member of their vessel, he was required to manually pull and/or lift boxes containing gallon jugs of water out of side loaded containers. As a result, Marin alleges that he sustained serious permanent injury. Marin sued Falgout, alleging Jones Act negligence, unseaworthiness and entitlement to maintenance and cure. Falgout answered Marin’s Complaint denying any liability. Prior to trial, Falgout moved to exclude Marin’s proffered experts. Marin intended to call Robert E. Borison as a safety expert, who opined that Marin’s alleged injury was caused by the improper design of the grocery container which required an unsafe lifting position to unload it. Additionally, Marin intended to call Dr. Gerald S. George, Ph.D, to testify as an expert in biomechanics, who opined that lifting under the limitations imposed by the grocery container constituted a hazardous lifting condition and imposed a compressive spinal load sufficient to cause Marin’s lower back injury. Falgout moved to exclude both experts, arguing that their opinions are irrelevant and unreliable because they are based on assumptions contradicted by the testimony of fact witnesses. Falgout also argued that both experts offer common-sense opinions based on generalized knowledge that would not assist the trier of fact. The court found that Falgout’s criticism of Mr. Borison and Dr. George did not warrant their exclusion. Although Falgout argued that the opinions were based on assumptions not proven by the record, disputes as to the factual basis of an expert opinion go to the weight of that opinion, not its admissibility, and are ripe for cross-examination. With respect to whether the opinions would assist the trier of fact, the court found that this was more complicated than a simple lifting case, and held that the testimony of Mr. Borison and Dr. George may assist the court as trier of fact, and exclusion of their testimony was not appropriate. Falgout’s motions to exclude the experts was denied. (USDC EDLA, November 30, 2011) 2011 U.S. Dist. LEXIS 137743

ARBITRATION CLAUSE ENFORCED AGAIN BASED ON LINDO

LAZARUS, V. PRINCESS CRUISE LINES, LTD.

Simone Lazarus is a citizen of South Africa who allegedly sustained injuries while employed on the vessel of Princess Cruise Lines, Ltd. This case involves the employment contract between Lazarus and Princess, that contained a foreign arbitration clause. Lazarus filed a Complaint against Princess in Florida state court, alleging negligence under the Jones Act, unseaworthiness of the ship, failure to provide maintenance and cure, failure to treat, and wages and penalties under the Seaman's Wage Act. Princess filed a Notice of Removal and moved to compel arbitration under Article 14 of Lazarus’s employment contract. Lazarus argued that the arbitration provision was unenforceable for public policy reasons. In light of Lindo, the court held that the public policy defense may be raised only at the arbitral award-enforcement stage. Consequently, because the four jurisdictional prerequisites for compelling arbitration had been satisfied, and because Lazarus did not argue that the arbitration provision contained in the employment contract was null and void, inoperative, or incapable of being performed, the court found it appropriate to grant Princess’s Motion to Compel Arbitration. (USDC SDFL, December 6, 2011) 2011 U.S. Dist. LEXIS 140123

Quotes of the Month . . . “Challenges make you discover things about yourself that you never really knew. They're what make the instrument stretch -- what make you go beyond the norm.”--Cicely Tyson

“If there is no struggle, there is no progress.”--Frederick Douglass

“How easy it is to judge rightly after one sees what evil comes from judging wrongly!”--Elizabeth Gaskell

Tom Langan

Corporate Risk Manager

Weeks Marine, Inc.

Redistribution permitted with attribution.

December 2011 Longshore Update

2011-12-01T03:17:00.000-08:00

December 2011

Notes From Your Updater - The United States Supreme Court will hear oral argument in the case of Roberts v. Sea-Land Services , Docket 10-1399, on Wednesday, January 11, 2012. It will be the second case argued. The question is limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded. You may use these links to review the Petition for Certiorari, the Brief in Opposition, and the Reply Brief in the case.

Congratulations to Miranda Chiu. She has just been officially appointed the Director, Division of Longshore and Harbor Workers’ Compensation, Office of Workers’ Compensation Programs, in the U.S. Department of Labor. Miranda has been serving as Acting Director since the retirement of Mike Niss, and this announcement makes it official. I am informed that there was some pretty stiff competition for the position, which should make the appointment even more rewarding. Miranda previously served as the Chief, Branch of Policies and Procedures. She had actually put in for retirement before Mike Niss, but then agreed to stay on as temporary Director. Now that the appointment is official, we hope she stays on for some time.

I have also learned that Carl Abildso in the Longshore Division’s National Office has retired. Anyone who’s ever paid a Special Fund assessment bill or put a case into the Special Fund knows Carl. Have a great retirement Carl.

A petition for certiorari has been filed with the U.S. Supreme Court in the case of Green v. United States of America, Docket No. 11-403 [see April 2011 Longshore Update]. The question presented to the Court is : Whether under the Suits in Admiralty Act (“SAA”) and the Public Vessels Act (“PVA”), the United States is subject to the same liability in-rem for the negligence of those conducting its business as agents for the vessels it owns, as would attach to a private vessel owner, i.e., according to the principles of law and the rules of practice applicable in like cases between private parties, as provided by statute. No response to the petition has been filed.

On November 28, 2011, the U.S. Supreme Court denied the petition for certiorari filed in the case of Wheeler v. Newport News Shipbuilding and Dry Dock Company, et al, Docket No. 11-107. This was the case in which the 4th Circuit asked for additional briefing after oral argument on the issues of legislative history and judicial deference to the Director, and finally decided that, at least under section 22 of the LHWCA, “compensation” does not mean medical payments paid under section 7 of the Act.

On November 16, 2011, the 11th Circuit Court of Appeals republished its recent opinion in Boroski v. Dyncorp International, et al. If my readers will recall, this opinion was originally filed and published on October 27, 2011 [see November 2011 Longshore Update]. The only change I could find from the originally published opinion was a minor change to footnote 5 and a couple citation changes. I’m not sure if the court forgot it had already published the opinion or whether they are just trying to get the attention of the U.S. Supreme Court with this amicus opinion, before the Supremes hear the Roberts case.

ALJ GETS IT RIGHT AND BRB SCREWS IT UP - SO WHAT ELSE IS NEW? (CONT.)
CALEB BRETT, L.L.C., ET AL V. DIRECTOR, OWCP, ET AL. [CARTER]

Circuit Court Opinion
BRB Decision
ALJ Decision

Rick Carter allegedly injured his back and neck at work in 1991, and he has been permanently totally disabled since October 1, 1993. In 1996, the parties entered stipulations, and the ALJ awarded Carter disability and medical benefits based on those stipulations. Carter chose a chiropractor as his treating physician. The employer, Caleb Brett, LLC, paid all benefits, including medical benefits, until February 2006, when it stopped paying for myofascial release technique and ultrasound treatments billed by the chiropractor and massage therapy being rendered by a therapist at the chiropractor’s request. Carter filed a claim for these medical benefits. On employer’s motion for summary decision, the ALJ found that the unpaid disputed treatment provided by the chiropractor was not reimbursable because it exceeded the Act’s regulatory provision limiting chiropractic treatment to manual manipulations to treat subluxations. On appeal, the BRB distinguished Carter’s case from the Board’s holding in Bang v. Ingalls Shipbuilding, Inc., relied on by the ALJ. Then, essentially ignoring the restrictive language regarding reimbursement to chiropractors found at §702.404, the Board turned to the broad definition of covered “medical care” under §702.401(a) to justify its holding that the ALJ erred in denying payment for Carter’s massage therapy [see August 2009 Longshore Update]. While Caleb Brett's subsequent appeal of this decision was pending before the Fifth Circuit, Caleb Brett’s insurer attempted to appeal the Board’s decision, but mistakenly filed its Petition for Review with the Board, instead of with the court of appeals. The insurer consequently failed to file a proper timely appeal of the BRB order within the applicable sixty-day window. Meanwhile, the insurer also refused to reimburse the unpaid bills for the adjunct therapies. In response, Carter petitioned the OWCP district director for a supplemental order declaring default under the 1996 continuing compensation order. Perhaps convinced by the insurer’s argument, that the BRB’s decision was not an award of benefits, Carter submitted a filing to the Board entitled “Motion for Clarification,” seeking confirmation that the BRB’s initial order had in fact been a final award of compensation. In a subsequent order the Board responded to Carter’s motion by clarifying that a reversal of the ALJ’s denial of medical benefits constituted an award of medical benefits. Carter ultimately obtained a Supplemental Order Declaring Default in the amount $3,220.20 from the District Director, which he had enforced by the district court [see November 2011 Longshore Update]. Caleb Brett and its insurer filed a timely petition for review of the BRB’s second order of clarification. The appellate court held that it lacked jurisdiction to consider the appeal, because the petitioners were clearly seeking review only of the BRB’s original order reversing the ALJ’s decision. Yet, they failed to advance any argument as to how the appellate court could properly consider the merits of the original BRB order. Either that order was a final order within the meaning of Lazarus, in which case it became unreviewable sixty days after it was issued, or neither the First nor the Second Board Order was a final order. The appellate court concluded that there was no route by which it could reach the merits of the BRB’s original order. The petition was dismissed for lack of jurisdiction to consider the requested relief under §21(c) of the LHWCA. (5th Cir, November 15, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 22965
Updater Note: It is really a shame that this case was not heard on the merits, because of an appellate screw up by the attorney representing the employer and its insurer. I will say it again . . . the most atrocious fact about this case is that the claimant is still getting “massage therapy” two decades after his original injury. The whole idea of palliative care like this being “reasonable and necessary” medical treatment under the Act is outrageous and needs to be reexamined by the courts. And people wonder why we can’t afford universal health insurance in this country.

IS APPLICABLE SUBSTANTIVE LAW FEDERAL MARITIME LAW OR OCSLA?
HAMM V. ISLAND OPERATING COMPANY, INC., ET AL.

Circuit Court Opinion

Rodney Hamm allegedly suffered injuries to his back and hips while working on the deck of a vessel owned and operated by his employer, Rodan Marine Services II, LLC. At that time, the vessel was delivering equipment to and picking up equipment from a permanent oil platform off the coast of Louisiana, on the Outer Continental Shelf. A crane, operated by Island Operating Company, Inc. (IOC), was moving equipment to and from the platform and the vessel. Hamm and a co-employee were helping to guide the equipment and to connect it to or disconnect it from the crane. While he was performing this task, a cargo basket became caught on the hook of the crane and swung toward Hamm, pinning him between the cargo basket and the side of the vessel. Hamm sued IOC and Rodan. defendant crane operator and defendant employer. The trial court denied IOC’s motion to dismiss or alternatively for summary judgment, based on Louisiana's one-year limitations period, which the operator asserted was the applicable substantive law under the Outer Continental Shelf Lands Act (OCSLA). IOC and Rodan filed an interlocutory appeal of the trial court’s denial of its motion, arguing that Louisiana's substantive law applied to Hamm’s claims against it because OCSLA adopted the law of the adjacent state as the governing law for the Outer Continental Shelf. Hamm did not contest that Louisiana law applied if OCSLA was the governing substantive law. Hamm countered, however, that the district court correctly held federal maritime law to be the applicable substantive law, and that under federal maritime law, the seaman had three years within which to file suit. The appellate court concluded that the district court correctly held that federal maritime law was the applicable substantive law. The location element was satisfied because the injury was suffered on the deck of a vessel afloat on navigable water. The connection element was met because the incident was potentially disruptive of maritime commerce. IOC had no right to a jury trial because the seaman elected a non-jury trial under FRCP 9(h). The district court's order was affirmed. (5th Cir, November 16, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 22984

OCSLA DOES NOT EXTEND THE REACH OF UNITED STATES LAW TO OCS VESSELS
BROWN, ET AL V. OFFSHORE SPECIALTY FABRICATORS, INC., ET AL.

Circuit Court Opinion

The Fifth Circuit Court of Appeals has rendered an opinion in a closely watched case involving a putative class action brought against several oil and gas companies and several companies that provide labor for offshore oil and gas projects. The plaintiffs contended that the defendants maintained a hiring scheme to employ foreign workers on the Outer Continental Shelf, employing workers who are neither citizens nor workers authorized to be in the United States, arguing that this conduct violates the Immigration and Nationality Act (INA), and therefore qualifies as racketeering activity. The plaintiffs further assert that this unlawful hiring scheme results in depressed wages and degraded working conditions to the detriment of U.S. citizens and legal residents who work on the Outer Continental Shelf. The plaintiffs alleged violations of the Racketeer Influenced and Corrupt Organizations Act (RICO) and the Outer Continental Shelf Lands Act (OCSLA). Under the OCSLA, the plaintiffs pursued both a personal right of action for economic damages and an enforcement action under the OCSLA's citizen suit provision for injunctive relief. The district court eventually disposed of all of the plaintiffs' claims, dismissing some and granting summary judgment against others. The court then entered a final judgment dismissing all claims. The plaintiffs appealed contending that the district court erred in granting summary judgment because, regardless of the free-floating character of the defendants vessels, the INA still applies to their conduct, because it is triggered when foreign workers step foot on U.S. soil before being taken to the Outer Continental Shelf, and remains effective even if those workers perform their work on a free-floating vessel. The appellate court disagreed with plaintiffs’ argument, holding instead that OCSLA does not extend the reach of United States law to the defendants' vessels and, therefore, defendants do not violate RICO because the law that would make their conduct racketeering activity—the INA—does not apply in the place where that conduct occurred, namely vessels floating on the waters of the Outer Continental Shelf. The plaintiffs further contended that the exemptions the defendants possess to the OCSLA manning requirements do not shield them from RICO liability because those exemptions were fraudulently obtained. However, the appellate court concluded that the plaintiffs failed offer any evidence to contest the validity of the exemptions. The appellate court next turned to plaintiffs’ contention that the OCSLA creates a private right of action for damages. The appellate court rejected plaintiffs’ contention, holding, instead, that the plaintiffs cannot state a claim for a private right of action for damages under the OCSLA, and the district court's dismissal of this cause of action was proper. The appellate court also rejected plaintiffs’ contention that the district court erred in disposing of their OCSLA enforcement action based on their failure to give proper pre-suit notice to the defendants. Questions of prejudice and fairness notwithstanding, the appellate court found that no plaintiff gave the required notice before bringing this action. The appellate court held that deficient attempts at notice given by two former plaintiffs, neither attempt occurring before the original complaint was filed, could serve to anchor all of the plaintiffs' claims. Because no plaintiff gave the type of notice required by the OCSLA, we need not reach the plaintiffs' argument that notice by one plaintiff can serve as notice for all. Finally, the appellate court found that plaintiffs did not have standing to bring an OCSLA enforcement action, because the plaintiffs' complaint failed the redressability element. Enjoining the defendants' conduct, as the plaintiffs request, would not redress the wages they already lost or the working conditions they already endured. The plaintiffs thus lack constitutional standing, and the district court's dismissal was proper. The judgment of the district court was affirmed in all respects. (5th Cir, November 23, 2011) 2011 U.S. App. LEXIS 23653

WHO CLIMBS A JACOB’S LADDER WITH A CLIPBOARD? (CONT)
MCCULLER V. NAUTICAL VENTURES, LLC, ET AL.

Benjamin McCuller was employed by Halliburton Energy Services at its marine terminal, where and offshore supply vessel, owned and operated by Nautical Ventures was docked to take on dry cement. McCuller's job required him to board the vessel to attach hoses to the vessel's manifold to accomplish the cement loading. Vessel access was accomplished by means of the vessel's Jacob's ladder which was secured and put in place by the vessel's crew. McCuller used the Jacob's ladder several times without incident but on his last descent, while he was carrying a clipboard in one of his hands, one of the rungs allegedly broke and he fell some five feet to the dock and allegedly sustained injuries to his back and knees. McCuller and his wife (jointly referred to as McCuller) filed suit against the vessel owner under general maritime law and vessel negligence under §905(b) of the LHWCA. Following a bench trial, the court declined to find it more likely than not that the damaged condition of the ladder would have been open and obvious to McCuller, who was climbing the ladder. It was not his employer's ladder. He had no duty to conduct a detailed inspection of the ladder and would not have known what to look for if he had inspected it. However, the court did find that McCuller violated Halliburton safety procedure and defied common sense by climbing the Jacob's ladder with a clipboard in his hand. The court apportioned fault for the accident by attributing 70% to Nautical Ventures and 30% to McCuller. The court awarded McCuller and his wife $1.8 million dollars in damages (plus prejudgment interest on all past damages) reduced by McCuller’s 30% contributory negligence [see November 2009 Longshore Update]. McCuller appealed the district court’s finding of comparative fault and three aspects of the district court’s damages award, and Nautical cross appealed the district court’s finding of liability. The appellate court affirmed the district court’s findings of liability and comparative fault, and the district court’s decision not to award damages for the loss of household services and the cost of in vitro fertilization. However, the court vacated and remanded, in part, the district court’s damages award in respect to expenses for the McCullers’ future medical needs [see August 2011 Longshore Update]. On remand from the 5th Circuit, McCuller moved for a new trial on the issue of future medical expenses, or alternatively, to increase future medical compensation. The court initially acknowledged the 5th Circuit’s remand instructions, that it found the award of $100,000 for future medical expenses "insufficiently particular." McCuller argued that there was neither statutory nor jurisprudential prohibition against considering the events which have occurred since his original trial and contended that the court can, and should, address the known changes to his medical costs by considering new and available evidence, and that equity weighs in favor of considering new evidence now available. Nautical Ventures opposed this motion, arguing that re-opening testimony was not warranted because the already existing record was sufficient to determine future medical expenses. It also maintained there is no jurisprudence supporting the taking of testimony on alleged post-trial changes in circumstances, and argued the court should only review the original trial record in calculating McCuller’s award for future medical expenses. The court initially noted that the appellate court’s partial remand instructed that "the district court, may, of course, make such further findings and conclusions as it may see fit, and may, in its discretion, take further evidence as to damages, or base its findings and conclusions upon the record already made." In McCuller’s memorandum in support of his motion, he asserted that he had to undergo two unanticipated surgeries for injuries stemming from the accident, that his long-term pharmaceutical needs have been more clearly established. The court concluded that consideration of the recent developments would assist in determining a fair and equitable award for future medical expenses. The court also noted that Nautical Ventures would be given the opportunity to rebut any new evidence. While acknowledging that the judicial system values the finality, the court found that in McCuller’s case the interests of justice weigh more heavily in favor of reopening the case for further testimony in order to determine a more accurate and fair award. The court granted the motion for a new trial on the issue of future medical expenses. (USDC EDLA, November 23, 2011) 2011 U.S. Dist. LEXIS 135309

DON’T TRAMPLE ON MY RIGHTS UNDER THE LHWCA
BICKHAM V. ATP OIL & GAS CORP.

Wilbur H. Bickham was employed as an operator by Baker/MO Services, Inc., who in turn was contracted to work for ATP Oil and Gas Corp. on an offshore platform. Bickham allegedly sustained injuries when he, suddenly and without warning, slipped-and-fell while descending stairs, causing him to sustain injuries to his knee, lower back, and opposite leg. Bickham claimed that his accident was the result of fatigue from working an excessive number of hours and lack of adequate lighting. Bickham filed suit against ATP pursuant to the Outer Continental Shelf Lands Act (OCSLA). ATP filed an Answer, denying liability and raising a number of affirmative defenses. ATP also filed a jury trial demand. Baker’s workers’ compensation insurer filed a Complaint of Intervention, alleging it has paid Bickham benefits and medical expenses under the LHWCA, which are continuing, and seeking to enforce a compensation lien on any recovery by Bickham. Both ATP and Bickham filed motions for summary judgment seeking dismissal of the insurer’s intervention claims, arguing that Louisiana law governs the present dispute, by virtue of the OCSLA and, because the insurer waived its right of subrogation against ATP in the Master Services Agreement (MSA) between it and Baker, the insurer had no legal right to recover any benefits it has paid to Bickham. The insurer argued the subrogation waiver was null and void under the Louisiana Oilfield Anti-Indemnity Act. Additionally, the insurer argued that, irrespective of the application of LOAIA, the LHWCA provide it with rights which would be diminished if the intervention was dismissed. ATP responded, claiming claims enforcement of the waiver was appropriate because despite sending a demand letter to Baker, it had not relied upon the indemnification clause in the MSA and had defended the suit on its own. As a threshold matter, the court initially found OCSLA applied and the applicable state law was that of Louisiana. For essentially the same reasons OCSLA was applicable, the LHWCA applied, governing workers' compensation subrogation rights and obligations under §933 of the Act. Citing the Fifth Circuit’s opinion in Hudson the court held that the LOAIA did not operate to void the waiver of subrogation, because ATP had defended the suit on its own after Baker had failed to provide a defense. Nevertheless, the court agrees with the insurer that, despite its enforceable waiver of subrogation, the insurer maintained certain rights under the LHWCA, which it was entitled to pursue through intervention. The motions for summary judgment were granted in part insofar as the insurer’s claims for subrogation rights and denied in part insofar as the insurer’s independent rights under the LHWCA. (USDC EDLA, November 23, 2011) 2011 U.S. Dist. LEXIS 135311

LHWCA CO-EMPLOYEE IMMUNITY PREVAILS
ATES V. B&D CONTRACTING, INC.

B&D Contracting, Inc., a labor personnel contractor, entered into a "Contract Labor Agreement" with VT Halter Marine, Inc., agreeing to provide personnel to satisfy certain labor needs of Halter. Masse Contracting, Inc., another labor personnel contractor, had entered into a similar "Contract Labor Agreement" with Halter, wherein Masse also agreed to provide laborers to Halter. Bram Ates, an employee of Masse, was assigned to work for Halter as a painter. An employee of B&D introduced combustible and explosive industrial solvent into an engine room aboard a tug under construction, which resulted in a flash fire in the tanks located under the engine room. The explosion caused two deaths and injured five individuals. Ates, one of the five injured, sustained severe burns which have required multiple skin-graft procedures. After the explosion, Ates received compensation and medical benefits, through Masse, under the LHWCA. Ates and his wife sued B&D, asserting claims for negligence; gross negligence; negligent hiring, retention, and training; grossly negligent hiring, retention, and training; and loss of consortium. B&D moved for dismissal of all claims on immunity grounds, arguing that Ates failed to produce sufficient evidence to establish tort liability because at the time of the accident in question, B&D’s nominal employee, responsible for the fire, was the borrowed employee of Halter and B&D was under no obligation to provide the employee, hired as an unskilled laborer, with specialized training to work at Halter. The court initially noted that the Fifth Circuit Court of Appeals has determined that §933 of the LHWCA is the exclusive remedy for on-the-job injuries and affords immunity from tort actions. B&D contended that there could be no dispute that Ates was Halter's borrowed servant under §905(a), and was currently receiving benefits under the LHWCA through his nominal employer Masse, which was his exclusive remedy. B&D also argued that because Ates and B&D’s nominal employee were co-employees of Halter, Ates was precluded from recovering from B&D under a common law tort cause of action. The court, after applying the nine Ruiz factors to the case, determined as a matter of law Ates and B&D’s employee were both considered the borrowed employees of Halter. Therefore, the court held B&D was immune under §905(a) and entitled to summary judgment on Ates’ claims. Ates argued that immunity under the LHWCA does not, and should not, bar his claims against B&D for negligent hiring and negligent failure to train, since the co-employee immunity under the LHWCA does not compel that a different claim against B&D for its own independent tort is barred. The court held that B&D was entitled to the same immunity afforded co-employees under the LHWCA, because the undisputed record evidence supported the conclusion that both were borrowed employees of Halter at the time of the accident. The court further found that Ates was unable to establish the existence of any duty or contractual obligation on the part of B&D to provide "skilled" or "trained" laborers to Halter. Therefore, Ates’ claims for failure to train and negligent hiring could not succeed as a matter of law. B&D’s motion for summary judgment was granted. (USDC SDMS, November 9, 2011) 2011 U.S. Dist. LEXIS 129679

SOME OWE A DUTY - SOME DO NOT
SMETANA, ET AL. V. APACHE CORPORATION, ET AL

Billy Smetana, an employee of Wise Well Intervention Services Inc., brought suit against several entities for injuries arising out of an accident aboard a well in the Gulf of Mexico, for negligence based on general maritime laws of the United States, §905(b) of the LHWCA, and Texas law as adopted by virtue of the Outer Continental Shelf Lands Act (OCSLA). Smetana sustained an injury to his lower left extremity when he fell while egressing the vessel onto a fixed platform via a gangway laid across the deck of the vessel to the platform. The overall objective of the project was to plug and abandon Apache's Well on the platform. The defendants named in Smetana’s suit included Apache Corporation, the time charterer, dock owner and platform owner; Montco Offshore, Inc., the vessel owner; Stokes & Spiehler Offshore, Inc. (S&S), the company to provide "company man services"; Tim McGilvray, the "company man" hired by S&S; and LIS Energy Services, Inc., the company to provide an offshore crew. At the time of Smetana's alleged injury, Montco was providing crane services and room and board to Apache's independent contractors. Montco moved for summary judgment, alleging no liability since it did not cause or contribute to Smetana's injury, and thus, did not violate any duty it may have owed to him. Smetana opposed the motion, contending that Montco is liable because it breached its duty to provide safe means of ingress and egress. The court initially found that Smetana was a passenger aboard the vessel he was on, not a member of the crew or longshoreman. Because Smetana was merely a passenger, the court concluded that the Kermarec standard of care was applicable. Applying the Kermarec standard, the issue presented was whether Montco breached its duty of reasonable care to provide Smetana with a safe means of ingress and egress of the vessel. Based on the undisputed facts, the court found Montco played a role in the placement of the gangway. Viewing the evidence in the light most favorable to Smetana, the court held that the record revealed that there remained genuine issues of material fact, especially given the evidence that Montco was involved in the placement of the gangway that ultimately led to Smetana's alleged injury. Montco’s motion for summary judgment was denied. (USDC WDLA, November 21, 2011) 2011 U.S. Dist. LEXIS 134369

SMETANA, ET AL. V. APACHE CORPORATION, ET AL

In a separate ruling in the same case reviewed above, the court granted Apache’s motion for summary judgment. Apache moved for summary judgment, arguing that Smetana could not prove that Apache exercised any control over the positioning of the vessel or gangway. Apache also argued that Texas’s Chapter 95 applies to Smetana’s case, which mandates that a property owner is not liable for the injuries to an independent contractor unless the property owner exercised or retained some control over the work and the property owner had actual knowledge of the danger and failed to adequately warn. Thus, even though Smetana was not injured while working on the well, but rather egressing the vessel, Chapter 95 applied. Apache emphasized the fact that it had no contract with McGilvray, who had input in the positioning of the vessel, and who Smetana argued was Apache’s "eyes, ears and hands" on the job site. Following a thorough review of the predominant case law and legislative history, the court held that the provisions of Chapter 95 were clearly applicable to the facts of Smetana’s case. The court rejected Smetana’s argument that Apache exercised and retained control over the job site through McGilvray, holding that was simply not the case. Apache contracted with S&S, who, in turn, sent McGilvray to do the work. While it is true that McGilvray was involved in the docking of the moor and placement of the gangway, the court found there was too much disconnect between Apache and McGilvray to hold Apache liable for his acts. Accordingly, Apache could not be found liable under Chapter 95 since Apache did not exercise or retain control over the work performed. Because Apache did not exercise or retain control through McGilvray, Smetana’s remaining theories of liability similarly failed. Viewing the evidence in the light most favorable to Smetana, the court concluded that the record failed to reveal any remaining genuine issues of material fact, especially given the evidence that Apache retained no control over the activities that led to Smetana's injury. Apache’s motion for summary judgment was granted. (USDC WDLA, November 21, 2011) 2011 U.S. Dist. LEXIS 134357

And on the Admiralty front . . .

HAPPY ENDING - SEAMAN SUES EMPLOYER - SEAMAN WINDS UP PAYING (CONT.)
DISE V. EXPRESS MARINE, INC, ET AL.

Circuit Court Opinion

Charles Dise worked for Express Marine, Inc. as an assistant engineer on a tug. While operating a skiff, to take draft readings, Dise crashed the skiff into a bulkhead of a railroad bridge, allegedly sustaining injuries as a result of the allision. Dise filed suit against Express Marine under the Jones Act and Express Marine filed counterclaims to recoup its accident-related costs. The court had previously granted summary judgment in favor of Express Marine on Dise’s negligence, unseaworthiness and maintenance and cure claims [see October 2009 Longshore Update]. The only remaining claim after the court granted summary judgment on Dise’s causes of action was Express Marine’s counterclaim for damages to the skiff in the amount of $3,254.96. Express Marine moved for summary judgment, arguing that its counterclaim is permitted under the Jones Act. Dise, however, asserted that the Jones Act bars employer-shipowners from bringing counterclaims against employee-seamen. The court pointed out that, while the Fourth Circuit has not yet ruled on whether the Jones Act precludes a shipowner from filing a counterclaim against an employee for property damage, it had ruled that FELA does not preclude such a counterclaim by a railroad employer. Rejecting the remainder of Dise’s arguments, the court held that Express Marine’s counterclaim was permitted and granted summary judgment in favor of Express Marine on its counterclaim for damages to the skiff, measured as the cost of repairs in the amount of $3,254.96 [see July 2010 Longshore Update]. Dise appealed the district court's grant of summary judgment in favor of Express Marine on his claims for negligence under the Jones Act, unseaworthiness under the general maritime law, and vicarious liability under the Jones Act for negligent provision of medical care, as well as Express Marine’s counterclaim for damage to the skiff, arguing that the evidence established genuine disputes of material fact with respect to several theories of negligence. However the appellate court observed that the district court had addressed each of Dise's theories of negligence in turn and, finding no genuine disputes of material fact, concluded that Express Marine was entitled to judgment as a matter of law. Having had the benefit of oral argument and having carefully reviewed the briefs, record, and controlling legal authorities, the appellate court reached the same conclusion. The appellate court also rejected Dise’s theories of unseaworthiness, finding that he failed to demonstrate that any of the alleged conditions was the proximate or direct and substantial cause of his injury. Dise also argued that Express Marine is vicariously liable for the allegedly negligent provision of medical care following the accident. The appellate court affirmed the district court’s conclusion that in order to be vicariously liable for the medical malpractice of a treating physician, the shipowner must take some affirmative act in selecting or engaging the physician and that Dise had failed to present evidence of an affirmative act on the part of Express Marine sufficient to give rise to an agency relationship with the medical providers as a matter of law. Finally, while leaving for another day the question of whether property damage counterclaims by shipowner-employers against negligent seaman-employees are actionable in every Jones Act case, the appellate court had no hesitation in concluding that Express Marine’s counterclaim did not serve as a liability-exempting device under the particular facts of the case, and applied the rule supported by the weight of authority favoring allowance of Express Marine’s counterclaim. The district court’s rulings were affirmed in all respects. (4th Cir, November 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 23076
Updater Note: Congratulations again to JoAnne Zawitoski, of Semmes Bowen and Semmes, Baltimore, MD, on a grand slam victory in this case.

MATHEMATICALLY-CHALLENGED ARBITRATOR MADE A CLERICAL ERROR
MARTEL V. ENSCO OFFSHORE COMPANY, ET AL.

Circuit Court Opinion

Roy Dana Martel allegedly sustained injuries while a member of a casing crew on an Ensco Offshore Company vessel. Martel eventually filed suit, naming Ensco and Torch Operating Company as defendants. Ensco and Torch thereafter named Ingersoll Rand Company as a third-party defendant in the suit. Martel eventually settled his claims against Ensco and Torch, while they maintained their third-party action against Ingersoll. The district court ordered the third-party action to arbitration, and a judgment in arbitration determined the allocation of fault among the five parties involved, including 25% to Ensco, 15% to Ingersoll, and 50% to Martel for contributing to his own injuries. The judgment in arbitration contained a clerical error, however, computing damages based on a $300,000 total ad damnum, rather than the $3,000,000 total ad damnum to which the parties had agreed. The arbitrator held that his previous judgment had contained only a mathematical error, rather than a substantive one, such that he had jurisdiction to correct it. He reinstated his judgment, except that the monetary computations were amended to be based on a $3,000,000 total award, rather than $300,000. Ensco and Torch moved to have the arbitration award confirmed by the district court. Ingersoll, however, opposed confirmation of the amended award, and moved to vacate the amended judgment, stay all pending arbitration proceedings, and confirm the original judgment in arbitration. Following a hearing, the district court issued a judgment granting Ensco and Torch’s motion to confirm the arbitration award and denying Ingersoll’s motion to declare the arbitration proceedings closed, motion to vacate, motion to stay, and motion to confirm the original judgment in arbitration. Ingersoll filed a timely appeal of the district court’s judgment, arguing that once the arbitrator issued his original award, his jurisdiction over the matter terminated pursuant to the functus officio doctrine. Ingersoll further argued that because none of the prescribed procedures for vacating, amending, or revising a judgment in arbitration were followed here, the district court erred in confirming the amended judgment in arbitration. Conversely, Ensco and Torch maintained that the arbitrator retained the authority to issue an amended judgment, and that the district court properly confirmed that amended award. The appellate court initially noted that the arbitrator’s original award was not confirmed by the district court prior to the arbitrator vacating the award due to his mistake regarding the total award amount. Additionally, a recognized exception to the functus officio doctrine allows an arbitrator to correct a mistake which is apparent on the face of his award. The appellate court found that the arbitrator’s judgment conflicted with the evidentiary documents on which he based his calculations. In addition, at the hearing before the district judge in which Ingersoll requested that the original judgment in arbitration be confirmed, counsel for Ingersoll admitted that the arbitrator’s use of the $300,000 award amount was an error. The court held that the arbitrator’s use of $300,000 as the total award, rather than the agreed-upon $3,000,000, was a clerical error and the judgment of the district court was affirmed. (5th Cir, November 2, 2011, UNPUBLISHED)

BUZBEE DOESN’T CONVINCE 5TH CIRCUIT THAT THE THING SPEAKS FOR ITSELF
PEARSON ET AL V. BP PRODUCTS NORTH AMERICA, INC., ET AL.

Circuit Court Opinion

In 2005, as a precaution due to Hurricane Rita, BP Products North America decided to shut down all of its Texas City Refinery. Following Hurricane Rita, BP decided to audit, evaluate, and “turn around” each of the units at the Refinery on an individual basis before resuming production. To complete the turnaround, BP used independent contractors for most of the work. One such contractor was Fluor Corporation, who accepted the responsibility to control the maintenance work at Pipestill 3B, one of the refinery’s units. In 2007, when the events that gave rise to this lawsuit occurred, Gilbert Cantu, Gregorio Fuentes, and Willie Mays Jr. were among the 450 contractors working for Fluor on the turnaround of Pipestill 3B. The workers allegedly began smelling an odor unlike those one usually smells in a refinery, described as smelling like acetone. None of the hundreds of monitors and detectors designed to detect the release of any harmful gases was triggered. Fluor’s foremen stopped work on Pipestill 3B and allowed any worker to be examined at a local hospital; about one hundred workers went. Upon medical examination, no workers were found to have any exposure injuries that required hospital admission or required them to miss work. Tony Buzbee and Jason Itkin signed up one hundred plaintiffs and filed suit, claiming that their clients sustained injuries from the incident and other previous incidents at the Refinery, which were caused by BP’s negligence. The district court conducted a joint trial of ten plaintiffs. Plaintiffs’ theory was that the gas was carbon disulfide and it came from BP’s Sulfur Recovery Unit. None of the experts engaged by the plaintiffs could identify the odor’s source or its cause. BP moved for judgment as a matter of law, which the district court denied, and the claims were submitted to the jury. As part of the jury’s charge, the district court instructed the jury that it could infer BP’s negligence through the doctrine of res ipsa loquitur. The jury returned a verdict for the plaintiffs and awarded approximately $325,000 in compensatory damage and $100 million in punitive damages. The district court entered final judgment but vacated the jury’s award of punitive damages because plaintiffs failed to prove gross negligence, as required under Texas law. BP appealed, arguing that it was improper for the district court to have instructed the jury on res ipsa loquitur and that absent that instruction, plaintiffs could not show that it was negligent. The appellate court began its analysis by noting that the res ipsa loquitur rule of evidence is applicable only when two factors are present: (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence; and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. The evidence in the case showed there was simply a report of a noxious gas that the plaintiffs claimed caused their injuries. No monitors or detectors registered any harmful gas release. None of the experts could identify where the odor came from or whether it was even from BP’s property. The appellate court concluded that the plaintiffs had failed to show that the character of the accident was one that would not usually occur absent negligence nor that the injury-causing instrumentality was in BP’s control. In such circumstances, the district court should not have instructed the jury on res ipsa loquitur. The appellate court vacated the jury’s verdict and reversed the district court’s denial of BP’s motion for judgment as a matter of law. (5th Cir, November 10, 2011, UNPUBLISHED)
Updater Note: Only three of the original ten plaintiffs’ claims were the subject of this appeal as the other seven plaintiffs settled with BP. Perhaps BP was a bit too quick to settle, in light of the finding of the appellate court. Of course Tony Buzbee has been a thorn in BP’s side for some time now, so they probably tried to make the cases go away for a reasonable amount to avoid litigation costs. They need to recognize that Buzbee has a tough time winning cases outside the Rio Grande Valley.

COAST GUARD’S OPA DETERMINATIONS ENTITLED TO DEFERENCE
BUFFALO MARINE SERVICES INC., ET AL. V. UNITED STATES OF AMERICA

Circuit Court Opinion

This appeal arose out of an oil spill involving a barge and a tug owned by Buffalo Marine Services, Inc. and a large tanker ship. The Buffalo Marine vessels attempted to dock alongside the tanker ship, in order to deliver fuel that had been ordered. The fuel delivery never took place. Buffalo Marine’s barge collided with the tanker, rupturing the vessel’s skin and adjacent fuel-oil tank. As a result of the rupture, approximately 27,000 gallons of heavy fuel oil spilled into the Neches River. Buffalo Marine, the Torm, and their insurers coordinated the clean-up effort, assessed at a cost of $10.1 million. the owners and insurers of the three vessels involved in the spill jointly submitted a request for reimbursement of their cleanup expenses to the Coast Guard’s National Pollution Funds Center (“NPFC”), which is the agency charged with administering the Oil Spill Liability Trust Fund. The request sought to declare Buffalo Marine the sole “third-party” cause of the spill, exonerate the Torm, substitute Buffalo as the formal “responsible party” for cleanup costs, and limit Buffalo Marine’s liability to $2 million – the approximate value of the barge – pursuant to the OPA. The NPFC denied the claim, concluding that the claimants had not established by a preponderance of evidence that Buffalo Marine’s acts were not in connection with any contractual relationship with the responsible party. Buffalo Marine and its insurers then sought review of the NPFC’s decision in the district court. After the parties filed cross-motions for summary judgment, the district court granted the government’s motion for summary judgment. On further appeal, the Fifth Circuit ruled that the Coast Guard’s determinations under the OPA are entitled to deference. The court ruled that the Coast Guard determination was not arbitrary or capricious. (5th Cir., November 22, 2011)

COURT SAYS MARITIME OPERATIONS SHOULD BE SUSPENDED IN CHOPPY SEAS
NAYLOR V. ATLANTIC SOUNDING CO., INC., ET AL.

Antonio Naylor, a seaman employed by Atlantic Sounding Co., Inc., allegedly injured his back while working as a deckhand aboard a dredge owned and operated by Weeks Marine, Inc. The operation required a floating discharge line, referred to as the “pontoon line,” to carry the dredged material from the vessel to the banks. The pontoon line consisted of a pipeline that floated on top of evenly spaced pontoon tanks that were approximately ten feet long, four feet wide, and three feet high above the water line. The pontoon line had to be disconnected periodically to allow ship traffic to pass, and then reconnected to continue the dredging. Naylor was allegedly injured when an outside tug, operated by Caillou Island Towing Company, Inc. Rammed the pontoon line, causing Naylor to fall and injure himself. Naylor filed against Atlantic Sounding, Weeks, and Caillou Island, alleging claims under the Jones Act, unseaworthiness, general maritime tort law, and maintenance and cure. Defendants settled with Naylor and a bench trial was held solely on the issue of the apportionment of fault between Atlantic Sounding and Caillou Island. At trial Naylor testified that it was a clear, windy night and the seas were choppy, which caused the pontoon tank to rock with the waves. He had been involved in the reconnection process on several occasions before the accident and testified that he did not think it was unsafe to do the reconnection due to the weather. Naylor further testified that he had “stop work” authority if he thought that the activity was too dangerous. Naylor testified that his accident occurred when the tug rammed the discharge line and then rammed in between the discharge line and the pontoon tank while it was trying to maneuver to the other side of the pontoon tank to get downwind to make the reconnection. The captain of the offending tug described the seas being rough with two-and-a-half to three foot ground swell and admitted that the tug rammed the pontoon line because a swell came up under the vessel. Notwithstanding Naylor’s testimony that he did not believe the reconnection process itself was unsafe, the court found that Atlantic Sounding failed to use ordinary prudence under the circumstances when it attempted the reconnection process in adverse weather conditions, noting that all of the witnesses to the accident described the seas as choppy and the reconnection process had taken longer than usual. The court also found that Caillou Island owed Naylor a duty to navigate its tug safely when performing the reconnection. Unsafe navigation of the vessel foreseeably could cause an injury to the deckhand on the pontoon tank. The court found that Caillou Island breached that duty by ramming into the pontoon line twice, which caused Naylor’s injury. The court held that Caillou Island was 60% at fault in causing Naylor’s injuries, and Atlantic Sounding was 40% at fault in causing Naylor’s injuries. (USDC EDLA, November 4, 2011) 2011 U.S. Dist. LEXIS 128130

FALLON ALLOWS COOK TO GO DOCTOR SHOPPING (CONT.)
ALARIO V. OFFSHORE SERVICE VESSELS, LLC, ET AL.

Michelle Alario was hired by Offshore Service Vessels, LLC as a vessel cook. Alario alleged that as she woke up one morning, on the vessel to which she was assigned, the rocking of the vessel caused her to lose her balance, stumble across the room, and strike her right shoulder and arm on the opposite wall. Alario complained of right arm, neck, and shoulder pain resulting from this incident. Alario eventually underwent a right transverse carpel ligament release and a right lateral epicondyle release. Offshore paid maintenance and cure as well as advance wages during Alario’s treatment. Nevertheless, Alario filed a Jones Act and general maritime suit, alleging that her injuries were proximately caused by the negligence of Offshore and the unseaworthiness of the vessel. Offshore moved for summary judgment on both liability and maintenance and cure. In an earlier decision, the court dismissed Alario’s Jones Act and unseaworthiness claims, but permitting Alario to pursue her maintenance and cure claims [see February 2011 Longshore Update]. The court concluded that Alario had demonstrated, based upon the tests conducted after she was determined to be at maximum medical cure, the possibility, perhaps remote, that she has not reached maximum medical improvement. Offshore filed the present Motion for Summary Judgment, seeking dismissal of Alario’s remaining maintenance and cure claims on the basis that she had reached MMI, relieving Offshore of any further obligations. To support its argument, Offshore argued that at least two physicians had concluded Alario had reached MMI and no other physician disagrees. Offshore further maintained that it had fully funded the extensive medical treatment received by Alario and provided all maintenance benefits to which she is due. Alario filed a Response in opposition to Offshore's Motion, arguing the testimony of her treating neurologist demonstrated she had not yet reached MMI. Offshore responded that any additional treatment would only be palliative in nature. After reviewing the testimony of Alario’s treating neurologist, and construing any ambiguity in favor of Alario, the court found that the Alario had reached MMI and any further treatment would be merely palliative in nature. The court agreed with Offshore’s argument that a recommendation for relief or management of pain alone does not prevent a finding of MMI. Offshore’s Motion for Summary Judgment was granted. (USDC EDLA, November 8, 2011) 2011 U.S. Dist. LEXIS 129179
Updater Note: All I will say about this case is that Judge Fallon should have shut this over treatment down the first time he had the opportunity, rather than making the employer pay another nine months of unnecessary medical bills.

I DENIED SUMMARY JUDGMENT ON ONE THEORY, WHY BOTHER WITH THE OTHER
THAGGARD V. NOBLE DRILLING (U.S.), LLC

Andrew Thaggard was allegedly injured while working as a roustabout for Noble Drilling (U.S.), LLC aboard a semi-submersible drilling rig. The incident occurred when Thaggard was attaching a MUX cable to the riser to provide fiber optic communications between the drilling rig and the blowout preventer. During the course of the job, Thaggard’s hand was caught in the "pinch point" between the MUX cable and the riser. According to Thaggard, the bracket attached to the riser twisted out of position, pinning his fingers between the cable and the riser and causing his injury. Thaggard filed suit alleging negligence under the Jones Act and unseaworthiness under the general maritime law and seeking damages as well as maintenance and cure. Noble moved for partial summary judgment on the issues of negligence and unseaworthiness, contending Thaggard had been specifically trained to do the job and to safely palm the MUX cable, arguing that Thaggard’s own negligence was the sole cause of the incident. Thaggard opposed Noble’s motion, arguing that the MUX cable could have been repositioned to obviate the need to put his hand near any pinch points, and also that the riser brackets had a history of rotating unexpectedly and this posed an unreasonable risk of injury. Despite Thaggard’s sworn deposition testimony that no one on the rig was at fault for his injury, the court still found that the cause of and responsibility for the bracket twist were pregnant with factual issues that could not be resolved on summary judgment. Notwithstanding the fact that the court specifically found that Thaggard had not articulated a viable theory of unseaworthiness, because partial summary judgment was denied as to Jones Act negligence based on factual disputes regarding the condition of the riser bracket, the court determined that it was not appropriate to grant summary judgment on the issue of seaworthiness. (USDC EDLA, November 15, 2011) 2011 U.S. Dist. LEXIS 131682

YOU CALL THAT A CHANDRIS ANALYSIS JUDGE?
SMITH V. KANAWHA RIVER TERMINALS LLC, ET AL.

Shawn Smith worked on and off in various positions for Kanawha River Terminals (KRT) beginning in July 2004. KRT is in the business of transloading coal at four different facilities. On December 1, 2007, Smith allegedly fell from a platform, landed on the deck of a transloader barge, and rolled into the river. About three weeks prior to his alleged accident, Smith was reassigned to transloading at KRT's Ceredo facility. None of the positions held by Smith prior to this reassignment required him to work on a barge, boat, or other floating equipment. Smith later filed suit against KRT under the Jones Act and general maritime law for damages arising from his injuries. KRT moved for summary judgment, asking the court to decide whether, as a matter of law, Smith was a "seaman" for purposes of the Jones Act and general maritime law. Smith opposed the motion, contending he could potentially qualify as a seaman under the Jones Act with regard to either the customer barges that KRT services or the transloader barge on which he worked. The court found that the coal barges, owned by KRT's customers and under KRT's limited control for purposes of loading and unloading, did not constitute an identifiable fleet, nor does the relevant case law support a finding that his connection with the customer barges is sufficient to qualify Smith as a seaman. However, the court found that the transloader barge, is a vessel within the meaning of the Jones Act and general maritime law. The transloader barge had no living quarters, no means of self propulsion, and was accessed by a steel framed walkway. Its operations were powered by electricity supplied via an onshore power cable, and it had been moored for eleven months at the time of the incident. However, the court noted that eleven months is a relatively brief period, and the barge could be removed without great difficulty were it necessary for maintenance of the watercraft, the hopper, the excavator, or for some other business purpose. Focusing its inquiry on the capability of the transloader for transportation, the court concluded that, at the time of the accident, future use of the transloader barge in transportation was a practical, and not merely theoretical, possibility. The court also found that when Smith was assigned to transloading, his reassignment was permanent. His primary responsibility was the unloading of coal barges, either as dockhand or excavator operator. Additionally, by being exposed to the elements, adjusting the lines on customer barges, operating a Bobcat on customer barges, and generally tending to the operations of the transloader barge, he was regularly exposed to the perils of the sea. Therefore, the court also concluded that Smith’s relationship to the transloader was sufficient to state a claim under the Jones Act. KRT’s motion for summary judgment was denied. (USDC SDWV, November 4, 2011) 2011 U.S. Dist. LEXIS 127881

LET’S DO A LITTLE DISCOVERY BEFORE FILING SUMMARY JUDGMENT MOTIONS
BRILEY V. U.S. UNITED BARGE LINE, LLC, ET AL.

Michael Briley worked as a member of the crew aboard a tugboat owned and operated by U.S. United Barge Line, LLC (UBL). Part of Briley's day-to-day duties as the first mate included inspecting the rigging for defects and seeing to its replacement if necessary. Briley and another crew member were depositing three barges ay a fleeting facility and were removing the rigging between the three barges in preparation for their arrival. One particular wire was too tight to detach it from the ratchet's pelican hook. As Briley and the other crew member attempted to slacken the wire with a cheater pipe, the wire made a loud "pop," which caused both men to retreat from the area out of fear the wire would break. They returned to the wire after a few moments and began working on it anew. Moments later, the ratchet on the barge broke and either it, or the wire recoiling from the release of tension, struck Briley in his leg and fractured it. Briley filed suit against UBL, alleging negligence under the Jones Act and claims of unseaworthiness, maintenance, cure, and wages under general maritime law. UBL filed a third-party complaint against the manufacturer of the pelican hook, Dixie Industries, requesting indemnity and contribution. Briley moved for partial summary judgment on his claim of unseaworthiness, alleging there are no material facts surrounding the fact that the ratchet and pelican hook were being used for their ordinary and approved purposes, the pelican hook and proximately caused his injury. The question before the court was whether the vessel, by virtue of the broken ratchet, was unseaworthy as a matter of law. The parties did not dispute the pelican hook broke under the strain of the barge or that Briley was using the ratchet, along with the hook, for its ordinary purpose. Nor did they contest that the hook's snapping was a direct cause of Briley's injuries. What was uncertain was why the pelican hook gave way that night, and this question drove UBL's and Dixie's opposition to Briley’s motion, arguing that summary judgment was improper at this time. UBL and Dixie argued that Briley may have proximately caused his injury by returning to the ratchet after the first popping noise; it was unclear whether the pelican hook was defectively manufactured or designed, which could be the ultimate cause of the accident; and by ordering the realignment, Briley may have inadvertently and negligently overloaded the pelican hook. The court found that, while neither UBL nor Dixie had come forward with sufficient facts to rebut Briley's claim, this was excusable since discovery was only in its infancy. To grant Briley's motion at this juncture would be to ignore the general rule that summary judgment is improper if the non-movant is not afforded a sufficient opportunity for discovery. The court denied Briley's motion for summary judgment, but granted him leave to refile his motion at a later date once the parties had an adequate opportunity to conduct discovery. (USDC WDKY, November 10, 2011) 2011 U.S. Dist. LEXIS 130753

LIMITATION OF LIABILITY FAILS DUE TO SHOWING OF PRIVITY AND KNOWLEDGE
IN RE: LEO, LLC

Matthew Flora worked for Leo, LLC as a seaman on one of its fish tender vessels. Flora was working on the deck of the vessel, when he was hit in the head by a scale, allegedly knocking him unconscious. Flora claims to have suffered a permanent brain injury as a result of being struck on the head with the fish scale. After Flora filed his seaman’s suit, Leo filed a petition for limitation of liability, admitting that the privity or knowledge of Coastal Seafoods shall be imputed to all other petitioners. Flora was able to prove that the crane hooks on the vessel’s cranes were originally designed to have safety latches, that a safety latch would have kept the scale in the vessel’s port side crane hook, and that he would not have been injured if the crane hook had a safety latch. Testimony was clear that Coastal’s personnel did not follow up, after they realized that the hook was defective, to make sure that the crane hook was repaired, and these employees were sufficiently senior in the Coastal Seafoods hierarchy to make actual knowledge of the unseaworthy condition and the negligent failure to remedy the situation that of Coastal Seafoods. The court concluded the vessel’s crane hook was not reasonably fit for its intended purposes. The court found that Flora had sustained his burden of proving negligence of Coastal Seafood and Leo, and the unseaworthiness of the vessel and that petitioners' negligence was a cause of his injuries and that the unseaworthiness was a substantial cause of his injuries. Accordingly, the court held that petitioners were not exonerated from liability. With regards to the next step, whether petitioners could limit their liability, the court held that petitioners failed to meet their burden of proof to show lack of privity or knowledge of the several independent causes of Flora’s injury. It was undisputed that senior Coastal personnel had actual knowledge of the unseaworthy condition. The failure to "red tag" or prohibit use of the crane until it was repaired constituted negligence within the privity or knowledge of petitioners. The court concluded that Flora had established, by a preponderance of evidence, that petitioners were negligent and the vessel was unseaworthy, and held that petitioners could not limit their liability, as they failed to sustain their burden to prove that they had no privity or knowledge of the causes of Flora’s injury. The Petition For Limitation of Liability was dismissed with prejudice. (USDC WDWA, November 7, 2011) 2011 U.S. Dist. LEXIS 128726

BARBIER GIVES THE ADMIRALTY WORLD HIS SPIN ON THE FLOTILLA DOCTRINE
IN RE: WAR ADMIRAL, L.L.C., ET AL.

This lawsuit arose from a collision between two vessels and their respective tows. Troy Hamrick, a deckhand aboard one of the involved barges, allegedly suffered injuries as a result of the collision. The owner and operator of the M/V WAR ADMIRAL, one of the vessels involved in the collision, filed a petition seeking to eliminate or limit its liability. The WAR ADMIRAL is owned by War Admiral, L.L.C. and was operated by Turn Services, L.L.C. Hamrick filed a claim in the limitation case and then moved to increase the security of the limitation fund or, in the alternative dismiss the limitation action. The collision occurred at a fleeting facility-a staging area where barges are stored or secured. At the time of the collision, the WAR ADMIRAL was in the fleeting area building a 17-barge tow for a customer vessel. A towboat, owned and operated by Accumarine Transportation LP, was traveling upriver pushing two barges with sweet crude oil. The WAR ADMIRAL's captain spotted the Accumarine tug and tow approaching and radioed her, but got no response. The two tugboats collided, leaving a large gash in the WAR ADMIRAL's stern, and allegedly causing Hamrick to fall from his position at the head of an adjacent barge a distance of 14 feet into an empty hopper barge below. After filing its limitation action, Turn Services posted a letter of undertaking as security in the amount of $750,000, the value of the WAR ADMIRAL. Hamrick alleges that his damages total more than $4 million, and argued that the posted security was woefully insufficient because it is only based upon a valuation of the WAR ADMIRAL. Hamrick asserted that at the time of the collision, the WAR ADMIRAL, the M/V BLACKBEARD, the M/V OMAHA, and the M/V SECRETARIAT were all Turn Services vessels working together to build a tow for a customer and that all of these vessels were part of a common fleeting enterprise and, therefore, that the value of other vessels should be included in the limitation fund. Hamrick also argued that, under the “flotilla doctrine” the value of the fund must be increased by the pending freight, which is the value of any contract under which the flotilla was working at the time of the collision. Turn Services opposed Hamrick's motion on substantive and procedural grounds, arguing the motion to increase security was untimely, as it was filed over two-and-a-half years after the limitation action was filed and the security was posted. Turn Services also argued that the motion should be denied because two of the three elements of the flotilla doctrine are absent. First, there was no common venture or enterprise. Two of the vessels were merely available to help build the tow; they were not necessary to performance of the contract. The deposition testimony clearly showed that only the WAR ADMIRAL was actually involved in building the tow. Second, the vessels were not under a single command. The mere fact that vessels owned by one entity operate in the same area does not mean that they operate under a single command. Lastly, Petitioners argued that pending freight cannot be computed, because there was no evidence in the record by which computation could be made. The court dismissed Turn Services’ “availability” argument, noting that the mere fact that vessels do not actively perform work on a contract does not necessarily mean that they are not contractually engaged in a common enterprise. The court found that there was sufficient evidence that the WAR ADMIRAL, the BLACKBEARD, and the OMAHA-but not the SECRETARIAT-were engaged in a common enterprise. The court also bought into Hamrick's argument that, where Turn Services was using three or four of its vessels on the date of the accident in question to build a tow for a customer vessel, there necessarily must have been common control, or command, over the vessels working jointly to carry out this task. The court held there was sufficient evidence that the vessels constituted a flotilla, and ordered security increased to include the value of all three vessels. The court rejects the procedural argument that the motion was untimely, finding it was Turn Services’ failure to respond to discovery until the Magistrate ordered a response that was to blame for the initial lack of proof of a flotilla. Finally, the court found that the value of the contract, under which the flotilla was working at the time of the collision, should be included in the limitation fund as pending freight. Hamrick's motion was granted. (USDC EDLA, November 18, 2011) 2011 U.S. Dist. LEXIS 133654
Updater Note: The dispatcher did it? This is a ridiculous interpretation of the “flotilla doctrine,” in my humble opinion. If we buy into Barbier’s interpretation of this doctrine, every vessel in a shipowners fleet should be included in every limitation action.

COURT CONCLUDES DEFENDANT’S REMOVAL BURDEN WAS NOT MET
CREPS V. TRUCO MARINE, LLC

Ethan Creps, a seaman, alleged that he sustained injuries during the course of his employment on a Truco Marine, LLC vessel, when a cable on the ship's crane snapped, causing a 300 pound crane block to fall approximately 60 feet and strike him in the back. Creps filed this action against Truco, whom he believed to be his employer at the time of the accident, and other unnamed defendants in state court based on negligence, unseaworthiness, and maintenance and cure. Truco removed the case to federal court, arguing that Patriot Contract Services LLC (PCS) - and not Truco - was Creps's employer and (2) that pursuant to the "Exclusive Remedy Provision," of the Suits in Admiralty Act (SIAA), the United States, as PCS's principal, is the only proper defendant as the owner of and controlling authority on the vessel at the time of the accident. Creps moved to remand the case to state court. Truco opposed Creps's motion and moved the court to dismiss the case for lack of subject matter jurisdiction and for failing to state a claim upon which relief can be granted. In the alternative, Truco asked the court to grant it summary judgment on the basis that it was the wrong defendant. The court began its analysis by observing that it must remand a case to state court if there is any doubt about the propriety of removal. The court then found that Truco had failed to meet its burden in this regard and it remained possible that Truco may be liable to Creps under the Jones Act. Although Truco presented ample evidence showing that an agency relationship likely existed between PCS and the United States, they provided nothing showing that Truco had a similar relationship with the United States. The court therefore declined to conclude that Truco receives immunity as an agent of the United States under the SIAA and PVA. Similarly, although Truco had proffered materials that highly suggest that it was not Crep’s employer, they failed to eliminate all possibility of an employment relationship between them. Facts and ambiguities raised in the evidence submitted by both parties created enough doubt that the court could not definitively hold that there is no possibility that Truco employed Creps. Because Truco had not satisfied its burden to sustain removal jurisdiction, the court granted Creps Motion to Remand and denied Truco’s Motion to Dismiss as moot. (USDC NDCA, November 8, 2011) 2011 U.S. Dist. LEXIS 129293

EMPLOYER ENTITLED TO IME INDEPENDENT OF ITS OBLIGATION TO PROVIDE CURE
Y & S MARINE, INC. V. MAZA

Travis Maza was employed by Y & S Marine as a deckhand when he was allegedly injured while lifting either a trash can lid or a garbage bag. Maza claimed he felt a twist and heard a pop, ultimately experiencing low back pain. As part of its duty to provide maintenance and cure, Y&S immediately began paying for and arranging treatment for Maza's alleged injuries. When Y&S attempted to arrange for an independent medical examination (IME), Maza objected contending that the examination reports provided by his treating physician qualified as Y&S’s one and only Rule 35(a) IME. Y&S moved to compel the examination and the magistrate found that Maza's physical state was in controversy, and further agreed that Y&S had shown good cause why Maza should be compelled to undergo an IME. Maza filed an Objection to Magistrate's Ruling to Compel a Second Medical Examination and Y&S responded urging the court to affirm. The court affirmed the magistrate’s decision that Y&S, as a Jones Act employer, is entitled to an IME that is separate from its obligation to provide a treating physician for the seaman's cure. Maza’s motion was denied. (USDC EDLA, November 17, 2011) 2011 U.S. Dist. LEXIS 132807D

Quotes of the Month . . . “Some men have thousands of reasons why they cannot do what they want to, when all they need is one reason why they can.”--Willis R. Whitney

“Procrastination is opportunity's assassin.”--Victor Kiam

“The man who never alters his opinion is like standing water, and breeds reptiles of the mind.”--William Blake

Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

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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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Redistribution permitted with attribution.

November 2011 Longshore Update

2011-10-31T13:28:00.000-07:00

November 2011

Notes From Your Updater - On October 1, 2011, the U.S. Supreme Court heard oral argument in the case of Pacific Operators Offshore, LLP v. Valladolid, Docket No. 10-507. A transcript of the argument can be found here. You can also listen to an audio version of the argument, courtesy of the Oyez Project at Chicago-Kent, available here (it’s much more interesting then reading a boring transcript, I might add). The question presented to the Court in this case is, “When the Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356, provides that workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf," under what circumstances is an outer continental shelf worker (or his heir) who is injured on land eligible for compensation?” I believe Mr. Clement won the oral argument in the case; at least I hope he did .

The Supreme Court of Louisiana denied a rehearing in the case of Fulmer v. Dept. of Wildlife & Fisheries, 2011 La. LEXIS 1896 [see August 2011 Longshore Update], on September 2, 2011. This was a case in which the court determined that the state employee’s Jones Act claim was not barred by the Louisiana Workers' Compensation Act.

On October 11, 2011, the OWCP issued Longshore Notice No. 136, dealing with Newly Revised Longshore forms. Mandatory Longshore Form LS-206, Payment of Compensation Without Award, has been revised August. 2011. Effective November 01, 2011, the revised version of the form should be used. All prior versions of the form are obsolete. The LS-202 also has some minor revisions to it. The revised forms are now available for download and printing from the DLHWC website. http://www.dol.gov/owcp/dlhwc/lsforms.htm

11TH CIRCUIT - WHO NEEDS THE SUPREME COURT? WE’LL DECIDE THE ISSUE.
BOROSKI, ET AL V. DYNCORP INTERNATIONAL, ET AL.

Circuit Court Opinion
BRB Decision
ALJ Decision

Bernard Boroski worked for DynCorp International, in Tusla, Bosnia, as a sheet metal mechanic from and was allegedly was exposed to various chemicals which supposedly caused Boroski to become legally blind in both eyes. Boroski was found to be permanently and totally disabled since April 20, 2002. DynCorp contested that it was the cause of Boroski's blindness and submitted an application for §8(f) relief. Boroski’s wages at the time of the injury were high enough to entitle him to the applicable statutory maximum level of compensation. Boroski timely applied for workers compensation benefits under the LHWCA, which applied to him by operation of the Defense Base Act. Because DynCorp contested liability, Boroski's claim was adjudicated before an ALJ, who on February 15, 2008, held that Boroski was entitled to compensation for permanent and total disability beginning April 20, 2002. The ALJ did not specify the maximum compensation rate that was applicable or calculate the amount owed to Boroski. The ALJ also awarded Boroski interest on all accrued compensation and penalties, computed from the date each payment was originally due. After the compensation order was filed, and relying on §906, DynCorp based its payment of disability benefits for April 20, 2002, through September 30, 2002, on the maximum compensation rate that was in effect for that period, $966.08 per week and, pursuant to §910(f), increased the benefits it paid to Boroski annually beginning October 1, 2002. Boroski applied to the district director for a supplemental order declaring DynCorp in default. Boroski alleged that DynCorp used an inappropriate maximum compensation rate. The district director agreed with the maximum compensation rate DynCorp had paid, determined by reference to the date when benefits became payable (April 20, 2002), and not by reference to the date on which benefits were awarded to him (February 15, 2008). Boroski appealed the decision of the district director to the BRB and DynCorp cross-appealed the order of the ALJ that found that Boroski was entitled to benefits. The BRB affirmed the decision of the district director, rejecting Boroski's argument that he was entitled to compensation for the years 2002-2008 at the 2008 maximum compensation rate. Boroski appealed to the United States District Court for the Middle District of Florida. Applying principles of statutory construction, the district court affirmed the decision of the Benefits Review Board. The district court was persuaded by the 9th Circuit’s in Roberts [see December 2010 Longshore Update]. Boroski timely filed a notice of appeal, arguing, as he did before the district court and the BRB, that the plain language of §906(c) unambiguously provides that the applicable maximum compensation for him is 200 percent of the national average weekly wage in effect at the time of the award. The 11th Circuit Court of Appeals agreed with Boroski’s argument that the plain language of the statute established that Boroski is entitled to compensation at the maximum rate in effect at the time of the administrative award. After a lengthy historical analysis of the LHWCA, the appellate court concluded that Boroski was "newly awarded compensation" at the time of the ALJ's award and was not receiving voluntary compensation. Thus, under a plain reading of the statute, the court agreed that the maximum compensation rate applicable to Boroski must be determined by reference to the national average weekly rate applicable to "such period" on which he received his award, that is, February 15, 2008. The panel was critical of the 9th Circuit’s Roberts opinion, suggesting it had simply applied Chevron deference to the Director's litigating positions and in attempting to avoid potential inequitable results, substituting what it thought Congress should have said for the plain language that Congress used. The court also criticized Roberts for construing the term "award" to mean "entitled to compensation," which the 9th Circuit panel admitted was not the ordinary and common meaning ascribed to that term, yet allowed the same term to have its ordinary and common meaning in other sections of the LHWCA. Applying long-standing principles of statutory construction, the appellate court found that the maximum weekly rate of compensation is governed by the rate in effect at the time of the award. The court further pointed out that following the statute as written would provide a claimant with a higher benefit, at a concomitant cost to the employer, if entry of an award is substantially delayed. Adopting the Roberts construction would result in a lower benefit, at a concomitant gain to the employer, if entry of an award is substantially delayed. The fact that Congress had chosen to encourage employers to pay promptly by imposing penalties for non-payment of claims that result in awards unless a claim is timely controverted does not make the disabled employee whole, since controversion is totally within the control and discretion of the employer. Therefore, the court reversed the decision of the district court and remanded for calculation of the sum to be paid. (11th Cir, October 27, 2011) 2011 U.S. App. LEXIS 21776
Updater Note: What surprised me most about this opinion was not the outcome but, rather, that the Circuit Court acknowledged that the U.S. Supreme Court had granted certiorari on this very issue, yet went ahead and issued a panel opinion anyway, rather than deferring and extending deference to the Supreme Court. Others have speculated that the Eleventh Circuit intentionally wrote this opinion now to try and persuade the Supreme Court to reverse Roberts. There are obviously compelling arguments on both sides of this issue. Hopefully, when the Supreme Court issues its opinion in Roberts, we will all know which arguments are most compelling.

CAUSATION REQUIREMENT SATISFIED UNDER THE AGGRAVATION RULE
P&O PORTS TEXAS, INC. V. DIRECTOR, OWCP, ET AL. [SALAZAR]

Circuit Court Opinion
BRB Decision
ALJ Decision

Hipolito Salazar is a mechanic, formerly employed by P&O Ports Texas, Inc., who was working under a forklift when a wrench came loose and allegedly struck him on his right leg between his thigh and knee. Salazar failed to report the injury to his employer on Friday, when it allegedly happened and, instead, waited until the following Monday to report it. At that time, Salazar's knee was bruised and swollen. Salazar was diagnosed with internal derangement of his right knee, and eventually underwent surgery to repair a right medial meniscal tear. Salazar made a claim for benefits against P&O under the LHWCA. The dispute was submitted to an ALJ, who rendered a decision and order in favor of Salazar, requiring P&O to pay Salazar compensation benefits and medical expenses. P&O appealed the decision to the BRB, which upheld the ALJ's ruling. P&O appealed the BRB’s affirmation, asserting that, because the record evidence was inconclusive with respect to whether the alleged injury, in fact, caused Salazar's meniscal tear, Salazar was not entitled to benefits under the LHWCA. The appellate court began its analysis by noting that the ALJ determined that, although P&O presented sufficient evidence to overcome Salazar's presumption of an entitlement to benefits, upon review of the entire record, the alleged injury contributed to or aggravated Salazar's right meniscal problem. For purposes of its limited appellate review, the court found the causation requirement satisfied under the aggravation rule as long as there is substantial evidence that Salazar's injury worsened his condition, even if he cannot conclusively demonstrate that the injury was the direct or sole cause of his meniscus tear. The court held that there was clearly substantial evidence in the record to support the ALJ’s conclusion. The ALJ emphasized that the absence of symptoms prior to the injury indicated that the injury worsened an existing knee problem. Considered together, a reasonable mind might accept this evidence as adequate to support the conclusion that Salazar's employment injury worsened a preexisting impairment. The court denied P&O’s petition for review. (5th Cir, October 25, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21712

WHAT WE HAVE HERE IS A COMPLETE LACK OF CREDIBILITY
GOLD V. DIRECTOR, OWCP [DOLPHIN SERVICES, L.L.C.]

Circuit Court Opinion
BRB Decision
ALJ Decision

Michael Gold worked for Dolphin Services, L.L.C. as an offshore rigger. He alleged sustaining a back injury while performing his duties, after awakening with back pain one morning After filling out an accident report, Gold declined medical attention and returned to his regular duties, which required repetitive bending, stooping, and lifting. Gold’s employment was terminated several months later, because he reported to work with alcohol in his system. Gold eventually filed a formal claim for compensation for his alleged back injury, which Dolphin controverted. The ALJ who heard the case found that Gold’s credibility was suspect and was not therefore sufficient to establish that an injury occurred. The ALJ also found that no medical evidence supported a finding that Gold suffered an injury under the LHWCA. In the alternative, the ALJ found that even if the employee could show he sustained an injury, there was insufficient evidence to establish that any work-related accident, exposure, event, or episode occurred that could have caused the injury. The ALJ based this finding on the many internal inconsistencies in Gold’s statements, as well as the testimony from others that contradicted Gold’s testimony. The BRB affirmed the ALJ’s denial of compensation benefits. Gold sought further appellate review of the BRB decision affirming the ALJ’s denial. On appeal, the court ruled that the ALJ's determination that Gold’s testimony on both prongs of the prima facie case was not credible, and that the credible evidence did not support his allegations, was supported by the evidence in the record. Gold’s contention that the ALJ made incorrect credibility determinations was found to be unavailing. The appellate court held that the ALJ, as the sole fact finder, was entitled to consider all credibility inferences and his selection among inferences was conclusive. The court affirmed the decision. (5th Cir, April 29, 2011, UNPUBLISHED) 424 Fed. Appx. 274; 2011 U.S. App. LEXIS 9018

REVERSAL OF §8(F) GRANT AFFIRMED DUE TO LACK OF MANIFESTATION
POMTOC, ET AL. V. DIRECTOR, OWCP, ET AL. [TAPANES]

Circuit Court Opinion
BRB Decision
ALJ Decision

POMTOC's employee, Reyland Tapanes, alleged that as a result of tripping and striking his right elbow against a barricade while inspecting a chassis, he injured his right rotator cuff while at work. A hearing was held before an ALJ, who found that Tapanes had sustained a permanent partial disability and awarded Tapanes compensation for that disability. The ALJ also entertained POMTOC's petition for relief under Section 8(f) of the Act, on the ground that Tapanes had sustained a heart attack six months earlier, and that his compensable rotator cuff disability was greater due to his disabling heart attack. Acting on a stipulated record, the ALJ granted POMTOC Section 8(f) relief. The Director appealed the ALJ's Section 8(f) decision to the Benefits Review Board, and the Board, addressing only the manifestation element, reversed. The Board concluded that because the only evidence before the ALJ of Tapanes's April 2005 heart attack was contained in medical records generated after the October 31, 2005 rotator cuff incident, there was no evidence in the record from which the ALJ could have ascertained that POMTOC had actual knowledge of Tapanes's heart attack prior to the work accident. The Board denied POMTOC's motion to reconsider and POMTOC appealed, arguing that the Board overlooked the ALJ's reliance on Tapanes's deposition testimony, which established that Tapanes was absent from work for a month following his heart attack and that his cardiac disability was manifest to POMTOC. The appellate court initially observed that Tapanes's deposition was not part of the record. Acknowledging this fact, POMTOC argued alternatively that the case should be remanded to the ALJ for reopening of the evidence; or for modification under Section 22 of the Act. The appellate court rejected this invitation and agreed with the Director that POMTOC submitted no proof that it had knowledge, actual or constructive, of Tapanes's cardiac condition before Tapanes sustained his rotator cuff injury. The Board's decision and its order denying POMTOC's motion for reconsideration were affirmed. (11th Cir, October 11, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 20712

CIRCUMSTANTIAL AND NEGATIVE EVIDENCE FAILS TO REBUT PRESUMPTION
JONES STEVEDORING COMPANY V. PAGLIA

Circuit Court Opinion
BRB Decision 1; BRB Decision 2
ALJ Decision 1; ALJ Decision 2

August Paglia filed a claim under the LHWCA for occupational hearing loss related to his employment as a stevedore at Jones Stevedoring Company. The ALJ ruled that Paglia established a prima facie claim for occupational hearing loss and was thus entitled to a presumption in favor of compensability pursuant to §920(a). The ALJ further concluded that Jones produced sufficient evidence to overcome the presumption. The BRB, however, reversed on that point, holding that Jones did not rebut the §20(a) presumption, and remanded for resolution of remaining issues. Jones appealed the BRB’s reversal, contending that the Board exceeded its authority by reviewing the evidence de novo. Jones alternatively contended that the Board erred in holding that Jones did not produce substantial evidence to rebut the §20(a) presumption. The appellate court found that Jones had failed to produce substantial evidence that was specific and comprehensive enough to sever the connection between Paglia’s hearing loss and the conditions of his employment. The court concluded that the BRB correctly determined that the circumstantial and negative evidence produced by Jones, and relied upon by the ALJ, did not satisfy the rebuttal standard. Because Jones failed to produce specific and comprehensive evidence severing the connection between Paglia's covered employment and his hearing loss, the Board properly held that Jones did not rebut the §20(a) presumption. (9th Cir, October 20, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21483

HE DID NOT KNOW ENOUGH TO LOOK WHERE HE WAS GOING (CONT.)
BAHAM V. NABORS OFFSHORE CORPORATION

Circuit Court Opinion

Lejo Baham was employed by Seatrax Services, Inc. as a crane mechanic. Baham was sent to a jackup drilling rig owned by Nabors Offshore Corporation and located on the Outer Continental Shelf, to inspect and possibly repair the port-side crane on the rig. Baham was injured when he fell through an opening in a walkway that had not been secured by a Nabors’ employee. Baham sued Nabors under §905(b) of the LHWCA, contending that Nabors violated the second Scindia duty. The court initially found that Baham had authority to ascend the ladder to the crane and to begin his inspection and no JSA was performed as was Nabors’ policy. Because Nabors retained operational control over the ladder and walkway in question, the court held that Nabors was liable to Baham for the hazardous condition. The court also found that the evidence demonstrated that, at the time of Baham's accident, the configuration of the ladder and walkway through which Baham fell constituted an unreasonable risk of harm to Baham. The court awarded Baham damages in the amount of $949,993.39 along with pre and post-judgment interest. The court also ordered that Seatrax’s workers’ compensation carrier was is entitled to recover its LHWCA lien of out of this amount. Because the court found Baham 50% contributorily negligent or at fault, Nabors was ordered to bear 50% of the entire cost of the judgment [see August 2010 Longshore Update]. The parties appealed and cross-appeal the district court’s judgment. On appeal, Baham asserted that his comparative fault should not have been considered in an LHWCA case, and that the district court erred in the allocation of fault between Baham and Nabors. Baham also challenged the district court’s finding that Seatrax’s wage payments were advance payments of compensation benefits under the LHWCA, and he argued that the workers’ compensation insurer’s compensation lien against Baham’s recovery should be reduced by the fraction of comparative fault attributed to Baham. Nabors cross-appealed, challenging the district court’s findings that Nabors was negligent under §905(b), that Nabors violated 33 C.F.R. § 142.87, and that the violation constituted negligence per se. Nabors joined Baham’s challenge to the district court’s finding that Baham’s post-accident wages were advance payments of workers’ compensation benefits. The appellate court rejected Baham’s challenge to the assignment of comparative negligence as foreclosed by Neal v. Saga Shipping Co., which held that plaintiffs who are not Jones Act seamen do not enjoy the benefit of the rule barring application of contributory negligence. Baham’s argument regarding the effect of comparative negligence on an employer’s entitlement to recoup advance workers’ compensation payments was also foreclosed by binding precedent. The district court’s negligence findings and its allocation of fault between Baham and Nabors are factual determinations, which the appellate court concluded it may not set aside absent clear error. Neither Baham nor Nabors pointed to any problem with the district court’s fact finding that would merit reversal under that standard.. The appellate court rejected Nabors argument that 33 C.F.R. §142.87 does not apply, because Nabors was not Baham’s employer, as being raised for the first time on appeal, and therefore not considered. In any event, the appellate court noted that the district court’s conclusion that Nabors failed to exercise ordinary care supported its fault determination independently of the §142.87 violation. Finally, the appellate court noted that the intentions of the employer are dispositive of whether post-injury payments to a LHWCA-covered employee constitute true wages or advance payments of workers’ compensation. The appellate court held that the district court’s conclusions regarding Seatrax’s intentions were supported by enough evidence to preclude finding clear error. The district court’s judgment was affirmed in all respects. (5th Cir, October 18, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21172

I DON’T WANT TO PAY THIS LONGSHORE SHYSTER
HAYWOOD V. NORTHROP GRUMMAN SHIPBUILDING INC., ET AL.

Circuit Court Opinion
BRB Decision; BRB Reconsideration

Charles Haywood allegedly injured his left knee during the course of his employment with Northrop Grumman Shipbuilding Inc. Haywood initially retained an attorney to represent him. After Haywood’s attorney requested an informal conference Northrop commenced the voluntary payment of compensation, so the conference was cancelled. Haywood’s attorney later submitted a fee petition to the district director requesting an attorney’s fee of $7,225, payable by his client. Haywood challenged the fee petition on the basis that Northrop was liable for a fee, and asserting that he was unable to pay the fee. Following an informal conference the district director found that Northrop was not liable for the fee under §28(a), because it voluntarily paid claimant compensation within 30 days after receiving Haywood’s request for an informal conference, and held that Haywood was responsible for the fee. The district director also found that the attorney’s offer to reduce his fee to $4,500 to resolve the matter was reasonable and that Haywood submitted no evidence regarding his ability to pay the fee. The district director issued an order awarding an attorney fee of $4,500, payable by Haywood. On appeal, Haywood, proceeding pro se, challenged the district director’s fee award. The BRB found that the district director erred is using the date of the informal conference request to calculate the 30-day period. The proper calculation date, the date the claim was filed, was not a matter of record. Consequently, the Board could not determine whether the district director’s finding that Haywood was not entitled to an employer-paid attorney’s fee pursuant to §28(a) was in accordance with law. Accordingly, the district director’s finding that Northrop was not liable for a fee under §28(a) was vacated, and the case was remanded to re-assess Northrop’s liability for the attorney fee. The district director’s order was otherwise affirmed in all respects, making Haywood liable for the fee, if Northrop was found not liable therefore. The BRB denied Haywood’s motion for reconsideration of its earlier holding. Haywood appealed the Board’s denial of his request for reconsideration; however, the appellate court rejected the appeal, observing that it lacked jurisdiction to review the order denying reconsideration, noting that it could only exercise jurisdiction over final orders of the Board. Because the Board remanded the case for further proceedings, the Board's order was not a final order. Accordingly, the court dismissed the petition for review for lack of jurisdiction. (4th Cir, October 17, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21067

ALJ GETS IT RIGHT AND BRB SCREWS IT UP - SO WHAT ELSE IS NEW? (CONT.)
CARTER V. CALEB BRETT, L.L.C, ET AL.

BRB Decision
ALJ Decision

Rick Carter allegedly injured his back and neck at work in 1991, and he has been permanently totally disabled since October 1, 1993. In 1996, the parties entered stipulations, and the ALJ awarded Carter disability and medical benefits based on those stipulations. Carter chose a chiropractor as his treating physician. The employer, Caleb Brett, LLC, paid all benefits, including medical benefits, until February 2006, when it stopped paying for myofascial release technique and ultrasound treatments being billed by the chiropractor and massage therapy being rendered by a therapist at the chiropractor’s request. Carter filed a claim for these medical benefits. On employer’s motion for summary decision, the ALJ found that the unpaid disputed treatment provided by the chiropractor was not reimbursable because it exceeded the Act’s regulatory provision limiting chiropractic treatment to manual manipulations to treat subluxations. On appeal, the BRB distinguished Carter’s case from the Board’s holding in Bang v. Ingalls Shipbuilding, Inc., relied on by the ALJ. Then, essentially ignoring the restrictive language regarding reimbursement to chiropractors found at §702.404, the Board turned to the broad definition of covered “medical care” under §702.401(a) to justify its holding that the ALJ erred in denying payment for Carter’s massage therapy [see August 2009 Longshore Update]. Caleb Brett's subsequent appeal of this decision is still pending before the Fifth Circuit. After the Board's ruling, Caleb Brett took the position that it need not pay the chiropractor’s bills because the Board's decision did not expressly order it to do so. Carter ultimately obtained a Supplemental Order Declaring Default in the amount $3,220.20 from the District Director. Carter sought entry of a judgment in the amount of $3,220.20, to enforce the district director’s supplementary order declaring default. Caleb Brett moved to dismiss the petition, or in alternative, to enter a judgment declaring that Carter was entitled to no further chiropractic treatment. Caleb Brett argued that the supplementary order in dispute was not in accordance with law because: (1) Carter's petition for a supplementary order was not timely, and; (2) the underlying decision of the Board does not represent a "final order," as it was currently on appeal before the Fifth Circuit Court of Appeals and it did not specify the amount of compensation due or provide a means of calculating the correct amount without resort to extra-record facts. The district court found that the parties were engaged in informal proceedings before the OWCP well within the statutory period and held that Caleb Brett failed to show that, notwithstanding these proceedings, Carter was also required to file a formal petition for a supplementary order within a year of the claimed default. Additionally, the court found, contrary to Caleb Brett's contention, the mere fact an appeal of the underlying order is pending before the Fifth Circuit did not render it non-final for the purposes of §918. Accordingly, the court held that the appeal did not relieve Caleb Brett of its payment obligations under the Board's ruling, and the supplementary order of default could not be characterized as an improper effort to enforce a non-final decision. In conclusion, the court held that Caleb Brett had failed to show that the order was not made in conformance with law. Its motion to dismiss was denied and Carter's petition was granted. (USDC NDCA, October 20, 2011) 2011 U.S. Dist. LEXIS 121442
Updater Note: The appeal of the BRB’s ruling, to the Fifth Circuit Court of Appeals, was originally scheduled for oral argument on November 8, 2011. However, on October 18, 2011, the assigned panel decided that oral argument was not required. It’s just speculation on my part, but I suspect the decision to forego oral argument does not bode well for the petitioner. Caleb Brett now goes by the name of Intertek USA, Inc.

WHERE IS THE VESSEL TO GO ALONG WITH YOUR §905(B) CLAIM?
CARAVELLO V. THE CITY OF NEW YORK, ET AL.

Matthew Caravello was employed by Spearin, Preston and Burrows as a dock builder on a project to expand a section of pier along the Hudson River, which was to become part of a public park. Caravello was allegedly injured as he was walking along an H-beam, which he claimed twisted downwards causing his right leg to fall onto a concrete precast slab. In addition to claiming compensation under the LHWCA, Caravello filed suit against the construction manager, Skanska USA, Inc., and the property lessee, Hudson River Park Trust (HRPT), pursuant to §§905(b) and 933 of the LHWCA and New York Labor Law §§200, 240 and 241. Skanska and the owner moved for summary judgment, arguing that the LHWCA preempted New York's Labor Law against all defendants, and they are not liable under LHWCA. Caravello opposed the motion claiming that the LHWCA applied and does not preempt New York Labor Law, which he contended also applied. The court initially noted that Federal maritime law and admiralty jurisdiction do not necessarily supersede and preempt New York State Labor Law, if there is no showing that the State rule conflicts with Federal Law, or otherwise hinders uniformity. The court found that the defendants had not made a prima facie showing entitling them to summary judgment based on preemption under LWHCA. Although Caravello was injured on a gangway located on navigable waters, he was not involved in an activity that would affect maritime commerce. The court concluded that Caravello’s labor law claims, which reflected the state's interests in protecting health and safety of workers, did not conflict with or threaten the uniformity of maritime law. However, the court also found that defendants had established a prima facie case for summary judgment concerning Caravello’s LHWCA §933 and §905(b) claims, since neither Skanska nor the HRPT were Caravello’s employers or the owners of vessels involved, holding that Caravello had not sufficiently met his burden of proof to sustain his LHWCA causes of action. The court also found that Skanska had made a prima facie showing of entitlement to summary judgment concerning the Labor Law § 200 cause of action, since it was the construction manager and did not supervise Caravello's work. However, the court found that Caravello had raised sufficient issues of fact concerning whether Labor Law §200 applied to HRPT. The court granted the motion for summary judgment in part, severing and dismissing Caravello’s LHWCA causes of action and the cause of action against Skanska pursuant to Labor Law §200. Caravello’s remaining Labor Law claimed were allowed to remain in effect. (NY Sup. Ct, October 4, 2011) 2011 NY Slip Op 32610U; 2011 N.Y. Misc. LEXIS 4734

JOE GRACE FAILS TO SAVE THE DAY WITH LAST MINUTE NEW OPINIONS
SOBRINO-BARRERA V. ANDERSON SHIPPING CO., LTD., ET AL.

Junior A. Sobrino-Barrera was employed by stevedoring company Gulf Stream Marine and was serving as the gang supervisor unloading bundled steel pipes from a vessel. Sobrino-Barrera was injured when a rolling bundle pinned his left leg against the wall of the hold, crushing it. His left leg ultimately had to be amputated below the knee. Sobrino-Barrera brought a longshoreman's personal injury claim under §905(b) of the LHWCA against multiple defendants, including Anderson Shipping Co., Ltd. the owner of the vessel, SoCoGEM Sam the vessel's technical manager or operator and Oldendorff Carriers GmbH & Co. K.G. the vessel sub-charterer. The defendants all moved to strike the affidavit of Sobrino-Barrera liability expert, Captain Joe Grace, and asked that summary judgment be rendered in their favor. The defendants asserted the Grace affidavit was either is an untimely supplemental report or irrelevant. The enlarged cut-off date for plaintiff to submit expert reports was February 25, 2011, and the cut-off date for all discovery was April 22, 2011. Sobrino-Barrera responded that the June 10th affidavit was not a supplemental report but rather is submitted to authenticate its expert's timely-filed original report, dated February 15, 2011. The court rejected the later argument, noting that a comparison of Grace's affidavit to his February 15, 2011 report disclosed that he departed from and expanded upon his original report in numerous material respects. As the assertions and opinions were new, and Sobrino-Barrera had given no explanation for his failure to comply with FRCP 26(a) or shown that their addition would be justified and harmless, the affidavit was stricken by the court and was not considered in the court’s §905(b) analysis. In analyzing the turnover duty, the court noted that, up until the time of the accident there was no evidence that the longshoremen had made any complaint about the stowage of the cargo. The court also found that Sobrino-Barrera failed to produce evidence that the conditions that caused the harm were any less obvious to the vessel than to the longshoremen, or that the conditions were otherwise hidden or latent. Accordingly, the court held the vessel had no turnover duty to warn against a defect or to correct an unsafe condition. The court next pointed to that lack of summary judgment evidence that the Master took operational control of the loading of the vessel. Rather, the summary judgment evidence was uncontroverted that the Master did not do so in offloading. Unlike Scindia, the court found that there was no evidence in the case that any of the vessel's crew knew that the stowage of the pipes created such an unreasonable risk to the plaintiff and his gang that the stevedores' commencement of offloading operations was obviously improvident in the face of danger. The court granted the defendants' Motions for Summary Judgment and Sobrino-Barrera’s claims were dismissed on the merits. (USDC SDTX, October 20, 2011) 2011 U.S. Dist. LEXIS 121626

LONGSHOREMEN HAD ACTIVE CONTROL OVER OPERATION; NOT DEFENDANTS
CAJEIRA V. SKRUNDA NAVIGATION, C/O LSC, ET AL.

Carlos Cajeira was a longshoreman employed by Kinder Morgan Inc., who was assisting with the release of defendants’ tank ship, when he allegedly sustained injuries which are the subject of this suit. Kinder Morgan was using its own 10" hoses to discharge petroleum from defendants’ tank vessel. After the petroleum was fully discharged from the vessel, the hoses were disconnected and the ship’s crane was used to lower the hoses onto the dock so that Cajeira and his coworkers could stow them away. During the lowering of the fourth hose, Cajeira was four to five feet away from the edge of the pier and suddenly fell off the dock and into the water. Although Cajeira claimed that an unexpected movement by the hose caused his accident, he does not know what caused the hose to move and allegedly knock him into the water, and there was no evidence that the crane malfunctioned. Cajeira sought to recover damages under §905(b) of the LHWCA. Defendants moved for summary judgment, claiming they did not breach any duty of care under §905(b) of the LHWCA. Following a bench trial and a review of the evidence, the court found that defendants did not violate any duties owed to Cajeira. Although Cajeira argued that defendants violated the active operations duty by negligently operating the vessel's crane, causing the hose/line to jerk, defendants countered that Cajeira’s could not establish that the active operations duty was even triggered. Cajeira and the hose crew, by directing the crane, were in operational control of the crane. The court noted that Cajeira’s only proffered evidence that defendants exercised active control is that the ship’s crane operator was solely responsible for operating the crane on the night of the accident. However, the court found that Cajeira had failed to present any evidence that the crane operator acted negligently in carrying out his duties or executed any orders contrary to those given to him from Kinder Morgan’s crew. In construing the facts in a light most favorable to Cajeira, the court concluded the facts presented indicate that defendants did not retain substantial control over the crane as Cajeira and his coworkers were commanding the crane's movements. Defendants’ Motion for Summary Judgment was granted. (USDC NJ, October 26, 2011) 2011 U.S. Dist. LEXIS 123696

DEFENSE & INDEMNITY OBLIGATION VOIDED BY §905(B) OF THE LHWCA
HOLDEN V. U.S. UNITED OCEAN SERVICES, LLC., ET AL.

Paul Holden, a ship repairer and an employee of Buck Kriehs, claimed he was injured while repairing U.S. United Ocean Services, L.L.C. (UOS) vessels at Buck Kreihs' dock. Holden was on a gangway when a crew member of the vessel allegedly unhooked the gangway, without providing any warning to Holden, thereby causing the gangway to fall and hit the dock, allegedly severely injuring Holden. As a result of the alleged incident, Holden and his wife, filed his §905(b) lawsuit under the LHWCA, alleging personal injuries and loss of society claims, respectively, against UOS. Shortly thereafter, UOS filed a Third-Party Complaint against St. Paul Fire & Marine Insurance Company, seeking defense, indemnity and coverage under a marine general liability insurance policy that St. Paul issued to Buck Kreihs. UOS asserted that it was owed contractual defense and indemnity against the Holdens' claims under a General Services Agreement between UOS and Buck Kreihs, and that those purported contractual defense and indemnity obligations are insured under Buck Kreihs' St. Paul insurance policy. St. Paul moved for partial summary judgment, arguing that §905(b) of the LHWCA precluded UOS’s third-party action, because Buck Kreihs was Holden’s employer and the employer could not be held liable to the vessel for damages, directly or indirectly, and any agreements or warranties to the contrary were void. The court agreed, finding that, because the act that resulted in Holden's injury arose from UOS's alleged negligent actions, per Section 905(b), it could not require Buck Kreihs, the employer, to indemnify it. Accordingly, St. Paul, as Buck Kreihs' insurer, could not be required to contractually defend or indemnify UOS for this act. St. Paul's Motion for Partial Summary Judgment was granted. (USDC EDLA, October 19, 2011) 2011 U.S. Dist. LEXIS 120993

THE STATUTE OF LIMITATIONS HAS RUN
GREEN V. CLYDE M. ROBERTS, III, ET AL.

On January 26, 2006, an explosion rocked the vessel that Joel W. Green was working on, as it underwent repairs in a shipyard. Green, who was employed aboard the vessel as a welder, allegedly sustained injuries in the explosion. On September 3, 2010 (more than four and a half years later), Green commenced this action naming Clyde M. Roberts, III, and Independent Marine Consultants, Inc. as defendants and alleging maritime tort claims against Roberts for negligent supervision of the work being performed and against Independent Marine (Roberts' company) for negligence, seeking to hold that defendant liable for Roberts' conduct. To defend the timing of filing this action, Green specifically alleged in his Complaint that (i) he was prohibited by law from bringing suit against Roberts or Independent Marine until a March 2010 judicial determination in another lawsuit that defendants were not agents of the United States; and (ii) he did not discover or have knowledge of defendants' involvement until obtaining such information from the United States in discovery in that other action on November 15, 2007. As expected, defendants filed a Motion to Dismiss, wherein they maintained that Green's claims against them are facially barred by the applicable three-year statute of limitations. Green responded, asserting that he brought his claims within three years after they accrued, and that the Complaint should be deemed timely under doctrines of equitable tolling or equitable estoppel, in any event. Defendants' Motion to Dismiss was granted because all of Green’s claims asserted were time-barred on their face, and because the narrow doctrines of equitable tolling and equitable estoppel had no application. (USDC SDAL, October 14, 2011) 2011 U.S. Dist. LEXIS 119793

OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS

Digest #236

The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #236. 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 . . .

2ND CIRCUIT EASES RESTRICTIONS ON INTERLOCUTORY ADMIRALTY APPEALS
CHEM ONE, LTD. V. M/V RICKMERS GENOA, ET AL.

Circuit Court Opinion

The US Court of Appeals for the Second Circuit ruled that it will allow an interlocutory appeal in an admiralty case when a district court has determined all of the liabilities of a party and the district court’s decision is unaffected by any remaining claims. The case involved a 2005 maritime disaster, during which the M/V Rickmers Genoa vessel collided with another vessel, the M/V Sun Cross, in the Yellow Sea. The Rickmers Genoa sustained flooding in one of her cargo holds, and a few hours later, an explosion and a fire occurred in the No. 1 cargo hold of the Rickmers Genoa, resulting in the loss of cargo and a life. Numerous parties had filed a variety of claims against each other. The district court granted summary judgment with respect to one of the numerous claims. The party against which summary judgment was granted sought an interlocutory appeal, which was opposed by another party. The crux of the appellate court’s decision was that the panel overruled what was assumed to be the rule in the Second Circuit limiting the right to an interlocutory appeal by finding that an earlier contrary statement in Thypin Steel Co. v. Asoma Corp., 215 F.3d 273, was mere dicta, and not binding. The appellate court further found Thypin Steel’s dictum at odds with the plain language of 28 U.S.C. §1292(a)(3). (2nd Cir, October 20, 2011) 2011 U.S. App. LEXIS 21222

11TH CIRCUIT THROWS OUT PUBLIC POLICY DEFENSE, AFFIRMING LINDO
MAXWELL V. NCL (BAHAMAS), LTD

Circuit Court Opinion

Ricardo Maxwell, a Costa Rican seaman, sued his employer, NCL (Bahamas), Ltd., under the Jones Act in Florida state court. NCL removed the case to federal court, where it sought to enforce an arbitration agreement in Maxwell's employment contract. Maxwell asked the district court to remand the case to state court. The district court found that the arbitration agreement was invalid because it, along with the contract's choice of law clause, deprived Maxwell of his U.S. causes of action and thus violated public policy. Because the district court found the arbitration agreement unenforceable, it remanded the case to state court. NCL appealed from the remand order and argued that Thomas conflicts with the appellate court’s earlier decision in Bautista. The appellate court noted that in Lindo v. NCL (Bahamas) Ltd. it had recently recognized that Bautista limited the defenses available to enforcement of an arbitration agreement in an international commercial agreement, like Maxwell's employment contract, to fraud, mistake, and waiver, because the court concluded that they could be applied neutrally throughout the world. Although Thomas recognized public policy as another defense to enforcement of an arbitration agreement, the court had concluded in Lindo that Thomas's expansion of the defenses to enforcement of an arbitration agreement violated the court’s prior panel precedent rule. As such, public policy is not a valid defense to enforcement of an arbitration agreement. The appellate court reversed the district court's remand order, and remanded to the district court to enter an order compelling arbitration. (11th Cir, October 18, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 21237

YOU NEED TO PROVE NEGLIGENCE - THEY DON’T NEED TO PROVE A NEGATIVE
CHIZMAR V. MALPASO PRODUCTIONS CORPORATION ET AL.

Appellate Court Opinion

James Chizmar, Jr. was allegedly injured working on a movie set as he attempted to transfer, in open water, from one boat into another. Chizmar filed suit against Warner Brothers Entertainment, Inc. and Malpaso Productions Corp., claiming Jones Act negligence, general maritime negligence and unseaworthiness. The trial court subsequently granted Malpaso's unopposed motion for non-suit. At trial Chizmar testified that he was transferring from one boat to another and a large wave knocked the boats together causing him to lose his balance and fall forward. He landed on his left knee which was bruised and swollen. During closing argument, Chizmar's attorney focused heavily on the amount of damages. With respect to liability, he argued that Warner could have loaded the vessel on the beach eliminating the need for a boat-to-boat transfer and the need for Chizmar to perch on the ledge of the of the other vessel. Counsel also argued that the vessel was not seaworthy because it did not have steps. Following a full trial on the merits, a jury rejected his theories that Warner was negligent under the Jones Act and provided an unseaworthy vessel. Because it found Warner was not negligent, the jury was not required to consider causation or contributory negligence. The trial court entered judgment in accordance with the jury verdict, and Chizmar appealed from the judgment, challenging the sufficiency of the evidence supporting the finding that Warner was not negligent and the court's rejection of several proposed instructions. The appellate court found that the record contained sufficient evidence to support the jury's finding that Warner was not negligent. Although there was conflicting evidence regarding whether the transfer should have been avoided, a reasonable jury could have credited testimony that a boat-to-boat transfer was preferable. This inference is further supported by Chizmar's acknowledgment that boat-to-boat transfers occurred routinely and fell within his responsibilities. Additionally, Warner provided safety guidelines describing boat-to-boat transfers and provided safety training prior to commencing production. The court also noted that the record contained conflicting evidence regarding the need for steps on the boat to facilitate transfer. A reasonable jury could have simply credited one opinion and discredited the other. The appellate court rejected Chizmar's emphasis of his own witness's testimony, as ignoring the appropriate standard of review. Although Chizmar correctly pointed out that the lack of safe ingress and egress may, in proper circumstances, support an unseaworthiness claim, the jury rejected that claim. The court also held that Chizmar failed to show any prejudicial error in the jury instructions. The final judgment was affirmed in all respects. (Ca. 2nd App., October 19, 2011, UNPUBLISHED) 2011 Cal. App. Unpub. LEXIS 7955

LACK OF PRIVITY DEFEATS COLLATERAL ESTOPPEL DEFENSE
SAQUI V. PRIDE INTERNATIONAL, INC., ET AL.

Appellate Court Opinion

During storm preparation, on a mobile offshore drilling rig, Miguel Angel Barragan and another worker, Christian Spinoso, were working on tying down a heavy "burner boom." It became disconnected from the rig and fell into the water, pulling them and one other crew member overboard. Barragan and Spinoso were both killed in the incident. The trial court granted summary judgment in favor of Pride International, Inc., and other defendants, in connection with an action filed by representatives of the workers’ estates, related to death. The representatives appealed. This was after a federal lawsuit, filed by the representatives and other plaintiffs, was previously dismissed. On appeal, the court affirmed in part and reversed and remanded in part. Because the representatives did not challenge the grant of summary judgment in favor of Pride International and others, the representatives waived any potential error, and the court affirmed in this regard. The resolution of the appeal as to another defendant, Pride Central America, L.L.C. (PCA), turned on whether the representatives were in privity with the other plaintiffs in the federal district court litigation. The appellate court found the fact that the two cases arose out of the same maritime accident did not establish privity. PCA did not cite authority holding that the mere fact that two persons killed in an accident were cousins, as in this case, established privity. Because privity was not shown, which was an essential element of PCA’s collateral estoppel affirmative defense, the appellate court concluded that the trial court erred in granting PCA summary judgment. The appellate court affirmed the grant of summary judgment to the other defendants, but reversed as to PCA and remanded for further proceedings. (Tex. 14th App, October 25, 2011) 2011 Tex. App. LEXIS 8458

EMPLOYERS ENTITLED TO RESTITUTION OF FRAUDULENT MAINTENANCE & CURE
BOUDREAUX V. TRANSOCEAN DEEPWATER, INC.

Wallace Boudreaux filed a seaman’s complaint against Transocean Deepwater, Inc., seeking damages of $1 million to compensate his reduced earning capacity as a result of an alleged injury sustained while in Transocean’s employ as well as $250,000 in compensatory damages for back maintenance and cure allegedly owed by Transocean, continuing maintenance and cure costs and attorney's fees. Boudreaux claimed he injured his back while performing anchor maintenance aboard one of Transocean’s vessels. Through discovery, it was established that Boudreaux intentionally concealed significant back injuries at the time of his post-hire medical interview with Transocean. Transocean filed a Motion for Partial Summary Judgment on Boudreaux’s maintenance and cure claims, asserting Boudreaux had raised no issue of material fact in light of McCorpen. Boudreaux formally requested to be allowed to withdraw his maintenance and cure claims and the court granted his request. Transocean moved to file a counterclaim, which the court granted, and filed a counterclaim against Boudreaux seeking restitution of the maintenance and cure payments made to him. Boudreaux contended there is no cognizable general maritime law claim under Fifth Circuit precedent allowing restitution. Transocean conceded restitution for a Jones Act employer of maintenance and cure payments made to an employee subsequently found to have concealed a material, pre-existing medical condition under McCorpen is a res nova issue in the Fifth Circuit, but argued that Boudreaux had been unjustly enriched as a result of his fraud. After reviewing the law of other circuits, and various compensation schemes, the court agreed with Transocean that the logical and natural consequences for knowingly violating the duty to disclose such a condition, when clearly sought by the Jones Act employer, and the resulting receipt of benefits that would not have been due, weighed in favor of restitution. The court found Boudreaux concealment was more than unreasonable; they were intentionally done and void of good faith. Under the circumstances of the case, the employer's recovery of undue maintenance and cure payments or, alternatively, a credit in favor of the employer against monetary relief it might pay in resolution of ultimate liability issues would not run afoul of or interfere with traditional maritime policies. Instead, such a result would promote respect and compliance with same. The court granted Transocean’s motion for restitution, finding that Boudreaux engaged in willful misconduct. Even wards of the court must be forthright and truthful. The court found that Boudreaux had deprived himself of a seaman’s protection through his own willful and deliberate misconduct and consequences should be considered. An opposite result would lead to a travesty of justice, encouraging mockery of the judicial process and denigration of the founding principles of admiralty. (USDC EDLA, October 20, 2011) 2011 U.S. Dist. LEXIS 122275
Updater Note: Ballsy decision from Judge Ivan Lemelle. This now gives employers in the 5th Circuit something to hang their hats on, when seeking restitution from seamen who have obtained their employment and seamen’s benefits through fraud and deceit. Bravo Zulu to Judge Lemelle.

COURT HOLDS SEAMAN CAN HAVE TWO JONES ACT EMPLOYERS (CONT.)
DENNIS V. CALM C'S, INC., ET AL.

Victor Dennis was working for Calm C's Inc. as a captain assigned to a crew boat owned by Calm C's and contracted for by Weeks Marine, Inc. to assist in the performance of maintenance dredging. Dennis allegedly sustained injuries when Weeks’ dredge hit a pipeline owned by Contango Oil & Gas Company, causing an explosion. Dennis eventually sued Calm C’s, Weeks, the ACOE, and Contango, claiming negligence on the part of all parties. Contango was previous granted summary judgment, dismissing them from the lawsuit [see September 2011 Longshore Update]. Weeks moved for summary judgment on Dennis’s unseaworthiness, Jones Act, and maintenance and cure claims, contending it neither employed Dennis nor was Dennis a crew member of its dredge. However, after weighing the Ruiz factors, in light of Dennis’s “borrowed employee” allegation, the court concluded that the factors that supported a finding that Dennis was a borrowed servant outweighed those to the contrary. As a result, the court found that Weeks was an employer of Dennis, thus attaching potential Jones Act liability and responsibility for maintenance and cure [see October 2011 Longshore Update]. Following the court’s ruling on Weeks’ summary judgment motion, Calm Sea’s moved for summary judgment, asking the court to dismiss Dennis’s claims of Jones Act negligence and unseaworthiness under general maritime law. Calm C's primarily contended that because Dennis testified in his deposition that Calm C's was not negligent and that the vessel was not unseaworthy these claims must be dismissed. Dennis retorted that Calm C’s argument ignored the unseaworthiness of the vessel on account of a lack of adequate charting depicting the pipeline. Dennis also argued that Weeks was an agent of Calm C’s, and thus, the negligence of Weeks constitutes Jones Act negligence on the part of Calm C’s. The court agreed with Calm C’s that Dennis’s deposition testimony showed that, on the day of the explosion, nothing about the condition of the vessel caused Dennis any concern. In response to later questions in the same deposition asking whether Calm C's or its owner and president could have done anything different to prevent the explosion, Dennis added nothing to his testimony. The court went on to note that it had previously found that whether the chart on the vessel was timely updated was immaterial to the unseaworthiness claim, as it was an undisputed fact that the pipeline was marked on the NOAA chart prior to the explosion. Calm C’s motion for summary judgment was granted and Dennis’s negligence and unseaworthiness claims against Calm C’s were dismissed with prejudice. (USDC EDLA, September 30, 2011) 2011 U.S. Dist. LEXIS 113787

MCORPEN DEFEATS ANOTHER LYING SEAMAN (CONT.)
MOBLEY V. DANIELLE MARINE TOWING, II, LLC

Jimmy Mobley was employed as a relief captain aboard a vessel owned and operated by Danielle Marine Towing, II, LLC. Mobley claimed that he slipped and fell on the vessel's main deck after descending a flight of stairs, allegedly sustaining injuries. Mobley filed suit against Danielle Marine alleging that his injuries were caused by Danielle Marine's negligence and that the vessel’s unseaworthiness, because of the condition of non-skid material on the main deck. Mobley also made a claim against Danielle Marine for maintenance and cure but, in an earlier decision, upon a motion for summary judgment filed by Danielle Marine, the court found that Mobley was not entitled to maintenance and cure because he willfully concealed a prior back injury in his job application, the concealment was material to Danielle Marine's decision to hire him, and his current injury is related to the prior concealed injury [see February 2011 Longshore Update]. At a bench trial on Mobley’s remaining causes of action, an expert in marine safety for Danielle Marine opined that the amount of non-skid material on the main deck of the vessel was adequate. Additionally, a deckhand on the vessel testified that regular applications of non-skid material on the main deck were accomplished. The court concluded the testimony established that there was a sufficient amount of non-skid material on the vessel's main deck at the time of the accident, Danielle Marine was not negligent in its application of the non-skid material on the vessel's main deck, and the vessel was not unseaworthy. Mobley's remaining causes of action were dismissed with prejudice. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 113059

A "PERIL OF THE SEA" AGAINST WHICH ORDINARY CARE CANNOT GUARD
FULTON V. REBECCA IRENE VESSEL, L.L.C.

Eugene Fulton brought his seaman's injury action alleging that he injured his right knee while working aboard a vessel owned by Rebecca Irene Vessel, L.L.C., (RIV) while the vessel was on a fishing voyage. Fulton claimed he injured the knee while jumping to deck out of the way of a swinging crab pot, yet he failed to report the incident at the time it allegedly occurred. Fulton eventually underwent an arthroscopic partial menisectomy. RIV denied liability for Fulton’s injuries. Following a three-day bench trial, the court found that Fulton had not met his burden of proving, by a preponderance of the evidence, that RIV was negligent. The procedures used aboard the vessel for handling the crab pot were consistent with practice throughout the trawling industry and were safe under usual conditions, including heavy seas or winds of forty miles per hour. The wave that lifted the crab pot up and carried it over the rail, causing it to swing toward Fulton, was a highly unusual and unforeseen event over which RIV had no control. As such, it was a "peril of the sea" against which ordinary care and prudence cannot guard. The court further found that Fulton failed to meet his burden of demonstrating, by a preponderance of the evidence, that there was an unseaworthy condition on the vessel. The court concluded, as a matter of law, that the crab pot which came back over the rail did not represent an unseaworthy condition on the vessel. The court Found in favor of RIV on all Fulton’s claims and awarded court costs to RIV. (USDC WDWA, October 25, 2011) 2011 U.S. Dist. LEXIS 123354

DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN [KINCHEN](CONT.)
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.

Jacob Kinchen was an ironworker employed by Boh Bros. to work on a bridge under construction, who was allegedly injured when a crew boat in which he was traveling from the work site to shore at the end of the day allided with one of the survey towers used in conjunction with the bridge construction. Kinchen filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewit Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for the boating accident and the resulting injuries. The trial was bifurcated on liability and damages and, in an earlier decision [see July 2011 Longshore Update] the court found the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires on the crew boat created a visual obstruction, and did not remedy the situation which was created by its employee. Further, the court held that the evidence demonstrated that the placement of the tires on the push knees rendered the crew boat unseaworthy. However, Kinchen's recovery was reduced by his comparative negligence, which the court found to be 50% fault for the allision. This part of the trial was to determine Kinchen's damages. The court initially noted that, on the date of the accident, Kinchen’s torso hit the crew boat's steering column and his face went through the front windshield, causing him to sustain severe facial lacerations that exposed facial tissue and the bony skeleton. Kinchen also had intraoral lacerations and avulsed teeth. At the hospital Kinchen was diagnosed with: (1) multiple complex and severe lacerations to his face, lips and oral cavity; (2) fractured nose and septum; (3) multiple avulsed and broken teeth; and, (4) multiple lacerations and contusions to his shoulders, knees, arms, wrists, and chest. Kinchen's facial lacerations required approximately 700 to 800 stitches, resulting in permanent scars. Kinchen also had to undergo emergency surgery to place a stent in his ureter between his kidney and bladder to relieve renal swelling. Kinchen testified at trial that he was unable to talk after the allision because his face was literally torn off and that his physician has told him that the numbness in his face is permanent. Kinchen testified that he suffered emotional pain as a result of the accident and that his wife could not look at him when she arrived at the hospital after the accident, and that her emotional reaction adversely affected him. After hearing all the evidence on damages, the court awarded total damages of $1,167,817, subject to a reduction for Kinchen’s 50% fault. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 112464

DON’T GIVE THEM A BOAT AND MAKE THEM SEAMEN [ABSHIRE](CONT.)
GRAB V. TRAYLOR BROS, KIEWET & MASSMAN, A JOINT VENTURE, ET AL.

Lary Scott Abshire was an ironworker employed by Boh Bros. to work on a bridge under construction, who was allegedly injured when a crew boat in which he was traveling from the work site to shore at the end of the day allided with one of the survey towers used in conjunction with the bridge construction. Abshire filed suit against Boh Bros. Construction Co., L.L.C. and Traylor Bros., Inc., Kiewit Southern Co., & Massman Construction Co., A Joint Venture alleging that the defendants were liable for the boating accident and the resulting injuries. The trial was bifurcated on liability and damages and, in an earlier decision [see July 2011 Longshore Update] the court found the evidence demonstrated that Boh Bros. was negligent because it was aware that the tires on the crew boat created a visual obstruction, and did not remedy the situation which was created by its employee. Further, the court held that the evidence demonstrated that the placement of the tires on the push knees rendered the crew boat unseaworthy. No fault was attributed to Abshire. This part of the trial was to determine Abshire’s damages. Following the accident, Abshire was diagnosed with left sacral fractures, left pelvis fractures, thoracic lumbar spine injuries, a partially collapsed lung, crushed testicles, and bruises and abrasions. Abshire later underwent surgery to repair his fractured sacrum and pelvis. Abshire’s treating orthopedist testified that Abshire will likely have chronic back pain requiring treatment for the remainder of his life. His restrictions included avoiding lifting over 30 or 40 pounds, twisting or bending, climbing stairs or ladders, or working at heights. Abshire had also been treated by a clinical and medical psychologist for mental and emotional issues related to the accident. After hearing all the evidence on damages, the court awarded total damages of $4800,438. (USDC EDLA, September 29, 2011) 2011 U.S. Dist. LEXIS 113429

ORDER DENYING ARBITRATION NOT BE SUSTAINABLE ON ANY GROUND (CONT)
JIMENEZ V. WEEKS MARINE, INC.

Jose Jimenez was allegedly injured in a fall from a compressor on a deck barge in a shipyard during the course and scope of his employment with Weeks Marine. Several days after the injury, Jimenez executed a Claim Arbitration Agreement in which he agreed to arbitrate any claims arising from his injury in exchange for Weeks Marine agreeing to advance certain sums to Jimenez. Two months after the incident giving rise to his injury, Jimenez brought suit against Weeks under the Jones Act and general maritime law and refused Weeks’ demand to submit the claims to arbitration, although he continued to accept payment of advances under the Agreement. Weeks Marine filed a motion to compel arbitration in the trial court, which denied the motion after briefing and a hearing. Weeks then sought mandamus relief from the appellate court, which rejected Jimenez’s arguments [see January 2008 Longshore Update]. With respect to Jimenez’s defense of procedural unconscionability, the appellate court concluded that the trial court was required to hold an evidentiary hearing. The trial court conducted an evidentiary hearing and denied Weeks’ first amended motion to compel arbitration, concluding that the Agreement was invalid because it is procedurally unconscionable and Weeks procured it by use of duress. On mandamus appeal, the appellate court held that the trial court abused its discretion in denying Weeks’ motion to compel arbitration. The court conditionally granted the petition for writ of mandamus and directed the trial court to vacate its order and compel arbitration of Jimenez’s claims [see November 2009 Longshore Update]. The arbitral panel determined that Weeks was liable for Jimenez’s injuries, but reduced the award by half for Jimenez’s contributory negligence. The panel did not, however, award Jimenez prejudgment interest. Jimenez appealed the arbitral panel's exclusion of prejudgment interest without success. Jimenez next moved to enforce the arbitration award in state court, again asserting that the arbitration award should have included an award of prejudgment interest. The court denied Jimenez’s motion. Jimenez then filed the instant action in Federal court, entitled Motion to Enforce the Arbitration Award in Full and Ancillary Complaint, again asking this court to amend the arbitration award to include prejudgment interest, post-judgment interest, costs, and attorney fees. After reviewing the relevant case law, the parties' arguments, and their supporting evidence, the court concluded that the question of prejudgment interest, attorney fees, interest, and costs was properly submitted to the arbitrators. The arbitration agreement in question contained a broad arbitration clause, providing that any dispute arising from the contract would be submitted to arbitration. The court held that the arbitration panel was deemed to have considered the issue of prejudgment interest, attorney fees, interest, and costs and its declination to include an award of same was a determination on the merits, which the court could not disturb. The court went on to point out that, even if it had the ability to grant the relief sought, Jimenez would still be prohibited from receiving an award of pre-judgment interest. The court found that, since the recovery of prejudgment interest is not permitted under FELA, then it cannot be permitted under the Jones Act either. Accordingly, the court held that Jimenez was not entitled to an award of prejudgment interest. Jimenez’s Motion to Enforce Arbitration Award in Full and Ancillary Complaint was denied with respect to the issues of prejudgment interest, costs, and attorney fees. (USDC SDTX, October 14, 2011)
Updater Note: This is one case that does not stand for the proposition that arbitration is cheaper than litigation. Thanks to our team at Brown Sims of Houston, TX for putting up a great defense to the bitter end.

IF YOU WANT MAINTENANCE & CURE, PROVIDE AN HONEST MEDICAL HISTORY
WILKERSON V. LOUPE CONSTRUCTION AND CONSULTING COMPANY, INC.

Daniel Clay Wilkerson brought suit under the Jones Act and general maritime law against Loupe Construction for injuries he allegedly sustained while employed by the company as a vessel Captain. Specifically, Wilkerson alleged that while he was serving as captain, his vessel capsized, causing alleged injuries to his back, neck, spine, and mind. Wilkerson filed a motion requesting an expedited trial seeking judgment against Loupe for maintenance and cure, including attorneys' fees and compensatory and punitive damages arising out of the denial of maintenance and cure. In response, Loupe filed a motion for summary judgment on the maintenance and cure issue, asserting a defense under McCorpen based on Wilkerson's asserted withholding of material information about his medical condition when he completed two personal history questionnaires as part of his application for employment with Loupe. Discovery in the case revealed Wilkerson had suffered ruptured discs in his neck and back in a 1999 motor vehicle collision; had chronic neck and back pain; and had been on prescription medication for the conditions when he began his employment with Loupe. On the Personal Health History questionnaire, that Wilkerson completed when he was hired by Loupe, he denied any prior treatment for these conditions, denied being on medication, and signed a statement attesting to the truth of his declarations. The court found that Loupe had conclusively shown that Wilkerson intentionally misrepresented and concealed medical facts when he applied for employment, satisfying the first prong of the McCorpen defense. Since Loupe offered testimony that Wilkerson would not have been hired had he disclosed truthfully his medical conditions and prescription drug regimen, the court found Loupe had also satisfied the materiality criterion in the analysis. Finally, the court found that Wilkerson's alleged work injuries were to his back and neck — the same body parts in which he suffered ruptured discs in a 1999 accident and chronic pain since, satisfying the causal connection criterion. Instead of responding to the substance of Loupe's arguments, Wilkerson argued that Loupe did not plead the McCorpen defense affirmatively, thereby waiving its right to assert the defense. The court rejected this argument as meritless. The court also rejected Wilkerson’s objection to the authenticity and use of the alleged employment records from Loupe. The court granted Loupe’s motion for summary judgment. (USDC EDLA, October 18, 2011) 2011 U.S. Dist. LEXIS 120495

SUMMARY JUDGMENT DENIED ON URINATION-RELATED INJURY (CONT.)
WALDSACHS V. INLAND MARINE SERVICE, INC., ET AL.

William Waldsachs was an employee of Inland Marine Service Inc. After a thirty-day term of service on one of Inland Marine's barges, Waldsachs disembarked several hundred miles upriver from his home. From there, Waldsachs boarded a van, owned by C/C Transport, Inc., and which was to drive him home. On the trip home, Waldsachs requested the driver to pull over so that he could urinate. Waldsachs exited the van and proceeded to walk into an open field that abutted the roadway to do his business. While crossing the field, Waldsachs alleges the he stepped into a hole that had been obstructed by debris and fractured his left tibia and fibula. Unable to stand, Waldsachs crawled back to the van and was driven for treatment at a nearby hospital. The injury later required surgery. Waldsachs filed an action under the Jones Act against Inland Marine and common law negligence against C/C, alleging that Inland Marine and its agent, C/C, were negligent in transporting him. In an earlier ruling, the court denied C/C’s motion for summary judgment, finding it had a duty as a common carrier to stop at a safe location for Waldsachs to urinate and the issue of causation was one best resolved by a jury [see October 2011 Longshore Update]. Inland Marine now moves for summary judgment, arguing that C/C is not its agent or employee and therefore it cannot be held liable for their driver’s actions. Inland Marine further maintained Waldsachs could not establish a breach of duty under the Jones Act because there was no duty to keep him safe during the trip between the job site and home. The court found that Inland Marine's arguments ignored the majority of legal decisions that have interpreted the breadth of "operational activities," and finding that transporting seaman or railroad employees to and from a job site constitutes an operational activity. The court also found that Inland Marine had an express contractual agreement with C/C to transport its crew. Waldsachs did not select the transportation company or pay them for the trip; instead, Inland Marine offered the service to its employees. The court concluded that the transportation of crew between ports was an operational activity as envisioned under FELA. Consequently, the Court found that Inland Marine could be held vicariously liable for C/C's negligence under the principles of agency, since C/C and its driver were acting as agents for Inland Marine during the transport of Waldsachs. Since there was sufficient evidence for a reasonable jury to determine C/C and its driver did not provide a safe workplace or consider the obvious dangers of stopping on the side of major interstate for passengers to urinate, that court concluded that Inland Marine's statements about "notice" are unavailing since its agent knew or should have known of these dangers. This clear departure from the duties of a common carrier, coupled with the low evidentiary threshold required by Jones Act claims to reach the jury, compelled the court to deny summary judgment for Inland Marine. (USDC WDKY, October 7, 2011) 2011 U.S. Dist. LEXIS 116192

PAYMENT OF CURE DOES NOT EQUATE TO AN IME
Y&S MARINE, INC. V. MAZA

Y&S Marine, Inc. employed Travis Maza as a deckhand on one of its vessels. Maza was allegedly injured when lifting either a trash can lid or a garbage bag and claimed to have experienced low back pain. Maza was originally diagnosed with a back strain and released to duty, as tolerated. Instead, Maza returned home and doctor shopped until he found a doctor that recommended surgery. Maza then retained counsel and filed his Jones Act suit. Given the differing opinion of the doctors that Maza had already seen, Y&S asked Maza to attend an IME, but counsel for Maza refused Y&S's request on three separate occasions – even after Y&S sought a declaratory judgment – on the ground that Maza's examination with one of the initial physicians that Maza saw constituted Y&S's IME. Y&S moved to compel Maza’s attendance at an IME, arguing that Maza's physical condition was in controversy because Maza's own two experts expressed contradictory opinions, and Y&S asserted its right to reconcile the opinions through an IME by its own expert. Y&S also maintained that it is entitled to an IME because Maza failed to report a pre-existing back condition on his employment form and it was entitled to investigate a potential McCorpen defense. The court concluded that there was no question that Maza's physical state was in controversy and found that Y&S had shown good cause for the requested IME. The court found no evidence that Y&S had previously had an IME under FRCP 35 and held that the prior treatment that Maza had, before litigation began, was part of Y&S's cure obligation, not an IME. The court granted Y&S’s Motion to Compel Maza to attend an Independent Medical Examination. (USDC EDLA, October 11, 2011) 2011 U.S. Dist. LEXIS 117119

UNSEAWORTHINESS CLAIM CAN’T PROCEED AGAINST NON-OWNER OF VESSEL
ALVARADO V. DIAMOND OFFSHORE MANAGEMENT CO.

Monolito Alvarado allegedly sustained injuries while employed by Diamond Offshore Management Co. as a seaman onboard a Diamond Offshore vessel. Alvarado filed suit seeking to recover damages for alleged Jones Act negligence, unseaworthiness, and maintenance and cure, asserting in his Complaint to have experienced a lifting accident which resulted in serious painful injuries to his shoulder and other parts of his body. In its Answer, Diamond Offshore denied liability and subsequently moved for summary judgment. Diamond Offshore contended that both Alvarado’s Jones Act and unseaworthiness claims fail as a matter of law because the amount that Alvarado was required to lift — 50 to 60 pounds — was not unreasonable. Secondly, Diamond Offshore maintained that it is not the owner of the rig to which Alvarado was assigned. Therefore, Alvarado’s unseaworthiness claim should be dismissed. In response, Alvarado simply argued that material fact issues remained, with respect to his negligence claim, that are properly decided by a jury. With respect to Diamond Offshore’s arguments regarding the unseaworthiness claim, Alvarado did not provide a response. The court found that Alvarado had raised factual issues to rebut Diamond Offshore’s argument that he unable to show the negligent conduct required to maintain a Jones Act claim. Alvarado asserted that he would present evidence at trial, including the testimony of a health and safety expert, to prove that Diamond Offshore did not meet the standard of care required of a Jones Act employer, arguing that a safer method could have been used for material handling equipment and Diamond Offshore failed to properly train him in proper lifting techniques. Therefore, the court concluded that the issues of fact and law were too intertwined to grant summary judgment on the negligence claim. However, the court granted summary judgment on the unseaworthiness claim, holding that Alvarado had failed to offer any evidence that Diamond Offshore owned the vessel in question. Therefore, despite drawing all inferences in favor of the non-moving party, the court had to conclude that Diamond Offshore is not the owner of the vessel at issue, and that an unseaworthiness claim may not be maintained against it. Diamond Offshore's Motion for Summary Judgment was denied in part and granted in part. (USDC EDLA, October 17, 2011) 2011 U.S. Dist. LEXIS 119629

ARBITRATION SEEMS TO BE GETTING EASIER TO ENFORCE
HODGSON V. ROYAL CARIBBEAN CRUISES, LTD.

Adan Hodgson was employed by Royal Caribbean Cruises, Ltd. As a seaman on one of Royal’s cruise liners. While working for Royal, Hodgson was allegedly injured and claimed that he sought treatment for his alleged injuries ,that Royal did not provide. Hodgson filed his Jones Act suit in state court. Royal removed the case to federal and sought to compel arbitration. Hodgson moved to remand the case back to state court. Because the arbitration agreements incorporated into Hodgson's employment agreements were found to be enforceable by the court, Royal’s Motion to Compel Arbitration was granted and Hodgson's Motion to Remand was denied. (USDC SDFL, October 19, 2011) 2011 U.S. Dist. LEXIS 121034

SIGNIFICANT RULINGS IN HORIZON DEEPWATER LITIGATION
IN RE: OIL SPILL BY THE OIL RIG "DEEPWATER HORIZON" IN THE GULF OF MEXICO

Judge Barbier issued this order in connection with the B3 Master Complaint, one of several Master Complaints in this multi-district litigation, involving the Deepwater Horizon spill and ensuing litigation. Among Judge Barbier’s rulings were the following: 1. State-law claims were held to be preempted by maritime law and dismissed. 2. Derivative immunity and preemption were not established on the face of the Complaint, but were held to be preserved. 3. The claims of Plaintiffs who had not alleged an "injury" as recognized in Hagerty v. L & L Marine Services, Inc., 788 F.2d 315, 319 (5th Cir. 1986), were dismissed. 4. Medical monitoring costs were held to be available as a form of damages under maritime law. 5. Negligence per se claims were dismissed; but Plaintiffs were advised they could amend the B3 Master Complaint if they wished to assert a more definite statement of the claim for negligence per se. 6. Plaintiffs who are seamen were held not entitled to punitive damages. 7. Claims for battery and nuisance asserted under maritime law were dismissed. (USDC EDLA, September 30, 2011) 2011 U.S. Dist. LEXIS 113424
Updater Note: Although Judge Barbier expressed some doubt on his denial of punitive damages to seamen, given the Supreme Court's recent decision in Atlantic Sounding Co. v. Townsend, he nevertheless noted that he could not assume the Fifth Circuit has changed its position on claims falling outside the scope of Townsend.

NO OPPOSITION, NO PROBLEM
VOISINE V. ODEBRECHT CONSTRUCTION, INC.

Sean Voisine was working as a Jones Act seaman employed by Odebrecht and was assigned to work as a heavy equipment operator aboard its spud barge. While he was performing maintenance on a crane, Voisine was allegedly struck by a counter weight, knocking him to the deck and causing alleged injuries to his head, jaw, neck and shoulder. Voisine filed suit alleging both Jones Act and general maritime claims. In an amended complaint, Voisine specifically invoked the court's admiralty jurisdiction under FRCP 9(h). In its answer, Odebrecht demanded a trial by jury on all issues. Voisine moved to strike Odebrecht’s jury demand, noting that the Federal Rules of Civil Procedure do not permit for a trial by jury in an admiralty case. Odebrecht did not oppose the motion, which was granted by the court. (USDC EDLA, October 26, 2011) 2011 U.S. Dist. LEXIS 123980

Quotes of the Month . . . “The man who trims himself to suit everybody will soon whittle himself away.”--Charles Schwab

“If you tell the truth, you have infinite power supporting you; but if not, you have infinite power against you.”--Charles Gordon

“Chains of habit are too light to be felt until they are too heavy to be broken.”--Warren Buffett

Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

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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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Redistribution permitted with attribution.

October 2011 Longshore Update

2011-09-30T06:51:00.000-07:00

October 2011

Notes From Your Updater - On September 27, 2011, the U.S. Supreme Court granted the petition for certiorari in the case of Roberts v. Sea-Land Services (Docket No. 10-1399) [see December 2010 Longshore Update]. The question presented is limited to: Whether the phrase “those newly awarded compensation during such period” in Longshore Act §6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.

On August 24, 2011, the California Supreme Court declined to review a controversial lower court ruling that gives doctors leeway in determining workers' compensation disability ratings. The ruling involved the case of State Compensation Insurance Fund v. Workers' Compensation Appeals Board [Almaraz]. Almaraz filed for workers' compensation and was assigned a 12 percent disability rating using the AMA Guides to the Evaluation of Permanent Impairment. Almaraz appealed to the Workers' Compensation Appeals Board, arguing that doctors should have latitude in rating disabilities. The board sided with Almaraz and ruled that doctors could depart from the schedules in the AMA Guides as long as they stayed within the "four corners" of the Guides. The board's ruling was affirmed by the state's 5th Circuit Court of Appeals. The State Compensation Insurance Fund appealed the board's ruling, but the Supreme Court's decision not to review the case means the ruling allowing physician discretion will stand.

It’s official. Yes, folks, just what you have all been waiting for - notwithstanding the current state of our economy the National Average Weekly Wages (NAWW), Minimum and Maximum Compensation Rates, and Annual October Increases (Section 10(f)), effective October 1, 2011, are out. The new rates reflect a 3.05% increase in the NAWW, increasing the maximum compensation rate to $1,295.20.

The US Coast Guard and the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE) have released the final reports of the Joint Investigation Team (JIT) on the April 20, 2010 Deepwater Horizon explosion and fire, with loss of life and a resulting oil spill. The two agencies released a Joint Cover Letter. The US Coast Guard re-posted Volume I of the JIT report, originally released on April 22, 2011, addressing only issues within the purview of the Coast Guard. This is now accompanied by the Commandant’s Final Action and an Enclosure responding to comments received on the initial release. The BOEMRE posted Volume II of the JIT report, addressing issues within the purview of the Bureau. This is accompanied by various Appendices.

On October 21, 2011, the Admiralty Committee of the Federal Bar Association of the Western District of Washington and the Washington State Bar Association, will present a seminar on Current Issues on Maritime Law. Need CLE credits, but don’t want to travel to the left coast? The Washington State Bar Association has perfected the process for attendance online via webcast, which provides a travel-free opportunity not only to see and hear the presentations but to ask live questions of the speakers and other webcast attendees. Washington and some other states recognize "live" CLE credits for attending by webcast. The seminar is approved for 6.75 CLE (0.75 ethics) credits in Washington.

On September 21, 2011, the 9th Circuit Court of Appeals filed an amended opinion in the case of Lopez v. Pacific Maritime Association [see April 2011 Longshore Update], replacing the opinion filed on March 2, 2011. With these amendments, Judges Ripple and Graber voted to deny the petition for panel rehearing, and Judge Pregerson has voted to grant it. Judge Graber voted to deny the petition for rehearing en banc, and Judge Ripple has so recommended. Judge Pregerson has voted to grant it. The full court was advised of the petition for rehearing en banc, and the petition for panel rehearing and petition for rehearing en banc were. The outcome remained the same and the drug test one strike rule for longshoremen was upheld. (9th Cir, September 21, 2011) 2011 U.S. App. LEXIS 19620

TRUE DOUBT RULE IS GONE. LHWCA CLAIMANT BEARS BURDEN OF PROOF
CERES MARINE TERMINALS, INC. V. GREEN, ET AL.

Circuit Court Opinion
BRB Decision
ALJ Decision

Robert Green worked as a longshoreman for 23 years, underwent audiometric testing, which revealed a 3.75 percent binaural hearing loss. Since the results of the hearing evaluation were consistent with noise exposure and noise-induced hearing loss, Green filed a claim under the LHWCA against Ceres Marine Terminals, Inc. Green later underwent audiometric testing, on behalf of the employer, which revealed a zero percent hearing impairment. In his decision, following a hearing on the issues, the ALJ found that neither audiogram was presumptive evidence of the degree of Green’s hearing loss because there was no evidence that Green was provided with a copy of either audiogram and accompanying report within 30 days of the date of the examination. The ALJ found both examinations to be credible and equally probative. He then averaged the examination results and ruled that claimant was entitled to LHWCA benefits, albeit at a reduced level. The ALJ found that Green suffered a hearing loss of 1.875 percent. The ALJ also found that Green was entitled to hearing aids for his work-related hearing impairment. As the ALJ found that both audiologists agreed that the hearing aids would benefit Green, he awarded the cost of these hearing aids, $2,500, plus an additional 20 percent, totaling $3,000, pursuant to the fee schedule used by the South Carolina Workers’ Compensation Commission. Ceres appealed the ALJ’s decision, but the BRB affirmed in all respects except for reducing the hearing aid award to $2,500. On further appeal, Ceres contended that the ALJ failed to adhere to the burden of proof as established by Greenwich Collieries, which eliminated the “true doubt” rule. It was difficult for the appellate court to find that substantial evidence supported the ALJ's conclusion that the audiograms were equally probative. However, even if the court accepted that the evidence refuting and confirming hearing loss was in equipoise, the appellate court held the Green failed to meet his burden of proof to establish disability because in Greenwich Collieries the Supreme Court previously held that when the evidence was evenly balanced, the benefits claimant had to lose. The appellate court held that the BRB committed a clear error of law when it affirmed the ALJ's decision and order, relying on its own precedent rather than the controlling law set forth by the Supreme Court. Once the unchallenged finding was made by the ALJ that the evidence was equally probative, Green failed to meet his burden of proof as a matter of law and his claim for binaural hearing loss benefits should have been denied. The decision was reversed. The award was vacated. The case was remanded to the ALJ only as to the limited issue of the award of attorney's fees. (4th Cir, September 6, 2011) 2011 U.S. App. LEXIS 18489

KNEW SHE WAS SHOT, BUT DIDN’T KNOW SHE WAS CRAZY
DYNCORP INTERNATIONAL, ET AL V. DIRECTOR, OWCP, ET AL. [MECHLER]

Circuit Court Opinion
BRB Decision
ALJ Decision

Dyncorp International, which operated various overseas prisons on behalf of the United States government, assigned Elizabeth Mechler to the Mitrovica Detention Center in Kosovo, where, on April 17, 2004—her first day on the job—she and five other Dyncorp employees were shot by a Jordanian soldier working for the United Nations. Mechler was wounded in her left leg and pelvis, but, after treatment at a military hospital, returned to work on crutches two days after the attack. Because of her physical injuries Dyncorp assigned Mechler to light duty, where she remained until January 2005. It was not until April 16, 2006, that Mechler filed a claim for workers compensation under the LHWCA, as extended by the Defense Base Act. Applying the Act’s one year statute of limitations, the ALJ found that Mechler’s claim was time barred because she should have been aware that her injuries would likely result in an impairment of her earning capacity at the time of her evaluation of October 2004. The ALJ also noted that the examining physician had diagnosed Mechler with mental impairments following his evaluation in October, 2004, and that Mechler had sought treatment for a multitude of psychological symptoms thereafter. Mechler appealed and the Benefits Review Board reversed and remanded, instructing the ALJ to apply a statutory presumption in favor of timeliness. The Board reviewed the record and concluded that there was not substantial evidence to support the ALJ’s finding that by October 2004 Mechler was constructively aware of the connection between her psychological injury and her future earning capacity. The Board was particularly concerned by what it perceived as the ALJ’s reliance on evidence related to Mechler’s temporary physical impairment immediately following the shooting. On remand, the ALJ awarded Mechler disability benefits based on her psychological impairment. Dyncorp and its insurance carrier appealed, asserting that they met their burden of production showing Mechler’s claim was untimely and that the ALJ’s initial finding of untimeliness was supported by substantial evidence. They characterized the Board’s review, not as one for substantial evidence, but rather as an exercise in unauthorized fact-finding. Reviewing the record as a whole, the appellate court found that the evidence in the case was not of the quantity or character that would allow a reasonable mind to conclude that Mechler had enough information—either from Dyncorp, her healthcare providers, or other sources—to realize more than one year before she filed her claims that her psychological problems would result in a permanent loss in earning capacity. The appellate court’s independent review of the administrative record led it to conclude that there was almost no evidence that Mechler, herself, believed she was permanently impaired more than one year before filing her claim and the ALJ’s initial finding was not supported by substantial evidence, and therefore, in reversing this finding, the Board did not exceed its statutory standard of review. Accordingly, the order of the Board reversing the ALJ’s dismissal of Mechler’s claims was affirmed. (2nd Cir, September 2, 2011) 2011 U.S. App. LEXIS 18325

ALJ’S FAILURE TO USE AMA GUIDES RULED HARMLESS ERROR
STAUBLEY V. ELECTRIC BOAT CORPORATION, ET AL.

Circuit Court Opinion
BRB Decision
ALJ Decision

Clyde Staubley was allegedly exposed to asbestos while working for Electric Boat Corporation as an electrician. Staubley was eventually diagnosed as having pleural plaques consistent with asbestos exposure. Staubley’s physician also opined that he had a 20 percent lung impairment under the AMA Guides to the Evaluation of Permanent Impairment. Staubley filed a claim for benefits under the LHWCA for a work-related lung impairment. In her decision, the ALJ found that Staubley’s work-related asbestos exposure contributed to a mildly reduced lung diffusion capacity and restrictive lung disease. The administrative law judge averaged the ratings provided by the employer’s physician and Staubley’s physician to find that Staubley had a 10 percent permanent lung impairment. The ALJ found that Staubley’s lung impairment reached maximum medical improvement in January 2008 and, accordingly, awarded Staubley compensation for a 10 percent permanent impairment commencing January 31, 2008. Staubley appealed, challenging the ALJ’s finding that he has a 10 percent lung impairment and the commencement of benefits on January 31, 2008. Staubley contended that he was entitled to an award for a five percent lung impairment from the date he retired on March 26, 1996 to January 30, 2001, and to an award for a 20 percent lung impairment as of January 30, 2001, when he was first examined and tested. The Benefits Review Board rejected Staubley’s arguments and affirmed the ALJ’s award of benefits. Although the BRB found that the ALJ most likely erred by not taking judicial notice of the Guides, it held that the error was harmless. On further appeal Staubley argued that the ALJ erred by not taking judicial notice of the AMA Guides in evaluating his claim for benefits and by finding that his impairment became permanent in January 2008 rather than at the time of his retirement. The appellate court agreed with the Board that the ALJ most likely erred by not taking judicial notice of the Guides, because the LHWCA requires that a claimant's permanent impairment be determined under the Guides. Nevertheless, the court also agreed with the Board that under the circumstances of the case, the ALJ's error was harmless. Because pleural plaques are not evidence of impairment and because one rating relied solely on those plaques to support a finding of a five-percent defect, the ALJ's decision not to credit that medical opinion was supported by substantial evidence, regardless of the ALJ’s failure to take judicial notice of the Guides. Additionally, the ALJ specifically limited her findings to pulmonary function test results which used the same predicted value standard in all tests. Finally, the appellate court held that the ALJ’s finding of maximum medical improvement in January 2008 was supported by substantial evidence. Staubley’s petition for review was denied. (2nd Cir, September 1, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18427

HE’S AN OKLAHOMA JUDGE. WHAT DOES HE KNOW ABOUT MARITIME LAW
POORE V. CONAGRA FOODS, INC.

Austin Poore was employed by Lloyd Richards Temps (LRT), and was assigned through LRT to work for ConAgra Foods, Inc. as part of a clean-up crew on ConAgra's vessel. During his tour of duty, Poore allegedly fell twenty feet from a ladder, which was part of ConAgra's vessel, and sustained injuries. Poore filed suit under §905(b) of the LHWCA, claiming his resultant injuries were a direct result of ConAgra's negligent maintenance and/or supervision of their vessel. Poore's alleged injury occurred on January 21, 2008 and his original Complaint was filed on January 20, 2011, one day shy of the three-year anniversary. ConAgra moved to dismiss Poore’s Complaint, arguing that federal subject matter jurisdiction did not exist, because the LHWCA did not apply to the facts of the case, and even if the LHWCA did apply to the facts of the case, the case would be barred by the statute of limitations. The court found that, although Poore's claim satisfied the "situs" factor test, because his injury occurred on navigable waters, the connection to admiralty ended there. The court found the Poore failed to present any evidence nor argue any connection to "maritime commerce." If there was a connection between cleaning a vessel and maritime commerce, such connection was minimal and insufficient to sway the factors in favor of admiralty jurisdiction. Additionally, there was no evidence that Poore's action of cleaning or the objects involved in the injury (a ladder and a platform) were unique to a maritime setting. Thus, the "nexus" factor of the Executive Jet test for admiralty jurisdiction was not satisfied. The court held that the case did not fall under admiralty jurisdiction, therefore the LHWCA did not apply and federal question jurisdiction also did not exist. As the LHWCA was not applicable to the case, Poore's cause of action was held to be a negligence action arising under Oklahoma state law. Although the court had federal subject matter jurisdiction over the claim pursuant diversity jurisdiction, Oklahoma's two-year statute of limitations for torts applied to bar the case. Accordingly, ConAgra’s motion to dismiss was granted and Poore’s case was dismissed with prejudice. (USDC NDOK, September 12, 2011) 2011 U.S. Dist. LEXIS 102650
Updater Note: Let’s just say this judge is definitely LHWCA-challenged. The intent of the 1972 amendments to the LHWCA was to add additional workers to coverage, not to exclude from coverage any employee who is injured in employment on actual navigable waters and who therefore would have been covered under the original act. Executive Jet was a case involving an aircraft going down on navigable waters and whether that was sufficient to confer federal admiralty jurisdiction over aviation tort claims.

SELF-SERVING AFFIDAVIT INSUFFICIENT FOR §905(B) NEGLIGENCE
JONES, ET AL. V. COASTAL CARGO COMPANY, INC., ET AL.

Toney Lee Jones alleged that he was injured when he fell from a rope ladder leading from a vessel, owned and operated by Icon Fantastic and Geden Lines, to a barge situated next to the vessel. At the time, Jones was working for Coastal Cargo Company, Inc., a stevedoring company, discharging steel products from the vessel to the shore and to two barges, which were moored riverside of the vessel. The Coastal Cargo stevedores brought with them two rope Jacob's ladders and rigged them to the port side of the vessel. Jones claimed that while going down the ship-side Jacobs ladder, the ladder came loose and he fell to the deck of the barge. After investigating the scene, the ship Jacob ladder was found to be fully secured to the handrail of the vessel and hanging in full length. Notably, the day before Jones’ alleged accident occurred, a U.S. Coast Guard Port State Control inspection team boarded the vessel being discharged and did not find any deficiencies. Jones filed a complaint under §905(b) of the LHWCA, claiming a member of the crew of the vessel had allegedly loosened a tie on the Jacob’s ladder, causing his fall and resulting injuries. The shipowner moved for summary judgment, arguing that the vessel and her crew did not have anything to do with the alleged incident and that Jones cannot carry his summary judgment burden to show otherwise. The court initially rejected Jones contention that the shipowner owed a duty to him to furnish a seaworthy vessel, noting that the duty to furnish a seaworthy vessel is not owed to longshore workers like Jones. As to Jones’ remaining arguments, which focused on his contention that the shipowner was negligent, the court found that Jones had failed to provide any evidentiary support therefore, aside from his own self-serving affidavit, which merely restated the same conclusory statements made in his Complaint. In sum, the court found that Jones had failed to introduce any evidence to support a conclusion that the ladder from which Jones allegedly fell was defective or improperly fastened to the vessel, or that the ladder belonged to the ship. Due to a lack of any evidence indicating that the most plausible cause of Jones's injuries was any defect in the ship's equipment, or actions of the ship's crew, the court granted the shipowner’s motion for summary judgment and dismissed Jones’ claim with prejudice. (USDC EDLA, September 1, 2011) 2011 U.S. Dist. LEXIS 98749

WAIVER OF SUBROGATION IS HELD TO BE ENFORCEABLE
RAYNES, ET AL. V. MCMORAN EXPLORATION COMPANY, ET AL.

Jamie Raynes was working on a platform, owned by McMoRan Exploration Company, when he was allegedly injured after his foot pierced a defective portion of the platform deck. Grasso Production Management, Inc. employed Raynes as its lead operator in charge of the platform. Raynes filed suit, pursuant to the Outer Continental Shelf Lands Act (OCSLA) against multiple parties. At all relevant times Grasso has been insured by Signal Mutual for benefits paid to employees, pursuant to the LHWCA and its extensions, for injuries and/or death that its employees suffer in the course of their employment. Grasso and Signal (“intervenors”) sought and were granted leave to file a complaint of intervention to recover benefits paid to Raynes from any tort award he may receive in judgment against, or from any settlement with, the defendants. Raynes moved for partial summary judgment, to dismiss the complaint of intervention filed by intervenors, arguing that the complaint of intervention must be dismissed because, pursuant to the 2004 Master Services Agreement ("MSA") between Grasso and McMoRan, as well as a specific endorsement in the relevant insurance policy, intervenors waived any rights to subrogation with respect to LHWCA benefits paid to Raynes for his injuries. Intervenors countered that such a waiver of subrogation was invalid based on the rationale of Fontenot v. Chevron U.S.A., Inc., 676 So.2d 577, because Grasso had been defending and indemnifying McMoRan at all relevant times. The court noted that the issue before the Louisiana Supreme Court in Fontenot was whether the waiver of subrogation in the policy was invalid vis-à-vis the Louisiana Oilfield Anti-Indemnity Act (LOAIA). Only when a waiver of subrogation might run afoul of LOAIA would Louisiana's general rule permitting waivers of subrogation not apply. Consequently, as the parties agreed that LOAIA is inapplicable in this case, the court concluded that intervenors had waived their right to recover workers' compensation benefits from third-party tortfeasors. The court granted Raynes's motion for partial summary judgment. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 107334

COURT REFUSED TO STRIKE JURY DEMAND DESPITE “IN ADMIRALTY” PLEADING
HUTCHINSON V. M/V MOL ENDURANCE, ET AL.

Samuel G. Hutchinson was working as a longshoreman at a Georgia port when, while untying the ship's mooring line from a dock, someone started to reel the line in. This tightened the line so fast that it allegedly struck and injured him. Invoking admiralty, diversity, in rem and in personam jurisdiction, plus §905(b) of the LHWCA and "Georgia law," Hutchinson brought this action against a vessel, its owner, and others for his personal injuries. Claiming loss of consortium, his wife joined him as co-plaintiff. The defendants moved to deny the Hutchinsons a trial by jury in this admiralty case, arguing that by pleading jury and non-jury claims in their "admiralty" complaint, the Hutchinsons had forfeited their jury trial rights. The Hutchinsons opposed and, for good measure, sought leave to amend their complaint. Defendants argued that it was too late for an amended complaint, in that the Hutchinsons had reaped the benefits of Admiralty jurisdiction rendering any amendment a futility. Defendants also insisted that by bringing a claim in rem against a vessel and thereby invoking the court's exclusive admiralty jurisdiction, and by taking advantage of the special in rem procedures available only in admiralty in order to obtain security for their claim, Hutchinson waived any right to a jury trial in this case. The court found that Hutchinson never clearly said that his non-LHWCA claims sounded in admiralty, and in fact he invoked diversity jurisdiction and demanded a jury trial to the extent supported by law. Still, since his complaint was somewhat unclear, out of an abundance of caution, Hutchinson was now moving to amend the complaint to plead more specific allegations establishing that his in personam claims asserted against the corporate defendants in the Complaint and in the Amended Complaint are based entirely on diversity of citizenship. The court held that all factors mitigate in favor of denying defendants' "forfeiture" motion and granting Hutchinson's amendment motion. The court also observed that a new defendant had recently been added and had yet to file an Answer. Additionally, an insurer had recently intervened. No FRCP 26 Conference has been held, and no Scheduling Order has been entered. As such, no material prejudice to the Court or any of the defendants had been shown to occur in allowing Hutchinson leave to amend. The court granted Hutchinson's motion to amend his complaint and denied defendants’ motion to strike his jury trial request. (USDC SDGA, September 21, 2011) 2011 U.S. Dist. LEXIS 107616

WAIVER OF SUBROGATION DOES NOT PRECLUDE LHWCA RECOVERY
FORET V. TRANSOCEAN OFFSHORE (USA), INC.

Rickey Foret was allegedly injured while performing repair work on a lifeboat owned by Transocean Offshore USA, Inc. At the time, Foret was employed by Alexander/Ryan Safety Systems, which Transocean contracted with to repair defects to the lifeboats aboard Transocean's drill Ship. In its Master Service Agreement, Transocean required Alexander/Ryan and its insurers to execute waivers of subrogation. After the accident, Alexander/Ryan, through its workers compensation carrier, paid various compensation and medical benefits to and on behalf of Foret and undertook the defense and indemnity of Foret's claims against Transocean, after Foret filed suit against Transocean. Alexander/Ryan’s insurer intervened in Foret's suit, asserting that it was entitled to reimbursement for indemnity and/or medical benefits made to or on behalf of Foret, out of any recovery by Foret in the underlying suit. Foret moved for summary judgment on the intervention, contending the insurer waived any right of subrogation it may have had against Transocean, as it did not properly plead its statutory intervention right under §933 of the LHWCA, and that therefore it had no right to intervene in Foret's recovery against Transocean. The insurer did not dispute its waiver of subrogation, but argued that subrogation is not its only interest in Foret's suit against Transocean, and that its statutory right to a set-off under the LHWCA remains (without necessity of pleading) to maintain its intervention. The court cited Petroleum Helicopters for the proposition that, despite a waiver of subrogation, the employer/carrier still possessed an interest in the third-party litigation, including a statutory right of set-off. The court held that the insurer could maintain an intervention action even in the face of a waiver of subrogation rights against Transocean. Foret’s motion for summary judgment was denied.

OFFICE OF ADMINISTRATIVE LAW JUDGES
RECENT SIGNIFICANT DECISIONS

Digest #235

The Office of Administrative Law Judges has posted its newest RECENT SIGNIFICANT DECISIONS - MONTHLY DIGEST #235. 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 . . .

COMMON LAW TORT CLAIMS ARE NOT COVERED BY ARBITRATION AGREEMENT
DOE V. PRINCESS CRUISE LINES, LTD.

Circuit Court Opinion

Jane Doe (pseudonym to protect confidentiality) worked for Princess Cruise Lines on one of its ships, and alleged that she was drugged by other employees, raped and physically injured while she was unconscious, and when she reported to officials of the cruise line what had happened to her they treated her with indifference and even hostility, failed to provide her with proper medical treatment on board, and interfered with her attempts to obtain medical treatment and counseling ashore. When Doe was finally allowed to go to the ship's infirmary, the ship's doctor concluded that Doe had a torn labia, which could have been a result of "forced entry." The doctor drew blood and tested Doe's urine for the presence of date rape drugs. The test was positive, although the ship doctor characterized the results as "'weak,"' which Doe asserts was attributable to the fact that she had been refused medical attention for more than 48 hours after the rape. Later one crew member crew member admitted to ship personnel that he had engaged in sex with Doe while she was unconscious, and that he did so without using a condom. Doe eventually sued Princess, asserting claims under the Jones Act, general maritime law, the Seaman’s Wage Act, and common law tort claims, including false imprisonment, intentional infliction of emotional distress, spoliation of evidence, invasion of privacy claim, and fraudulent misrepresentation. Princess filed a motion to compel arbitration of all ten counts of the complaint. The district court denied that motion in its entirety, reasoning that Doe's being drugged and raped at an after-hours party in a crewmember's stateroom does not relate to, arise out of, or have a connection with the crew agreement, the employment terms, or the services Doe performed for Princes, as it would have to in order to be within the scope of the arbitration agreement between the parties. The cruise line filed a motion for reconsideration, which the district court denied. Princess appealed, contending the district court erred in its denial of Princess’s motion to compel arbitration. Princess specifically argued that the district court should not have decided the arbitrability issue but instead should have sent that issue, along with the others, to an arbitrator for decision. The appellate court rejected this argument, since Princess itself asked the district court to whether the dispute was subject to arbitration, subjecting it to the invited error doctrine. The appellate court rejected Princess’s attempt to sweep all of Doe's claims into the scope of the arbitration provision, by focusing on the differences between life at sea and life on land, arguing that Doe was "continually in the service of the vessel and subject to the call of duty at any time" simply by virtue of being a seaman. The court found that Princess’s argument was too far reaching and would effectively erase the arbitration provision's limiting language. The appellate court went on to issue a 36-page ruling parsing which of a crew member’s claims against her employer must be arbitrated under the arbitration provision of the employment agreement and which the employee could bring suit on in federal court because those claims are not within the ambit of the arbitration agreement. The appellate court ruled that some of the claims were within the ambit of the arbitration provision, but others were not. The appellate court affirmed the district court's judgment denying Princess’s motion to compel arbitration on Counts VI, VII, VIII, IX, and X of Doe's complaint, but reserved the district court's judgment on Counts I, II, III, IV, and V of Doe's complaint and remanded for proceedings consistent with its opinion. (11th Cir, September 23, 2011) 2011 U.S. App. LEXIS 19502

11TH CIRCUIT REAFFIRMS LINDO AND COMPELS ARBITRATION
HENRIQUEZ V. NCL (BAHAMAS), LTD.

Circuit Court Opinion

Hilario Henriquez, a citizen and native of Nicaragua, was employed by NCL (Bahamas) Ltd., which operates Norwegian Cruise Lines, as a dishwasher aboard one of NCL’s cruise vessels. Henriquez signed an employment contract that mandated arbitration in Nicaragua under Bahamian law for any employment dispute between Henriquez and NCL. During his employment, Henriquez alleged that another crew member smashed a glass bottle on his head and stabbed him while they were aboard the cruise ship. Henriquez filed in a complaint in state court against NCL for the injuries he allegedly sustained, alleging Jones Act negligence, maintenance and cure, and unseaworthiness. NCL removed the action to federal and moved to compel arbitration. The district court ordered the parties to arbitrate their dispute. Henriquez appealed the order compelling arbitration of his complaint relying on Thomas to support his argument that public policy prohibits the enforcement of his arbitration agreement because an arbitrator in Nicaragua applying Bahamian law might not recognize his claim under the Jones Act. However, the appellate court noted that its recent decision in Lindo rejected this exact argument. The court concluded that Henriquez could not avail himself of the public policy defense at this stage. Henriquez also argued that he signed his employment contract under duress, which makes his arbitration agreement "null and void," but the appellate court held that argument was foreclosed by Bautista. The circuit court affirmed the order compelling arbitration. (11th Cir, September 6, 2011, UNPUBLISHED) 2011 U.S. App. LEXIS 18493

11TH CIRCUIT SUBSTITUTES ITS JUDGMENT FOR THE DAUBERT GATEKEEPER’S
ROSENFELD V. OCEANIA CRUISES, INC.

Circuit Court Opinion

While a passenger aboard a cruise ship, owned and operated by Oceania Cruises, Inc., Lydia Rosenfeld allegedly slipped and fell on a ceramic tile floor near the buffet bar of the vessel's café. Rosenfeld filed suit to recover damages for her injuries, claiming that Oceania negligently caused the accident by failing to provide an adequate flooring surface for the buffet area. To prove her case, Rosenfeld offered the expert of an Australian floor-safety specialist who performed various coefficient-of-friction tests to determine the slip resistance of the flooring surfaces. The expert found that, under wet conditions, the ceramic-tile surface surrounding the buffet area had an inadequately low coefficient of friction. Thus, he proposed to testify at trial that the flooring surface was not reasonably safe for a self-serve or bistro area, because it posed a high risk for those passing through to slip and fall. The trial court precluded the expert’s testimony, finding the Rosenfeld had not established that the proposed liability expert will provide helpful analysis to the court in understanding a matter of scientific, technical or specialized expertise. Instead, the liability expert intended to testify that the floor where Rosenfeld fell was unreasonably safe for its intended use and that such conclusions are properly left for the jury to decide. Following trial, the jury returned a verdict for Oceania. Rosenfeld appealed, arguing that the trial court erred by prohibiting her from introducing expert testimony that Oceania’s choice of flooring posed a higher danger of slip-and-fall accidents than other surface types. The appellate court held that the district court improperly excluded the testimony under Fed. R. Evid. 702. Rosenfeld’s principal theory of the case was that Oceania’s choice of ceramic tile flooring was unreasonable given its knowledge that the area was heavily trafficked and susceptible to spills. A qualified expert who used reliable testing methodology could testify as to the safety of Oceania’s choice of flooring. Because the jury was not allowed to consider evidence about whether the slip resistance of the flooring posed a danger to passengers aboard the ship, it could not have found in Rosenfeld’s favor with regard to her main negligence theory since matters of slip resistance and surface friction were beyond the understanding and experience of the average lay citizen. The error was not harmless because the jury was not able to consider whether the operator's choice of flooring caused the passenger's injuries. The appellate court reversed, ruling that vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the appropriate means of dealing with expert testimony. The court held that Rosenfeld was entitled to submit expert testimony regarding the adequacy of Oceania’s choice of flooring surface. (11th Cir, September 7, 2011) 2011 U.S. App. LEXIS 18550

CRUISE LINE’S DUTY TO WARN PASSENGERS IS NOT UNLIMITED
SAMUELS V. HOLLAND AMERICAN LINE-USA INC, ET AL.

Circuit Court Opinion

While their cruise ship was anchored, Gerald Samuels and his family visited a nearby beach. Samuels was allegedly seriously injured by turbulent wave action while on the Pacific Ocean side of the beach. Samuels sued Holland American, alleging that the cruise line breached its duty to warn him of the dangers associated with swimming there. Samuels’ two expert witnesses proffered that the extreme danger of entering the water on the Pacific Ocean side of the beach was commonly known throughout the cruise-line industry. The district court granted summary judgment in favor of Holland American, holding that the cruise line did not have a duty to warn Samuels because the conditions of the ocean were open and obvious and because there was no evidence of particularly hazardous conditions or of prior accidents at that location. Samuels appealed, arguing that the district court abused its discretion in excluding the testimony of his experts and in concluding that the hazardous conditions at Lover's Beach were open and obvious as a matter of law. The appellate court determined that it was not an abuse of discretion to strike the material portions of the experts' declarations because (1) one expert was unable to provide any materials from the cruise-line industry to support his statement, and he did not contact any other comparable cruise lines to inquire whether they warned passengers, and (2) the other expert failed to specify in her declaration what information she relied on in reaching her conclusions. The cruise line had no duty to warn the passenger about swimming at the location, because the cruise line had neither actual nor constructive notice of a dangerous condition on the Pacific Ocean side of the beach. The appellate court affirmed the judgment of the district court. (9th Cir, September 2, 2011) 2011 U.S. App. LEXIS 18304

STATE COMP ACT DOES NOT PROHIBIT JONES ACT CAUSE OF ACTION
DUNNING. V. STATE OF LOUISIANA

Appellate Court Opinion

Frank Dunning Jr. filed a petition for damages, seeking relief under the Jones Act and general maritime law for injuries he allegedly sustained as a deckhand and/or crew member for the State of Louisiana through the Department of Transportation & Development aboard a State vessel. Dunning alleged he was negligently injured in the course and scope of his employment when a cable snapped causing the closing gate of the ferry to strike him in the head and upper body, requiring medical treatment. In response, the State filed a peremptory exception raising the objection of no cause of action asserting that the Louisiana Workers' Compensation Act (LWCA), provided Dunning’s exclusive remedy. After a hearing, the trial court denied the State's objection of no cause of action, finding that Dunning, a State employee, was also a seaman and entitled to seek recovery under the Jones Act and general maritime law. The State appealed the trial court’s ruling, contending that Article XII, Section 10 of the Louisiana Constitution, limits suits against the State and argued that the waiver of sovereign immunity for claims for personal injury was a limited waiver subject to the LWCA. The appellate court noted that Louisiana Supreme Court had recently held, in Fulmer v. State, Dept, of Wildlife and Fisheries, [see August 2011 Longshore Update] that nothing in the plain language of the LWCA indicated the legislature's intent to limit the State's liability to suits under the Jones Act brought by a State employee. The court found that the LWCA specifically excludes from compensation coverage any employee who is covered by the Jones Act. As such, the appellate court held that claims against the State under the Jones Act brought by a State-employed seaman, are not prohibited under the LWCA or the Louisiana Constitution. The appellate writ was denied. (La. App. 1st Cir, September 20, 2011) 2011 La. App. LEXIS 1048

COURT REVERSES SUMMARY JUDGMENT FOR ADDITIONAL DISCOVERY
FLUERAS, ET AL. V. ROYAL CARIBBEAN CRUISES, LTD.

Appellate Court Opinion

Diana Flueras was employed by The Image Group, as a photographer on a Royal Caribbean Cruises, Ltd. vessel. Flueras visited the ship's infirmary complaining of back and abdominal pain. A preliminary assessment of her condition included a pregnancy test, which was positive. Following this diagnosis Flueras underwent an outpatient abortion procedure performed by a private physician in St. Thomas. Flueras developed post surgical complications, diagnosed as catastrophic intra-abdominal bleed following a dilation and curettage abortion. The ship’s medical staff summoned an ambulance immediately; however, she died at the shore side hospital from septic shock, a ruptured ectopic pregnancy and intra-abdominal bleeding. Flueras’s Estate filed an action for unseaworthiness, alleging that Royal’s vessel was unseaworthy because, among other allegations, the vessel was manned by a medical crew that was not properly trained, instructed or supervised. Subsequently, Royal moved for summary judgment, which the trial court granted on the ground the isolated negligent act of an individual crew member or employee does not render the ship unseaworthy. The Estate appealed, arguing that the entry of final summary judgment was erroneous as the conduct of the vessel's medical staff, including failure to properly diagnose Flueras's ectopic pregnancy, during the three days following her shoreside abortion procedure constituted a "congeries of negligent acts" that rendered Royal’s vessel unseaworthy. Royal argued that the trial court order is properly affirmed because the evidence that the ship’s doctor was a fit and competent physician remained unrebutted. Alternatively, an isolated act of medical negligence carried out by an otherwise competent physician was insufficient to render Royal’s vessel unseaworthy. The appellate court began its review by observing that it is well settled that only a "condition" renders a ship unseaworthy, and that isolated, personal negligent acts are categorically excluded as a basis for liability on the part of the shipowner. The court found that the evidence submitted by the Estate failed to raise a triable issue, as to the ship doctor’s licensure, experience, knowledge, and skill, that would have precluded summary judgment. The Estate’s expert affidavits were also found insufficient to put the medical crew's competence at issue. However, the court agreed with the Estate’s argument that the medical crew's failure to comply with established shipboard policies, if they existed, could potentially render the crew incompetent and produced a condition of unseaworthiness. The appellate court also noted that the Estate was not provided the benefit of discovery with respect to shipboard medical policies and procedures, despite the fact there was evidence they exist. Because the Estate had not had the benefit of discovery regarding the existence of shipboard policies and procedures and whether the crew complied with them, the appellate court concluded that the entry of summary judgment on this issue was premature. Because of the Estate’s inability to discover certain information regarding existing medical policies and procedures and the competency of Royal’s medical crew rendered the trial court's final summary judgment premature, and the "congeries of acts" alleged included the conduct of the vessel's medical crew and their compliance with existing medical policies and procedures, the court likewise held that final summary judgment on this theory was premature. The appellate court affirmed in part and reversed in part the trial court's entry of final summary judgment in favor Royal and remanded for further proceedings. (Fl. App. 3rd, September 28, 2011) 2011 Fla. App. LEXIS 15313

COCAINE-HEAD UNABLE TO MAKE HIS CASE BEFORE JUDGE FALLON (CONT.)
COLEMAN V. OMEGA PROTEIN, INC.

Joseph Coleman allegedly sustained injuries while he was employed as a seaman by Omega Protein, Inc. onboard its fishing vessel. Coleman allegedly passed out while returning from the restroom on the vessel, hitting his head and landing onto the floor. Coleman filed suit under the Jones Act and general maritime law, seeking to recover damages for alleged negligence of Omega and the alleged unseaworthiness of the vessel, as well as maintenance and cure. In its answer, Omega denied liability and asserted the affirmative defense of willful misconduct, alleging that Coleman’s injuries were caused by his use of illegal drugs. In a prior ruling [see April 2011 Longshore Update] the court granted Omega’s motion for partial summary judgment and dismissed Coleman’s Jones Act and unseaworthiness claims. The court found that Coleman had failed to put forward a theory of negligence or unseaworthiness. As a result, the only claim remaining cause of action is Coleman’s right to maintenance and cure. The court noted that, following his alleged accident, Coleman tested positive for cocaine/metabolite at 288 ng/ml indicating Coleman’s use of cocaine within approximately 24-48 hours prior to the accident. This level of benzoylecgonine, the primary metabolite of cocaine, in Coleman’s drug sample was nearly twice the level generally required for confirmation of cocaine use. Although Coleman denied taking cocaine prior to his accident and denied ever taking drugs, the court found that the credible evidence indicated otherwise. At trial, Coleman denied taking cocaine since the accident, yet at his deposition Coleman admitted taking cocaine approximately two to three weeks before the deposition. The court found that Coleman intentionally used cocaine 24-48 hours before the incident and that his fall and resulting injuries were caused by the use of cocaine. The court concluded that Coleman engaged in willful misconduct, and that this willful misconduct caused the injuries at issue. Accordingly, the court held that Coleman was not entitled to maintenance and cure and dismissed Coleman’s final cause of action with prejudice and costs. (USDC EDLA, September 9, 2011) 2011 U.S. Dist. LEXIS 102043

COURT DENIES JURY TRIAL ON SEVERED MAINTENANCE AND CURE CLAIM
FORREST V. OMEGA PROTEIN, INC. ET AL.

Ronald Forrest filed a Jones Act suit against his former employer, Omega Protein, Inc., and its fishing vessel, upon which he was allegedly injured while serving as a member of the crew. Forrest filed his suit in state court, where his maintenance and cure claim was joined with his negligence and unseaworthiness claims. Before the trial of his state case, Forrest, on his own motion, severed, and then non-suited, the maintenance and cure claim after the state court refused to permit him to amend his pleadings to add a claim for punitive damages. Immediately after taking the non-suit of the maintenance and cure claim, Forrest filed that claim in federal court. Forrest’s negligence and unseaworthiness claims were tried to a jury, who returned a verdict for Forrest in the amount of $768,788, but reduced that amount by thirty percent to reflect a finding that Forrest was guilty of contributory negligence. Forrest's final judgment was $538,152. Forrest also demanded a jury trial for his maintenance and cure claim. Omega moved for entry of an order striking Forrest's demand for a jury trial of his claim for maintenance and cure payments. To support his request for a jury trial on the maintenance and cure claim, Forrest contended that, because the maintenance and cure claim was at one time joined with the Jones Act claim, the maintenance and cure claim must be heard by a jury under the rationale of Fitzgerald. Alternatively, Forrest argued that, even if the court were to grant Omega's request to strike the request for jury trial, the court should empanel an advisory jury under FRCP 39(c). Omega argued that Fitzgerald does not permit a jury trial of Forrest's claim because his claim for maintenance and cure is not joined with a Jones Act claim, and in fact, Forrest had already had his jury trial on the Jones Act claim, and specifically non-suited out this current claim for separate trial. Omega also opposed the request for an advisory jury. The court initially noted that admiralty was the only conceivable basis for subject matter jurisdiction over Forrest's maintenance and cure claim and, while courts have remained faithful to Fitzgerald's focus on judicial economy, they have refused to extend the decision beyond those cases in which a maritime claim is joined with a Jones Act claim. The court went on to point out that Forrest himself chose to separate his maintenance and cure claim from his Jones Act claim. Forrest would have been entitled to a jury trial on his maintenance and cure claim had he submitted it concurrently with his Jones Act claim; however, he lost that right when he chose to non-suit that claim and file it separately in federal court. The court also held that an advisory jury would not help in the court’s task of making independent findings of fact for what is essentially a matter of first impression and would result in an inefficient use of judicial resources. The court granted Omega’s motion to strike Forrest’s demand for a jury trial. (USDC EDVA, September 16, 2011) 2011 U.S. Dist. LEXIS 105285

SEAMAN’S OWN TESTIMONY AND MCCORPEN DUE HIM IN
LETT V. OMEGA PROTEIN, INC., ET AL.

James Lett filed suit against his former employer, Omega Protein, Inc., and two of Omega's fishing vessels, alleging claims under the Jones Act and under the general maritime law for unseaworthiness and maintenance and cure. Lett alleged that, while he was working for Omega as a chief engineer, he was required to work on his hands and knees for five hours chipping paint, which caused injuries to his back, head, neck, and legs. Nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett also alleged that he aggravated these injuries later because he was required to lift hatch covers weighing an average of 85 pounds, which were too heavy. Again, nobody witnessed an accident, and Lett did not report an injury to Omega at the time. Lett complained that Omega was negligent for failing to properly supervise and train him in performing the chipping work and lifting the hatch covers,, failing to provide an adequate work-rest schedule, failing to safely operate the vessels, and operating the vessels with inadequate crews. Omega filed a motion for summary judgment arguing that it was not negligent, its vessels were seaworthy, and it does not owe Lett maintenance and cure. The court reviewed all the evidence, including Lett’s deposition testimony, where testified that maintaining the engine room, including chipping, was a part of his duties as the vessel's chief engineer. He testified that nobody directed him to do the chipping and that the needle gun was working properly. The court found that the testimony established that Omega was not negligent and vessel was not unseaworthy as alleged. With respect to Lett’s allegations of aggravation due to the hatch covers, the court noted the Lett’s own liability expert inspected the hatch covers, and found that it takes, at most, 45 pounds of pressure to lift them. Additionally, there was testimony that, at Omega's orientation, seamen are instructed to ask for assistance if they cannot lift something. The court concluded that Lett had failed to present any evidence that Omega was negligent for not replacing the allegedly heavier hatch covers, or that the alleged weight of the hatch covers on the vessel rendered the vessel unseaworthy. The court found that Lett was not entitled to maintenance and cure for his first alleged incident, as he continued to work of his own volition. The court also held that McCorpen barred recovery for maintenance and cure for the subsequent alleged incident, as Lett had concealed a pre-existing medical condition that was material to Omega’s decision to hire Lett and because Lett’s own testimony was that the second incident was an aggravation of the his initial injury. The court granted Omega’s Motion for Summary Judgment and dismissed all of Lett’s claims with prejudice. (USDC EDLA, September 19, 2011) 2011 U.S. Dist. LEXIS 105898

COURT HOLDS SEAMAN CAN HAVE TWO JONES ACT EMPLOYERS
DENNIS V. CALM C'S, INC., ET AL.

Victor Dennis was working for Calm C's Inc. as a captain assigned to a crew boat owned by Calm C's and contracted for by Weeks Marine, Inc. to assist in the performance of maintenance dredging. Dennis allegedly sustained injuries when Weeks’ dredge hit a pipeline owned by Contango Oil & Gas Company, causing an explosion. Dennis eventually sued Calm C’s, Weeks, the ACOE, and Contango, claiming negligence on the part of all parties. Contango was previous granted summary judgment, dismissing them from the lawsuit [see September 2011 Longshore Update]. Weeks moved for summary judgment on Dennis’s unseaworthiness, Jones Act, and maintenance and cure claims, contending it neither employed Dennis nor was Dennis a crew member of its dredge. As a result, Weeks argued that Dennis is precluded from asserting an unseaworthiness claim against Weeks for any alleged unseaworthy condition of its dredge. Further, Weeks contended that because Dennis was not an employee of Weeks or a crew member of its dredge, he is not entitled to maintain a Jones Act or maintenance and cure claim against Weeks. Dennis opposed Weeks’ motion, arguing that a seaman may have more than one Jones Act employer and that he was a seaman in the service of the dredge “flotilla” and a borrowed employee of Weeks. Dennis asserted that he was a crew member of the dredge flotilla, being that it was under the common control of Weeks and constituted a fleet of vessels to which Dennis owed allegiance, took orders, and furthered the mission of the fleet. After weighing the Ruiz factors, in light of Dennis’s “borrowed employee” allegation, the court concluded that the factors that supported a finding that Dennis was a borrowed servant outweighed those to the contrary. As a result, the court found that Weeks was an employer of Dennis, thus attaching potential Jones Act liability and responsibility for maintenance and cure. Notwithstanding its finding that Dennis may be a borrowed employee of Weeks, the court noted that did not ipso facto make him a crew member/employee of Weeks’ dredge. The court observed that Dennis was the Captain of his own vessel and the mere fact that he would take his meals, get coffee, and occasionally have some "downtime" on the dredge did not elevate him to crew member status. The court also rejected Dennis’s “flotilla” theory, noting that Weeks did not own the M/V Bayou Princess and that Dennis would not be able to satisfy the "single command" element of the test, because he testified that he was captain and in control of the M/V Bayou Princess during his deposition. As a result, the court held that the M/V Bayou Princess was not part of a "flotilla."Weeks’ motion for summary judgment was granted as to Dennis’s claim of unseaworthiness, but denied as to Dennis’s Jones Act and maintenance and cure claims. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99717

CONSIDER ENTIRE EMPLOYMENT HISTORY WHEN WEIGHING SEAMAN STATUS
BECNEL V. CHET MORRISON, INC., ET AL.

Kerry Becnel was employed by Coastal Catering, L.L.C. and, through a contract with Chet Morrison Contractors, Inc. (CMC), he was assigned to work as part of the cooking/galley staff. Becnel alleged that during his employment with Coastal, he was injured aboard a vessel while working on a project. Specifically, Becnel claimed that as he was walking from one barge to another, he fell several feet into the water below and sustained injuries. Becnel alleged that there was no safety device, railing, chain, rope, or other safety feature to prevent falling from the side of the vessel, and that this dangerous situation was well-known and within the privity of knowledge of the vessel owner. At the time of the incident, Becnel was assigned to work as a cook on a quarters barge that housed workers, who took part in removing debris from water. Becnel filed suit against various parties, including Coastal, CMC, and their insurers. CMC filed a motion for partial summary judgment as to the seaman status of Becnel and indemnity and defense against Coastal. Coastal filed a cross-motion for summary judgment. The trial court found that Becnel was a Jones Act seaman and that Coastal was required to defend and indemnify CMC against Becnel’s claim. Further, the trial court concluded that the provisions of the LHWCA were inapplicable and denied Coastal's cross-motion for partial summary judgment on seaman status, indemnity and defense. Coastal and its insurer appealed, arguing that the trial court erred in granting the motion for summary judgment and cross-motion for summary judgment filed by CMC on the issues of Jones Act seaman status, indemnity, and defense against Coastal. On appeal, Coastal argued that Becnel is not a seaman entitled to damages under the Jones Act because he did not have an employment connection to a particular vessel and/or fleet of vessels under common ownership. In support of its argument, Coastal avered that employment records and an affidavit executed by the president of Coastal established that Becnel was randomly assigned to work for various customers of Coastal. While Coastal concede that some of Becnel's assignments were to vessels, they also maintain that most of Becnel's assignments were to fixed platforms. No factual dispute existed as to whether Becnel's duties contributed to the function of the vessel or accomplishment of its mission, so the appellate court initially noted that Becnel satisfied the first prong of the Chandris test for seaman status. Becnel’s employment records showed that he had been with Coastal for a total of one hundred fifty-three (153) days at seven (7) different job sites, and he worked with five (5) of Coastal's customers. The appellate court noted that during his deposition, Becnel could not recall whether all of the work he performed for Coastal took place on some type of vessel or barge. The appellate court concluded that the record revealed evidence from which reasonable persons might draw conflicting inferences as to whether Becnel had an employment connection to an identifiable fleet of vessels. Therefore, the court found that a genuine issue of material fact existed as to this issue. The appellate court also noted that, while some of the evidence of Becnel’s work assignments was conflicting, some evidence showed the Becnel was assigned to CMC vessels 35 days of his 153-day employment with Coastal; or twenty-three percent (23%) of his employment time. As to the conflicting evidence, the court found that decision of these issues is ultimately determinative of the seaman status inquiry, and such determination required the weighing of evidence and the credibility of witnesses, which are improper considerations on a motion for summary judgment. The appellate court held that genuine issues of material fact existed as to the amount of time that Becnel spent in service of a vessel in navigation. Because genuine issues of material fact existed as to Becnel's seaman status, the appellate court found that this conclusion precludes further consideration of Coastal’s additional assignments of error. The trial court's judgment was reversed and the case was remanded the matter for further proceedings. (La. App. 4th Cir, August 31, 2011) 2011 La. App. LEXIS 1014

IT’S NOT FAIR JUDGE, THE JURY RULED AGAINST ME
WILLIAMS V. C & E BOAT RENTALS, LLC, ET AL

Michael D Williams filed a Jones Act claim for negligence and unseaworthiness arising from injuries he allegedly sustained while working aboard a C&E Boat Rentals, LLC vessel. Williams claimed he incurred respiratory injuries while cleaning the vessel's lube oil tanks, due to lack of ventilation in the tanks and C&E's failure to provide him with proper respiratory equipment. A jury trial was conducted which rendered a judgment in favor of C&E. Following the unfavorable jury verdict, Williams moved for a new trial, asserting that defense counsel's trial tactics improperly influenced the jury, by commenting to the jury that Williams’ attorney orchestrated the case, and that the jury verdict was clearly inconsistent with the evidence. C&E opposed Williams’ motion, contending its counsel's comments to the jury during closing arguments were neither improper, prejudicial, nor unsupported by evidence; and the evidence at trial overwhelmingly supported the jury's verdict. The court found that Williams had failed to demonstrate that C&E's counsel's commentary to the jury constituted a substantial injustice that would warrant the granting of a new trial. The court observed that the central issue raised at trial was not whether an accident took place, but whether C&E was liable under the Jones Act and general maritime law for injuries sustained by Williams. The court concluded that the jury's verdict was neither against the weight of evidence nor based on unfair trial proceedings. Williams’ motion for a new trial was denied. (USDC EDLA, September 2, 2011) 2011 U.S. Dist. LEXIS 99682

ANOTHER MASKING PHENOMENON CLAIM -MY KNEE PAIN HID MY BACK PAIN
DUPLANTIER V. BISSO MARINE CO., INC., ET AL.

Daniel Joseph Duplantier, while working as a welder for Bisso Marine Co. Inc. aboard its dive vessel, allegedly slipped and fell on the vessel's deck. Duplantier sued under the general maritime law, seeking to have surgery on his lower back at Bisso’s expense. Bisso moved for partial summary judgment seeking a determination that it does not owe maintenance and cure to Duplantier for his alleged back injury, maintaining that Duplantier cannot meet his burden of proving that his alleged back injury occurred, was aggravated, or manifested itself, while he worked aboard Bisso’s dive vessel. Specifically, Bisso maintained that, after his alleged "slip and fall," Duplantier did not complain about any pain in his back for six months, and made no complaints of back pain to his first three doctors, but had complained only of pain to his left knee. Finally, Bisso presented the results of an independent medical examination yielding a finding that Duplantier’s slip and fall did not cause any of his alleged back problems. In response, Duplantier maintained that the question of the cause of his herniated lumbar disc presented a classic issue of material fact to be determined by a jury. The court agreed that genuine issues of material fact existed, precluding summary judgment regarding the cause of Duplantier’s back injury and the need for surgery to remedy the injury. In short, Duplantier and Bisso presented competing evidence and, with its motion, Bisso was essentially asking the court to weigh the credibility of that evidence. The court denied Bisso’s motion for partial summary judgment. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107519

YOU’VE GOT TO DO MORE THAN SIMPLY OPPOSE THE MOTION
RICHARDS V. TRANSOCEAN INTERNATIONAL, INC., ET AL.

Henry Richards was employed by Oceanlife Limited, LLC, and was assigned to an ART Catering crew aboard an offshore rig owned and operated by Transocean Offshore Deepwater Drilling, Inc. ART Catering had contracted with Transocean to provide catering, housekeeping, pest control, and related services on Transocean’s rig. Richards claimed he was injured while taking trash to a trash compactor and allegedly slipped on the floor and injured his back by twisting to keep from falling onto the deck. Richards sued Transocean for Transocean's negligence and the unseaworthiness of the semi-submersible drilling vessel. Transocean moved for partial summary judgment, requesting dismissal of Richards’ Jones Act claim against it on the ground that Richards was not Transocean's borrowed employee. The court weighed the factors involving a finding of “borrowed servant” status and found that the balance of the factors, including the most fundamental factor in the analysis — the level of control and supervision exercised over Richards by ART Catering while he was performing his duties on Transocean's rig — supported a finding that Transocean did not exercise the requisite control over Richards sufficient to support a Jones Act claim based on borrowed employee status. The court also noted that Richards failed to offer any evidence in support of his claim that Transocean was his borrowed employer. As the non-moving party, the court noted that Richards must do more than simply deny the allegations raised by Transocean in order to defeat a supported motion for summary judgment. Transocean’s motion for partial summary judgment on the borrowed servant issue was granted and Richards’ Jones Act claim against Transocean was dismissed. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106804

DEFENSE JURY VERDICT NOT AGAINST GREAT WEIGHT OF THE EVIDENCE
LAFRANCE V. GRAND RIVER NAVIGATION COMPANY, INC.

Marc LaFrance was employed as a cook aboard Grand River Navigation Company, Inc.’s vessel, when he allegedly sustained a back injury while lowering a five-gallon container to the floor. The container was stored inside of a dispensing cooler and, according to LaFrance, while carrying the filled container to the cooler, the vessel rolled in the water and the cooler door swung shut. LaFrance filed suit, asserting that Grand River was negligent under the Jones Act and that the vessel was unseaworthy under general maritime law. LaFrance also sought maintenance and cure. At trial, LaFrance argued that Grand River‘s failure to provide a means to secure the cooler door in an open position was negligent and the failure of the cooler door to remain in an open position constituted an unseaworthy condition. The jury returned a verdict in favor of Grand River, finding no negligence and no unseaworthiness. The court entered a judgment in accordance with the jury’s verdict and LaFrance timely moved for a new trial, asserting that the great weight of the evidence presented at trial established that the vessel was unseaworthy and Grand River was negligent. The court found that the verdict rendered by the jury was not against the weight of the evidence and could have been reasonably reached because disputed issues of fact existed on which reasonable minds could differ. The mere fact that LaFrance failed to persuade the jury with the evidence that he presented at trial did not establish that the verdict was against the clear weight of the evidence. LaFrance’s motion for a new trial was denied. (USDC EDLA, September 20, 2011) 2011 U.S. Dist. LEXIS 106866

SUMMARY JUDGMENT DENIED ON URINATION-RELATED INJURY
WALDSACHS V. INLAND MARINE SERVICE, INC., ET AL.

William Waldsachs was an employee of Inland Marine Service Inc. After a thirty-day term of service on one of Inland Marine's barges, Waldsachs disembarked several hundred miles upriver from his home. From there, Waldsachs boarded a van, owned by C/C Transport, Inc., and which was to drive him home. On the trip home, Waldsachs requested the driver to pull over so that he could urinate. Waldsachs exited the van and proceeded to walk into an open field that abutted the roadway to do his business. While crossing the field, Waldsachs alleges the he stepped into a hole that had been obstructed by debris and fractured his left tibia and fibula. Unable to stand, Waldsachs crawled back to the van and was driven for treatment at a nearby hospital. The injury later required surgery. Waldsachs filed an action under the Jones Act against Inland Marine and common law negligence against C/C, alleging that Inland Marine and its agent, C/C, were negligent in transporting him. C/C moved for summary judgment on two different bases: (1) it did not owe Waldsachs a duty once he exited the vehicle and his injury was unforeseeable and (2) its actions were not a substantial factor in bringing about the harm which led to Waldsachs's injury. The court initially acknowledged that a common carrier's duty generally ends once a passenger safely alights. In this case, Waldsachs safely alighted from the van. At the same time, however, the driver dropped Waldsachs off in a potentially unsafe environment prior to arrival at his destination, such that Waldsachs could not continue safely on his journey without re-boarding the van. Although the heightened common carrier standard of care may have ended after Waldsachs safely alighted from the van, the court found that C/C still had a duty to exercise ordinary care to prevent foreseeable injury. Thus, under the circumstances, C/C’s duty did not end after Waldsachs’s feet hit the ground. The court also found that C/C should have recognized that its driver’s actions involved a risk of harm to Waldsachs. He knew that Waldsachs had to exit the vehicle to urinate. It was daylight and there was nothing blocking the view of other vehicles. It is common knowledge that human beings seek privacy while using the bathroom. In light of this required knowledge, the driver should have recognized that pulling off where he did for Waldsachs to urinate posed a foreseeable risk that Waldsachs. The court decline to rule on the causation in fact issue, believing it was best left to the jury. C/C’s motion for summary judgment was denied. (USDC WDKY, August 26, 2011) 2011 U.S. Dist. LEXIS 96853

RELEASE IS GOOD, BUT ONLY FOR THE INJURY IT PERTAINED TO
BAKER V. HELIX ENERGY SOLUTIONS GROUP, INC.

Larry Ray Baker, Jr. allegedly sustained injuries while employed by Helix Energy Solutions Group, Inc. as a seaman aboard its mobile offshore drilling unit. Baker claimed he suffered shoulder injuries while attached to the vessel's man-riding system by a tugger cable. Baker received treatment and physical therapy and was eventually pronounced at maximum medical improvement. A claims representative of Helix was present at the time and presented Baker with a General Release and Indemnity Agreement in exchange for $4,800.00. That meeting was recorded and transcribed. Thereafter, Baker returned to work for Helix and was assigned lighter duty assisting a welder. Shortly after returning to work, Baker claimed that he re-injured his shoulder after lifting a 25-35 lb. piece of metal grating. Baker was ordered off the rig after reporting the alleged second incident to a medic. Baker eventually underwent arthroscopic surgery. After Baker filed suit, claiming that his post-surgical physical restrictions had permanently impaired his earning capacity, Helix moved for summary judgment based upon the Release Baker had execute following his initial injury, contending the Release is valid and in signing the Release, Baker knowingly and voluntarily released all of his claims against Helix. Baker argued that there existed issues of material fact regarding the validity of the Release which needed to be determined by a jury, contending he was coerced into signing the Release; although he admitted he did sign the release papers in exchange for $4,800. Considering all of the facts and taking the into account the entire factual scenario, the court found that Baker received and signed the Release with full knowledge of his rights and a full appreciation of the consequences of executing the Release as it related to his initial injury. However, the court noted that the Release does not protect Helix from liability for a future injury of the same part of the body caused by a subsequent event. Thus, the release was held not to preclude claims arising out of the alleged subsequent injury to Baker’s left shoulder during a lifting incident, separate and apart from his initial alleged incident. The court granted Helix’s motion in part, to the extent that Baker’s claims arising out his initial shoulder injury were dismissed, and denied the motion to the extent that all claims arising out of the subsequent incident, causing or aggravating a shoulder injury remain in effect. (USDC EDLA, September 12, 2011) 2011 U.S. Dist. LEXIS 102255

UNSEAWORTHINESS CLAIM OF SEAMAN WHO WAS A PASSENGER IS DISMISSED
IN RE: EDWARD E. GILLEN CO.

Edward Grenier claimed he sustained an injury while on board a boat owned by Case Foundation Company and operated by employees of Edward E Gillen Co. On the date of his alleged incident, Grenier was employed by Case as a crane operator working on board a mobile crane barge. Grenier claimed he was injured as he was tossed about during inclement weather while riding aboard Case’s vessel, which was transporting him from shore to the crane barge at the start of his work day. Grenier's claim was that the crew boat was unseaworthy and that such unseaworthiness was a proximate cause of Grenier's injuries, notwithstanding the fact that Grenier was merely a passenger on the boat. Case and the vessel operator moved for partial summary judgment on Grenier's claim for vessel unseaworthiness, arguing summary judgment on Grenier's claim for vessel unseaworthiness is appropriate because, at the time of his alleged injury, Grenier was not a crew member of the crew boat, and only crew members may maintain an action for unseaworthiness against the owner of a vessel or the vessel's owner pro hac vice. Grenier attempted to argue that his status as a seaman under the Jones Act entitles him to maintain an unseaworthiness claim, regardless of whether he was a crew member of the vessel on which he was injured. The court initially noted that the question of whether an individual must be a crew member of the vessel on which he suffered his injury to bring an unseaworthiness claim was unsettled in the Seventh Circuit. Nevertheless, the court ultimately agreed with the reasoning of those courts that have held that a ship owner's duty of seaworthiness extends only to crew members of that vessel. As such, since Grenier was merely a passenger and not a crew member, he could not maintain a claim of unseaworthiness against either Case or Gillen Co. The defendants’ motion for partial summary judgment was granted. (USDC EDWI, September 7, 2011) 2011 U.S. Dist. LEXIS 101511

COURT REFUSES TO ALLOW DISCOVERY OF PRIOR CLAIMS PRACTICES
GONZALEZ V. MAERSK LINE, LIMITED, ET. AL.

Ruben Gonzalez filed his seaman’s suit against Maersk Line, Limited, for negligence under the Jones Act and the general maritime law, alleging he suffered an accident aboard Maersk's ship while working as a member of the crew of said vessel. In addition to his negligence and unseaworthiness claims, Gonzalez alleged that Maersk had willfully and arbitrarily failed to pay his maintenance and cure, and that Maersk was, therefore, liable for punitive damages. After the initial scheduling conference, Gonzalez filed a Motion to Compel requesting the court to order Maersk to conduct discovery on the issue of punitive damages. Specifically, Gonzalez sought to discover (a) information concerning claims and lawsuits filed during the past three years by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and (b) information concerning any corporate investigation(s) into their employees' practices in failing to pay maintenance and cure to their seaman employees in the past three years. Gonzalez contended that this information was relevant to his claim of punitive damages. Maersk opposed Gonzalez’s motion, arguing the request was overly broad and irrelevant. The court began its analysis by observing that Gonzalez grounded his request for punitive damages on Maersk's refusal and failure to pay for his maintenance and cure expenses. As pointed out by Maersk, Gonzalez did not allege a willful scheme on the part of Maersk to deprive all seamen of their right to maintenance and cure. Consequently, the court agreed with Maersk that Gonzalez’s discovery request was not in line with the allegations in his complaint. Here, Gonzalez sought to discover information pertaining to claims and lawsuits filed against Maersk by other fellow seaman employees as a result of Maersk's specific failure or delay to pay maintenance and cure benefits to the injured seaman employees; and information concerning any internal investigation(s) as to Maersk's corporate practices in failing to pay maintenance and cure to their seaman employees. The court opined that this information would shed no light on the particular set of circumstances Gonzalez claimed to be a victim of. The court agreed with Maersk that information sought was irrelevant to Gonzalez's claim of punitive damages, and denied Gonzalez’s motion to compel. (USDC DPR, September 2, 2011) 2011 U.S. Dist. LEXIS 99647
Updater Note: While this decision is simply a discovery ruling in a district court case, I still thought it was worthy of noting it in the Update. More and more plaintiff attorneys are trying similar discovery tactics, in an effort to inflame juries and increase their chances of a punitive damages award. However, as the court here pointed out, each case should stand on its own merits. Congratulations to Mother Maersk on this favorable ruling.

MAGISTRATE REFUSES TO SANCTION LYING SEAMAN
HUNT V. MARQUETTE TRANSPORTATION COMPANY GULF-INLAND, LLC

Thomas Hunt was employed as a mate/deckhand by Marquette Transportation Company Gulf-Inland, LLC on one of its tugs. While attempting to throw nylon mooring line, Hunt allegedly suffered permanent and disabling injuries to his lower back. Hunt filed a seaman’s lawsuit claiming that his accident resulted from the negligence and unseaworthiness of Marquette’s vessel. He further claims that Marquette wrongfully, willfully, arbitrarily, and capriciously failed to authorize medical care necessitated by his injuries. Marquette responded by filing a Motion for Adverse Inference seeking sanctions in the form of a presumption of adverse inference against Hunt for alleged perjury and intentional spoliation of evidence. Marquette contended that Hunt waited three weeks before reporting his injury, thereby preventing them from promptly investigating the matter and securing a timely drug screening. Once Marquette was able to secure a drug test, it came back positive for marijuana. Hunt’s criminal and medical records further revealed that he had a history of drug use prior to the accident and had lied about his drug history during his deposition. Based on his alleged perjury and history of drug use before and after the accident, Marquette believes that the delayed drug test would have been positive for marijuana and other drugs, which were the true cause of Hunt’s injury. Hunt opposed the motion. The court found that Marquette failed to show that it communicated an obligation to Hunt, at any point, that he had a duty to immediately report on the job injuries for purposes of securing a timely drug screen. The evidence showed that the only agreement clearly communicated to Hunt was his understanding of Marquette's zero tolerance policy on drug use. The existence of a zero tolerance policy alone does not suggest that Hunt had a duty to immediately report his injury, absent any explicit language within the company policy stating otherwise. The court held the facts were insufficient to support a finding that Hunt had a duty to preserve evidence by immediately reporting his accident so that Marquette could choose to test him to determine whether drugs played a role in the accident. Therefore, an adverse inference sanction based on spoliation of evidence was inappropriate. Marquette further argued that Hunt’s perjury alone was enough to warrant sanctions and an adverse inference is one of the least severe sanctions a court may impose. The court disagreed with Marquette’s assessment of the sanctions, noting an adverse inference is not one of the least severe sanctions a court may impose. Moreover, the court concluded that incidents of Hunt’s drug use well before the date of the accident, and three weeks after the accident, were too attenuated to draw an inference that he was under the influence of marijuana at the actual time of the accident. The court ruled that Hunts alleged perjury did not persuade it that he had used marijuana on or immediately preceding the injury such that he spoliated evidence in the form of a concealed positive drug screen, warranting an adverse inference sanction. Marquette's motion was denied. (USDC EDLA, August 5, 2011) 2011 U.S. Dist. LEXIS 100401

JURY POURS HIM OUT AND COURT LEAVES IT THAT WAY
LEE V. OMEGA PROTEIN CORP. ET AL.

Willie G Lee sued his employer, Omega Protein Corp., for injuries he allegedly sustained while working on board Omega’s fishing vessel, trying to remove fish from a net. Lee claimed he fell from the boat into water and hurt his back and neck and asserted numerous negligence claims under the Jones Act. Lee tried his case to a jury and lost. The court entered a judgment in favor of Omega. Lee timely moved to alter or amend the judgment, or in the alternative, for a new trial, asserting that the court erred in excluding a jury instruction on Omega’s cure obligation and the question of cure from the jury's verdict form. The court denied Lee’s motion, holding that Lee failed to meet the high standard that FRCP 59 imposes for altering or amending a judgment. The court observed that it heard the testimony at trial and determined that neither party submitted evidence on the issue of maximum medical cure to justify a cure instruction to the jury, or the inclusion of the cure issue on the jury verdict form. The physician’s testimony as to potential treatment options for Lee did not establish whether Lee’s condition was likely to improve or not. The court also found that Lee failed to show that he had no obligation to make a maintenance and cure demand prior to trial, which he had not done. (USDC EDLA, September 21, 2011) 2011 U.S. Dist. LEXIS 107331

YOU CAN’T GET A DEFAULT JUDGMENT IF YOU HAVE NO CAUSE OF ACTION
WILLIAMS V. WILSON, ET AL.

Byron Williams sued Kyle Wilson, who was allegedly the operator of a Boston Whaler owned and operated by Swift Spill Separator, LLC. Williams was employed by FJN Contractors, L.L.C. at the time of the incident. It was as a result of the alleged negligence of Swift Spill and the unseaworthiness of the Boston Whaler that Williams maintains he was injured. After Wilson failed to Answer Williams’ Complaint, Williams moved for a default judgment. Swift Spill opposed the motion based on the basis that under the fellow servant doctrine, as recognized under the maritime law, no claim lies against Wilson personally. All of his alleged negligence would be imputed to his employer. Williams responded that Swift Spill had no standing to oppose his motion for a default judgment. The court reviewed the pleadings, memoranda and the relevant law and determined it was unclear what the relationship was between Williams, FJN, his alleged Jones Act employer, and Swift Spill, the owner of the vessel and the employer of Wilson. Additionally, the court found that case law presented by Williams, for the proposition that a cause of action lies against Wilson, was inapplicable and without merit. Therefore, the court found it would be inappropriate to enter a default judgment against an individual against whom it is unclear whether a cause of action lies. Williams’ motion for entry of a default judgment was denied. (USDC EDLA September 14, 2011) 2011 U.S. Dist. LEXIS 103752

PUTATIVE SEAMAN CHALLENGES CITY’S RECORDS OF HIS TIME “AT SEA”
COFFEY V. THE CITY OF NEW YORK

Thomas Coffey brought suit under the Jones Act, against the City of New York, alleging that he was injured while employed by the New York City Department of Transportation as a shore-side deck hand. Specifically, Coffey claimed he was standing on a crew gangway, which was in the process of being removed from the boat, when the ferry surged from the dock, the gangway allegedly slid off the boat rail and fell onto the pier, causing him serious injury. Coffey maintained that his accident was caused by the City's negligence coupled with the unseaworthiness of the vessel and its crew. Coffey also asserted causes of action for loss of consortium and alleged violations of various Coast Guard safety statutes. In moving for dismissal of the complaint and for summary judgment, the City maintained that Coffey was not entitled to the protections of the Jones Act because at the time of the incident, he was not a covered seaman, in that he did not have a connection to a vessel in navigation that was substantial in duration and nature. In support of this proposition, the City relied on time sheets showing that Coffey spent 90.3% of his time shore-side, or less than 10% of his time on a ferry. In opposition to the City's motion and in support of his cross motion for partial summary judgment on the issue of liability, Coffey maintains that he is entitled to seaman status since the City's records should show that he was at sea 35%-50% of the time, rather than the 10% claimed by the City. In support, Coffey submitted the affidavit of one of the ferry captains, claiming that stand-by deck hands like Coffey could be assigned temporarily as a deck hand on a ferry boat without any record being kept of his time at sea. The affidavit further attested that any one or a combination of the City's records would not accurately reflect the true amount of time that a stand-by deck hand had spent at sea. The court concluded that the evidence submitted by the parties in support of their respective summary judgment motions clearly raised triable issues of fact. The court held that neither party was entitled to judgment as a matter of law. The City’s motion and Coffey’s cross motion were denied. (NY Sup. Ct, July 27, 2011, UNPUBLISHED) 2011 NY Slip Op 51716U; 2011 N.Y. Misc. LEXIS 4487

SHE HAD TO STEP ON A MILK CRATE BECAUSE YOU DIDN’T GET HER A LADDER
MOORE V. UNITED STATES OF AMERICA

Donna Moore allegedly sustained injuries to her shoulder and cervical spine when employed as a steward aboard a government owned freighter. Moore filed suit against the United States of America, asserting claims for unseaworthiness, negligence under the Jones Act, and unreasonable failure to provide prompt and adequate maintenance and cure. Moore's alleged accident occurred when she was trying to open and latch one of the freezer units in order to determine its contents. In order to extend her reach sufficiently to latch the freezer lid, Moore stood atop an upside-down plastic milk crate. While Moore was attempting to latch the lid, the milk crate on which she was standing slipped on the hard tile deck, causing her to fall into the freezer and the heavy freezer lid to fall and strike her in the back of the neck and shoulder. Following a bench trial, the court found that the record was replete with evidence that the reefer space was not fit for its intended use. The hard tile surface did not meet the maritime industry's standards or the Tile Institute's standards for skid resistance. Although the Unities States contended that even if the reefer room was unseaworthy, the unseaworthiness was not the proximate cause of Moore’s injuries, the court found that no step-ladders were provided for the reefer space despite requests and concluded that the reefer space was not fit for its intended use and was therefore unseaworthy. For the same reasons the court found the reefer room unseaworthy, the court also found that the United States breached its duty to provide Moore with a safe place to work which easily surpassed this slight causation standard to prove negligence. The court found that no comparative fault applied because Moore was not negligent. The court awarded Moore damages in the amount of $505,603.27 plus interest, which included additional maintenance and court. (USDC NDCA, September 22, 2011) 2011 U.S. Dist. LEXIS 108230

MOTION TO COMPEL ARBITRATION IS GRANTED
KOTE V. PRINCESS CRUISE LINES, LTD.

Anil Vinayak Kote was working for Princess Cruise Lines, Ltd’s aboard one of its cruise ships as a junior waiter, when he allegedly sustained a back injury while lifting a box with another employee. Kote, a citizen of India, filed suit alleging claims for Jones Act negligence and maintenance and cure. Prior to beginning his employment with Princess, Kote signed a contract which contained an arbitration provision. The terms and conditions provided that any disputes arising out of Kote's employment would be subject to binding arbitration, held in Bermuda and subject to Bermuda law. Princess moved to compel arbitration in accordance with the terms of Kote’s employment agreement. Kote opposed Princess’s motion on several grounds, including unconscionability, the agreement was the product of unequal bargaining power, and because Princess’s stipulation to waive application of Bermuda law was a unilateral contract modification and cannot remedy the employment contract's deficiencies. The court considered the strong presumption in favor of arbitration clause enforcement, the lack of specific exclusion by Congress of Jones Act claims from arbitration, Kote's lack of applicable Article II defenses to arbitration enforcement, and the court's prior application of Thomas and Bautista to circumstances similar to the case at hand, and found that it was obligated to compel the dispute to arbitration pursuant to the Convention Act. The court granted Princess’s motion to compel. (USDC SDFL, September 23, 2011) 2011 U.S. Dist. LEXIS 108717

Quotes of the Month . . . "There are some that only employ words for the purpose of disguising their thoughts." Voltaire

"A nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people." John F. Kennedy

“I count him braver who overcomes his desires than him who conquers his enemies; for the hardest victory is over self.” - - Aristotle

Tom Langan
Corporate Risk Manager
Weeks Marine, Inc.

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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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