The oil rig is situated off the coast of Louisana

Authorities were searching for missing workers early Wednesday who evacuated on a life raft after an explosion at an oil drilling platform off the coast of Louisiana.

The United States Coast Guard sent four helicopters and saw the fire out of contril on the floater. There are some workers that are unaccounted for and ther is an active search.

The law firm of Gordon, Elias & Seely, L.L.P. is quite versed in successfully suing Transocean. Just this year alone, they represented the family of one of the most deadly accidents that ever occurred in Transocean's history. If you or a family member has benn affected by this tragedy, contact their lawyers directly at 800-773-6770, 713-668-9999, or 800-491-3377. Their lawyers are licensed in Texas and their offices are situated in Houston where Transocean is situated. Additionally, Steve Gordon is licensed in Louisiana.

CORPUS CHRISTI — A man’s leg was severed in an accident on an offshore oil rig supply vessel Friday, officials said.

Coast Guard Air Station Corpus Christi sent a helicopter rescue crew and a patrol boat to the Sandra Sino, roughly 27 miles offshore about 3 p.m., according to a news release.

The man was working alongside the oil rig when his leg got tangled in a mooring line, officials said.

The Coast Guard took the man to Christus Spohn Hospital Memorial where he was listed in critical but stable condition, the release said.

The Jones Act covers this type of injury. For more information, call Gordon, Elias & Seely, L.L.P. at 800-773-6770.

Background:
Plaintiff, Orlando Ramirez, brought this action against employer and vessel owner American Pollution Control Corporation, AMPOL, pursuant to the Jones Act.

AMPOL hired Ramirez to work as a deckhand aboard the Recovery and shortly after, Ramirez hurt his neck, back, shoulder, elbow, and wrist when he slipped on a wet rubber glove lying on the floor of the ship's galley.

Evidence introduced at trial showed that the crew had just finished unloading groceries in the galley resulting in a floor cluttered with cardboard boxes. Several minutes before he fell, Ramirez had removed a wet rubber glove and thrown it in the trash.

The glove missed the trash and ended up on the floor; the Captain noticed the glove on the floor but failed to notify Ramirez. Ramirez opened the fridge and then tried to walk through the cluttered galley with his hands full.

Ramirez then slipped on his wet glove and Ramirez fell, hurting himself. Ramirez admitted to a significant history of neck and back injuries that he had omitted from the AMPOL job application.

The district court found AMPOL 60% liable for his injury, based on the Captain's failure to pick the glove up. Ramirez was found contributorily negligent for tossing his glove towards the trash can, attempting to step through the boxes with his hands full and misrepresenting his past injuries on the job application.

In determining damages, the District Court credited AMPOL's expert testimony that Ramire continuing neck and shoulder pain were caused by the natural aging process. The court calculated lost wages at $3,000, and therefore upon apportionment, awarded Ramirez with $1,800.

Ramirez appealed contesting the apportionment of fault arguing that AMPOL was solely responsible for the condition which caused the accident and also argued there was no casual link between his undisclosed medical history and injury suffered aboard the Recovery.

Issue:
Did the District Court err in finding Ramirez contributory negligent and for finding a link between his undisclosed medical history and injury he suffered aboard the Recovery?

Held:
Ramirez contended that AMPOL was solely responsible for creating the conditions which led to the accident. Ramirez pointed to evidence establishing that the Captain failed to notify him about the wet glove and therefore, created a safety hazard and that the cluttered condition of the galley was attributable to the Captain.

This Court found nothing to indicate the District Court erred in apportioning fault. Therefore, this Court affirmed the District Court's apportionment of fault.

Second, Ramirez contested the district court's finding that he was negligent in misrepresenting his medical history on the job application. Ramirez argued that the nondisclosure of his ailments did not cause the injury he suffered as a result of the fall.

The District Court found that Ramirez had sustained neck or back injuries on 5 separate occasions ranging from 1979 - 2004. None of these were disclosed by Ramirez. This Court found that this was enough for the District Court to conclude that Ramirez's injuries after the fall, were in large part, a reaggravation of his previous injuries.

Accordingly, this Court affirmed the ruling of the District Court.

Comment:
Where a seaman knowingly exposes himself to conditions of employment, while aware of an illness or disability, which makes those conditions unsafe to him may be found contributory negligent.

Steve Gordon

Background:
Before this Court was defendants', Cargill Incorporated, American Commercial Lines, motions for summary judgment.

Plaintiff, Carter McEuen, was  injured while opening a roll-top barge cover as a deckhand aboard the M/V Tom Edwards, owned and operated by Lower Illinois Towing Company.  Lower Illinois was McEuen's employer.

At the time of his injury, McEuen had almost 20 years of experience as a seaman.  Lower Illinois was engaged in the business of switching, cleaning, and fleeting barges for defendant American Commercial Barge lines and, on occasion, performed work for Cargill, including opening roll-top covers on barges at when Cargill was busy or had trouble rolling the covers themselves. Lower Illinois would directly bill Cargill for those services.

Roll-top barges can sometimes be problematic. The covers may come out of the tracks, making them difficult to roll, causing them to get stuck. The pins, holding the covers into place, sometimes fall down while the covers are being rolled back making them stop in their tracks.

On the day of the incident, Cargill had Lower Illinois help them open roll-top covers on their barge so that the cargo box could be filled with grain. While the roll-top barges were being loaded, grain and dust began to accumulate on the deck. Cargill employees testified that Cargill cleaned the barges after they were finished being loaded.

McEuen prepared to close the covers over the half of the Barge that had been filled and open the remaining covers. During this process, however,on e of the covers split and the covers became stuck.

McEuen went to the stern end of the barge, climbed onto the stuck cover and attached a cable to the lift ring using the same kind of hook and shackle device that had been used earlier to roll the covers from the bow end of the Barge. 

As he climbed down from the cover, he felt his knee pop. Despite this, McEuen finished rolling the covers and later returned in the afternoon to close all the covers.

McEun went to the doctor and ended up having to correct a tendon tear.

McEun brought this suit alleging Jones Act, maintenance and cure against his employer Illinois Southern. McEun brought claims of general maritime negligence and unseaworthiness against Cargill and American.

Issue:
Did this Court grant Cargill's and American's motions for summary judgment?

Held:
Cargill argued that McEuen cannot sustain an unseaworthiness claim against it because Cargill did not own or charter the barge in question. McEuen countered, arguing that Cargill owed him a duty of seaworthiness by virtue of its use and control of the barge. However, this Court recognized that the only way in which a party can acquire status as an owner is if the party is a demise, or bareboat, charterer.

This Court found that Cargill used the barge consistent with a time or voyage charter because the barge was only used for a "specific service" and Cargill did not assume exclusive possession, command, and navigation.

Accordingly, the action of unseaworthiness against Cargill, a time/voyage charterer, did not stand.

Second, Cargill argued that McEuen's negligence claim should not stand because it did not owe McEuen a duty of care. McEuen countered, arguing that Cargill knew roll-top covers were problematic, it was reasonably foreseeable McEuen would have to climb on top of the covers because some were not accessible by ladder and Cargill was responsible for preventing grain dust from accumulating on the barge's deck.

This Court found Cargill owed McEuen a duty of care. Cargill hired McEuen's employer to open roll-top covers on the barge and that Cargill was billed and paid for these services. By merely hiring Lower Illinois employees, knew they would be required to climb on top of covers in order to roll them and it was reasonably foreseeable someone would injure themselves. Cargill had a duty to keep the barge in a safe condition while it was being loaded. This Court denied Cargill's motion for summary judgment for McEuen's general maritime negligence claim.

American argued that the duty to provide a seaworthy vessel did not extend to seamen who are not member's of the vessel's crew. Because American never employed McEuen they did not owe him a duty of care or warranty of seaworthiness.

Comment:
The elements of maritime negligence are the same as general negligence. A plaintiff must establish:

(1) Defendant owed plaintiff a duty of care

(2) Defendant breached the duty

(3) The breach of duty caused plaintiff's injuries and

(4) The plaintiff sustained damages

Background:
Plaintiff, Brett Kurpiel, filed this action under the Jones Act alleging he sustained injuries while working for defendant, Calumet River Fleeting, Inc. Kurpiel alleged his injuries were a result of Calumet's negligence and unseaworthiness of their vessel.

Kurpiel was hired as a deckhand to work aboard Calumet's vessel. His duties included keeping decks clear, tying off barges, facing up to barges, properly stowing equipment, and basic vessel maintenance.

Kurpiel participated in a three-week training period with a more experienced deckhand before being allowed to work on his own. One the day of the alleged incident, weather conditions forced the vessel to find safe harbor and dock for the night instead of returning to Chicago.

Kurpiel described the weather conditions as changing from rain, to snow, then to ice, and finally to a near blizzard. While working the midnight to 6am shift, Kurpiel went to the wheelhouse to use his cellphone. Kurpiel fell asleep in the wheelhouse while waiting for the cell phone call and while watching the barges.

When he woke up he walked down back the steps leading to the wheelhouse, slipped on the last stair, fracturing his ankle. Kurpiel signed a statement in which he stated he did not know if he slipped or just turned his ankle. Kurpiel also stated there were rails on both sides of the steps and all six steps had non-skid paint on them. The area was well lit and that the wheelhouse stairs had been salted and taken care of by the other deckhand running the earlier shift.

Kurpiel also stated it was a "freak accident" and did not think it could be avoided. However, during his deposition, Kurpiel turned around and stated the stairs had not been shoveled or salted. He did confirm, however, that it was the responsibility of the deckhand to do so and that he was four hours into his shift when he fell on the stairs.

Kurpiel also testified, during his deposition, that the captain mentioned to him ice creepers (non-skid shoe-wear) were available for his use.

Calumet filed this Motion for Summary judgment in response to Kurpiel's action.

Issue:
Did this Court grant defendant employer's motion for summary judgment?

Held:
In his signed post-accident statement, Kurpiel admitted that all six steps had non-skid on them, the area was well lit, wheelhouse stairs had been salted, the crew checked the stairs and surrounding areas, post-accident, and found that they were still "ok" from the salting and his fall was a "freak occurrence".

Kurpiel then changed course in his deposition, but did mention the captain told him ice creepers were available. The Court found that Kurpiel's statement "freak accident" severely damaged his case.

Also, this Court recognized Kurpiel failed to provide any evidence that established that ice creepers were required or that their use would have prevented the accident.

During his deposition, Kurpiel stated he never complained about conditions aboard the vessel prior to his injuries and that his actions, with respect to the condition of the boat, were not reasonable.

Ultimately, this Court did not find any source of factual evidence to support Kurpiel's negligence or unseaworthiness claim.

Accordingly, this Court granted Calumet's motion for summary judgment.

Comment:
To the extent that a party's statement in an affidavit contradict his deposition testimony, Courts do not consider the affidavit in ruling on summary judgment motions.

However, Kurpiel's post deposition affidavit claim that he was unaware of any ice creepers although during prior deposition, he admitted that the Captain offered him a pair of creepers.

Accordingly, based on the deposition, Kurpiel failed to present any evidence suggesting Calumet's negligence or any unseaworthy condition aboard the vessel.

Steve Gordon

Background:
Before this Court is an action pursuant to the Limitation of Liability Act. Defendant, Julio Angel Velez, filed a motion to dismiss MLC's Limitation claim arguing that the accident did not invoke the court's admiralty jurisdiction because the accident did not occur aboard MLC's vessel.

In order to board the vessel from the marina, Velez had to descend a metal ramp which is not attached permanently to the land or the vessel. The ramp leads to a floating dock, which must be traversed to access the steps to the vessel.

Velez was to embark on a fishing expedition on the date of his injury. Unfortunately, Velez fell due to an alleged "slippery" premises and ramp.

MLC Fishing filed a Limitation of Liability action and Velez filed this motion to dismiss.

Issue:
Did this Court dismiss MLC's Limitation of Liability action because Velez did not injure himself while aboard MLC's vessel therefore, removing admiralty jurisdiction?

Held:
This Court recognized that if the ramp, where Velez fell, is part of the vessel, F/V Capt Mike, then there is a connection with maritime activity thus placing this action within the court's admiralty jurisdiction.

The determinative question is whether the ramp is considered part of the Capt Mike. In Dobrovich v. Hotchkiss (14 F.Supp.2d 232 (D.Conn.1998), the Connecticut court faced the question whether a ramp leading to floating docks, which must crossed to reach the location where the ship is moored should be considered an extension of the land.

The Court in Dobrovich found that the ramp was not a gangway. MLC argued Dobrovich is distinguishable because the ramp in that case was permanently affixed to the land while the ramp which Velez slipped on was not.

None of the cases MLC relied upon considered a ramp the equivalent to a gangway for the purpose of admiralty jurisdiction or the Limitation of Liability Act.

The Courts have generally not defined specifically what a gangway is. However, the Courts have inquired into whether the vessel owner owed the plaintiff a duty of care with respect to the gangway that was not owned nor controlled by the vessel owner.

This Court did not extend admiralty jurisdiction by defining a gangway as including a ramp separated from the vessel by floating docks.

Accordingly, this Court dismissed MLC's action for Limitation of Liability holding no admiralty jurisdiction existed on a gangway leading from the land to floating docks.

Comment:
In order for a Limitation of Liability action to proceed the court must have admiralty jurisdiction over the underlying action.

The Courts have consistently held that a gangway, leading from the land to floating docks, was not considered part of a vessel. Typically, when a gangway connects a vessel to the land, the inquiry shifts to whether the vessel owner or charterer has a duty to maintain the gangway. If so, then the action will likely fall within the court's admiralty jurisdiction.

This action however, dealt with a gangway connecting land to floating docks, not to the vessel itself.

Steve Gordon  

Background:
Plaintiff, Pan Quan Ru, filed this action under the Jones Act, general maritime law, and the savings to suitor's clause asserting negligence, unseaworthiness, and seeking general and punitive damages.

Quan Ru alleged injuries while working aboard the tugboat CONDOR owned and operated by Seabulk Towing Services (another defendant). When Quan Ru tried to cast off the tug lines on the stern the messenger line belonging to the CONDOR caught Quan Ru's leg resulting in the amputation of his leg.

Quan Ru filed this action in Louisiana state court for the injuries he sustained while working aboard the vessel M/V Ikan Sepat owned and operated by Sepat Shipping and PACC Ship Managers.

Defendants removed the cause to the District Court for the Eastern District of Louisiana pursuant to federal question jurisdiction on the basis that the Convention on the Recognition of Foreign Arbitral Awards governed the dispute as two documents entered into between the parties contained purported agreements to arbitrate.

Quan Ru filed a Motion to Remand contending that no valid arbitration agreement existed in either the collective bargaining agreement or the employment contract at issue.

The Court denied Quan Ru's first Motion to Remand without prejudice finding that the CBA contained an arbitration agreement that did not apply to Quan Ru individually. However, the Court found at that the employment agreement may have been subject to arbitration under the Convention.

Quan Ru denied actually signing the employment agreement but eventually both parties stipulated on the record that the evidence supported the conclusion that Quan Ru's signature was valid.

Quan Ru now urges this  Court to grant his second Motion to Remand on the basis that the artbitration clause is unenforceable.

Issue:
Did this Court find the arbitration clause in the employment agreement unenforceable?

Held:
Quan Ru argued that the clause is unenforceable and therefore he is not subject to arbitration because, under Chinese law the arbitration clause is unenforceable, enforcing the arbitration agreement would deny Quan Ru statutory remedies guaranteed under United States law and the employment agreement, containing the arbitration clause, is at odds with the relevant CBA and is therefore, void under Chapter 2 of the Federal Arbitration Act.

This Court found that the Chinese law assertion, made by Quan Ru, required analysis and interpretation of Chinese law beyond this Court's limited inquiry. Moreover, this Court found that Chapter 2 allowed for an affirmative defense but this Court found that four factors, under Francisco (discussed below) were met.

Finally, this Court found that US law favors arbitration as a matter of public policy and that the agreement should be enforced despite the fact it denies Quan Ru of statutory remedies available under US law.

Comment:
The Court examined four factors laid out in Francisco.

These four factors determine whether an arbitration agreement is enforceable. Under this inquiry the court MUST compel artibtration:

1. There is an agreement in writing to arbitrate the dispute

2. The agreement provides for arbitration in the territory of a Convention signatory

3. The agreement arises out of a commercial legal relationship and

4. A party to the agreement is not an American citizen.

Because these four factors were met, the arbitration clause was enforceable.

Steve Gordon

Background:
Before this Court was a motion for partial summary judgment filed by Cenac Towing Co., Inc. Plaintiff, James Brown, brought this action alleging Jones Act negligence, unseaworthiness, and maintenance and cure under general maritime law.

Brown alleged that he was completing the loading procedure of the barge by disconnecting a flange end of the hydraulic loading arm with another tankermen when Valero's dock man prematurely began loading the arm and Brown became pinned between the arm and a winch located on the barge.

Issue:
Did this Court grant Cenac Towing's motion for partial summary judgment?

Held:
This Court found that nothing presented in the complaint, memoranda, or accompanying deposition suggested any negligence on behalf of Cenac. Brown suggests the possibility of negligence on behalf of the Valero employee who was operating the loading arm as well as potential unseaworthiness as a result of the loading arm allegedly malfunctioning.

However, Brown failed to contend anything Cenac did caused his injury OR that they were negligent to begin with.

Accordingly, this Court found no material issue of material fact whether Cenac was negligent and was therefore, the proximate cause of Brown's injury.

Comment:
To show liability in a Jones Act claim, a plaintiff must show negligent breach of duty and proximate cause that is imputed to the employer.

Even the slightest employer negligence is sufficient for a finding of liability to an injured seaman (Spinks v. Chevron Oil Co., 507 F.2d 216). Here, the plaintiff failed to allege any negligence by the defendant.

Steve Gordon

Background:
Reider M. Juliussen, plaintiff, filed this action under the Jones Act after falling on board the ship which he works and injuring his right knee. Buchanan is Juliussen's employer and operator of the ship.

Juliussen worked as a Mate for Buchanan. Juliussen obtained a license upon completion of a Coast Guard exam and the license identifies him as "an officer of the vessel that he serves on" and therefore, outranked the deckhands.

Juiliussen left and returned to work for Buchanan in spite of his concern that their vessels were "unseaworthy". Juliussen never felt his safety was in jeopardy.

Juilissen's job involved relieving the Captain from steering responsibilities in six-hour intervals, his hours were fixed at noon to six and midnight to six am. When the Captain is on duty, Juliussen is not required to do much but is still considered "in service to the vessel". It is not Juliussen's job to perform maintenance or repairs on the boat.

Prior to this accident, Juliussen had fallen on the stairs of nearly every Buchanan boat he had served on but had not been injured.

Juliussen attributes his falling to the lack of adequate lighting in the stairwell as well as the worn condition of the diamond treads. Juluissen also told the Captain about these problems with the stairwell in general by way of conversation over the years. However, he failed to formally report the problems to the Captain or to shore personnel.

At the time of the fall, Juliussen was wearing low-top sneakers that had rubber soles. He did not wear his leather boots because he was not on duty. The sneakers had tread on them and Juliussen believed they had better traction than company sanctioned leather boots.

Following surgery Juliussen continued to work as Mate on the vessel, which still has many unseaworthy conditions of which Juliussen complains, including the stairwell. According to his doctor, he will develop arthritis in the right knee.

Juliussen filed this action under Jones Act negligence, unseaworthiness, and sought damages for approximately $717,000.

Buchanan responded asserting primary duty doctrine, and that Juliussen's sole negligence was the cause of his fall. Buchanan filed a motion for summary judgment on these issues.

Issue:
Did this Court find that Juliussen's claims were barred based on the primary duty doctrine and/or because the fall was attributable 100% to Juliussen's negligence?

Held:
First, Buchanan asserted that the stairway did not present a dangerous condition. Buchanan contended that the stairway was and continues to be safe and reasonably fit for seamen to move between levels on the ship. Juliussen admitted that the stairway on the ship is typical of any other tugboat stairway and nothing in the stairway has changed over the previous four years leading up to his fall.

Bucnahan also asserted that Juliussen failed to officially give them notice to the dangerous condition. Moreover, they argued that Juliussen's own actions were the sole and proximate cause of his injuries.

Juliussen countered, arguing that there are issues of material fact whether Buchanan breached its duty to provide a reasonably safe workplace by not providing lighting in the stairwell  and that it could have caused his fall.

This Court recognized there was conflicting testimony and evidence as to whether Buchanan's removal of a fluorescent light bulb and subsequent installation of a nightlight breached their duty. Buchanan failed to present evidence, outside its own statements, that the nightlight was a reasonable substitute lighting for a tugboat stairwell and that no dangerous condition existed. Therefore, there are genuine issues of material fact.

Buchanan also argued that the primary duty rule applied to bar Juliussen's claims.

According to Buchanan Juliussen had a duty to maintain safe conditions on the vessel and that because he knew of the conditions, failing to remedy or notify anyone constituted a breach of this duty. Juliussen also admitted he was responsible for preventing and correcting the known hazard.

Juluissen claimed that genuine issues of fact existed whether his duty as an employee "extended to furnishing the vessel with specific equipment the owner did not supply" and whether his injuries were caused by a breach of Buchanan's breach of its own duty to provide a safe workplace.

Accordingly, this Court denied Buchanan's motion for summary judgment.

Comment:
Employers/Vessel Owners will often assert the "primary duty doctrine" as an affirmative defense.

Under the primary duty doctrine, an employee cannot recover for injuries caused by his own breach of a duty which the injured person has consciously assumed as a term of his employment. The primary duty doctrine acts as an absolute bar to a seaman's recover under the Jones Act.

Steve Gordon

Background:
Plaintiff, Errol Chouset, alleged that he noticed wet paint on the M/V Hannah B owned by Offshore Marine that had been turned over to Superior for repairs. Chouset, an employee of Superiod,  asked his foreman what to do and was instructed to keep working.

Chouset claimed he fell and injured his back on the wet paint as he returned to work. Chouset filed a claim under LHWCA, Longeshore Harbor Workers' Compensation Act, and against Offshore Marine.

Offshore Marine added Superior as a third party defendant and Chouset moved to add Superior as a direct defendant.

Issue:
Should Superior be brought in as a direct or third party defendant?

Held:
Superior argued that the third party complaint is premature and not ripe for litigation and non-justiciable because this matter is already pending under the LHWCA. Chouset has brought an action under LHWCA to administrative judges to determine the issue of his employer/employee relationship and status. Accordingly, Superior contended that the claim against them as a third party defendant is not ripe.

Superior pointed to §905(a) to stand for the proposition that an employee may elect to claim compensation under the LHWCA and therefore, Superior contended that Chouset's election is binding and prevents Superior's liability in tort.

This Court however, found 905(a) inapplicable to this issue. This Court recognized that under §905(a) an injured employee may proceed under the LHWCA or under tort if any employer fails to secure payment of compensation as required by this chapter.

905(a) deals with an employer who has declined to procure insurance or otherwise failed to compensate an employee entitled to coverage under the LHWCA.

Superior's position, this Court reasoned, would tag Chouset as an independent contractor and remove recovery under LHWCA completely.

Ultimately this Court found that the Jones Act claim, in which Superior is a third party defendant, is not stayed by LHWCA proceedings.  Chouset's status, as a seaman or not, can be resolved by cross motions for summary judgment unless material factual disputes arise.

Accordingly, this Court found Superior's claim is ripe for hearing.

Comment:
This case provided a good illustration of LHWCA procedure for a claim.

The LHWCA is a statutorily-defined scheme to allow agency expertise to adjudicated and review all claims by land-based maritime workers.

First, a claim is brought before an Administrative Law Judge under §919(c), an appeal of the ALJ's finding may be brought pursuant to §921(b) to the Benefits Review Board (BRB). If an employee/employer is not satisfied with the ruling of the BRB, then they may appeal, to a court of appeals under §921(c).

Employer liability is exclusively constrained to this administrative proceeding under the LHWCA. All other liabilities between an employer and land based maritime employee are pre-empted.

Steve Gordon  

Background:
Plaintiff, John Tatum, moved for a declaratory judgment seeking a declaration that a purported release and receipt signed by Tatum to be null and void pursuant to the Declaratory Judgment Act. Defendant, Axxis, moved for Summary Judgment seeking dismissal of Tatum's claim by declaring Release is valid and enforceable.

This action arose out of an injury allegedly sustained by Tatum while he was working aboard a drilling barge owned and operated by Axxis. Tatum slipped on a hazardous substance, known as "deck wash" while exiting onto a deck of the barge from the stairs. Tatum alleged to have suffered severe and disabling injuries as a result of the slip and fall.

Tatum was then sent to an Axxis company doctor, who examined Tatum and advised him to continue working full duty but to avoid squatting, kneeling and climbing. Tatum was prescribed anti-inflammatory medication and Tatum then returned to work for the last day of his shift, assigned to folding laundry.

Seven days later, Tatum attempted to board the ship and return to work but was told to go home and heal. Tatum was summoned to an Axxis office where he was met with an attorney, representing Axxis. Tatum executed a Receipt and Release of his rights regarding his accident, 15 days prior, and received a check in the amount of $1,669.

Tatum claimed that he did not fully understand the consequences of executing the agreement and in response Axxis contended that the release is valid and enforceable, effectively preventing claims asserted by Tatum in connection with his accident.

Issue:
Did this Court find that the Release signed by Tatum was valid and enforceable?

Held:
Both parties agreed that the burden of proving the validity of a release is placed on the proponent of the release who must prove the release was executed freely without deception or coercion and that it was made by the seaman with full understanding of his rights. Therefore, the burden is upon Axxis for proving the validity of the release.

Axxis must show, in this motion for summary judgment, that there is no genuine issue of material fact exists.

Here, Tatum did not know he was meeting with an Axxis attorney when he was called to an office, and therefore did not have an opportunity to obtain counsel. He was also told by Axxis's attorney that if he obtained legal counsel, Axxis would no longer be able to talk to him. Therefore, Tatum, claiming a 9^th grade education argued he was left with the impression no deal would be available if he sought legal advice.

Moreover, Tatum reasonably believed he would lose his job if he chose to hire an attorney.

Moreover, it did not appear Tatum and Axxis negotiated at arm's length and in good faith. Tatum was not told why he was reporting to Axxis's offices before he reported therefore, the possibility of obtaining counsel, and was not given any time to consider the offer. Tatum was also not told he could return to work while considering the offer.

Finally, the Court found that there was the appearance of coercion and that there was a grossly inadequacy of consideration.

Accordingly, this Court found that the release signed by Tatum was not valid and unenforceable.

Comment:
In determining whether a release is valid, the Courts examine factors to determine whether the injured seaman understood the nature of his rights and consequences of release.

These factors are (1) Whether he/she was given the opportunity to obtain outside counsel (2) Whether the parties negotiated at an arm's length (3) Whether there was an apprehension of coercion or fraud and (4) The adequacy of consideration.

While each factor is not determinative, the Courts balance them to determine whether the agreement(s) are valid.

Steve Gordon

Case Name: John Paul DeHart Jr. v. BP America Inc., et al.
Date Decided: January 14, 2010
Court: United States District Court, W.D. Louisiana
Judge: Jude Hill
 Citation: 2010 WL 231744 (W.D.La.)

Background:
Plaintiff, John Paul DeHart, filed this purported class action lawsuit on behalf of himself and other alleged similarly situation people claiming personal injury as a result of exposure to airborne radiation dust while engaged in a platform decommissioning project.

DeHart and other workers engaged in the decommissioning ate meals and slept aboard the L/B Dixie Patriot while work was being performed on the platform to decommission it. There were also two supply boats assisting in the operation.

Plaintiffs asserted a class action and identified causes of action for negligence of the defendants under the Jones Act, general maritime law, and applicable Louisiana law.

In the complaint, plaintiffs allege seaman status. DeHart also testified that 99% of the decommissioning work he performed was performed while he was physically on the platform but not while he was on the Dixie Patroit. DeHart admitted that his use of the Dixie Patriot was limited to eating meals and sleeping.

Defendants removed this action to the U.S.D.C. for the Eastern District of Louisiana, alleging jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA") and further alleged plaintiffs failed to to state any claim for relief or right of recovery under the Jones Act, unseaworthiness, or maintenance and cure because plaintiffs failed to qualify as a seaman.

Plaintiffs asserted this suit was improperly removed because DeHart is a Jones Act seaman whose Jones Act action is non-removable.

Issue:
Did the Court properly remove this action to the U.S.D.C. for the Eastern District of Louisiana?

Held:
First, the Court determined whether DeHart qualified as a Jones Act seaman.

DeHart contended that he was assigned to the Dixie Patriot as a seaman in order to assist in the performance of the offshore maritime construction work performed of the offshore maritime construction work performed for and by BP.

The Court then examined whether DeHart's connection to the Dixie Patriot was substantial in nature and duration. DeHart admitted that 99% of his work on this project was performed whilke he was physically on the platform and not the vessel.

Based on the evidence presented this Court found that DeHart was not a Jones Act seaman.

Accordingly, this Court found that DeHart's claim was removable because he failed to show he qualified as a Jones Act seaman.

Comment:
Generally, Jones Act cases are not removable. In certain circumstances, the Fifth Circuit has recognized that defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal.

The District Court, therefore, may use a summary-judgment like procedure to determine whether a plaintiff has fraudulently pleaded a Jones Act claim.

Steve Gordon

Background:
This action involves a personal injury negligence claim under the Jones Act, and unseaworthiness against the Washington Department of Transportation.

Frank Caraska, sued the WSF for injuries he sustained when an intoxicated ferry passenger assaulted him. Following a 3-day bench trial the court dismissed the lawsuit against WSF, and ruled that WSF employees were not negligence in allowing the drunken passenger to board the ferry.

The totality of the evidence suggested that the passenger was drunk and obnoxious but was not acting in threatening or aggressive manner that would have alerted WSF employees he posed a threat to passengers or employees.

The trial court also concluded that the evidence that WSF were "negligently trained" causing an unseaworthy condition. This Court, on appeal, reversed the order of dismissal. This Court found that the trial court erred in narrowly construing WSF's duty to prevent foreseeable harm from an intoxicated passenger.

On remand, the court found there was no breach of duty by the WSF ferries and that the unseaworthiness claim was not based on adequate evidence.

Caraska appealed the trial court's decision on remand.

Issue:
Did the lower court err in determining that WSF employees did not breach a duty owed to Caraska?

Held:
Caraska argued that on remand, the trial court failed to comply with this Court's decision in the firat appeal. Caraska contended that the trial court ignored this Court's opinion by misconstruing and failing to address the duty and refusing to address causation with respect to the Jones Act claim.

Furthermore, Caraska contended that the court merely "glossed over" the unseaworthiness claims of inadequate training.

However, this Court found that the trial court did comply with the decision. The Court pointed out the lack of evidence of training deficiencies. Moreover, Caraska failed, to show by a preponderance of the evidence that WSF breached a duty by selling the drunk passenger a ticket.

Accordingly this Court affirmed the trial court's dismissal of Caraska's Jones Act claim.

Comment:
Courts of appeal give much deference to the finders of fact in the lower courts. Appellate courts generally view the evidence and all reasonable inferences in the light most favorable to the prevailing party and do not review credibility determinations.

As such, it takes an experienced attorney to find errors in evidentiary determinations made by the lower courts. Even though an appellate court may have resolved a factual dispute differently, they cannot overturn the trial court's findings based upon that standard.

Steve Gordon  

Background:
Plaintiffs, Michael and Penny Felarise filed this action seeking damages sustained as a result of a boating accident.

Michael Felarise alleged he suffered total and permanent disability, grievous physical and mental anguish, loss of bodily function, and embarrassment. Penny Felarise also contended she is entitled to loss of consortium.

Cheramie Marine filed a motion to dismiss, arguing that a spouse of a non-seafearer cannot recover non-pecuniary damages in a personal injury action for injuries sustained in state territorial waters.

Issue:
Can the spouse of a non-seafarer recover non-pecuniary damages in a personal injury action for injuries sustained in state territorial waters?

Held:
This Court examined the holding in Yahama (where a 12-year old vacationer was killed in Puerto Rican waters, when her personal watercraft slammed into an anchored vessel) The Court in Yamaha, (116 S.Ct. 619) - held that in regards to non-seaman, longshoremen, or engaged in a maritime trade, because Congress has not prescribed remedies for their wrongful deaths in territorial waters, state law may supplement the general maritime law in cases involving the deaths of non-seafarers in territorial waters.

This Court found that because Penny seeks non-pecuniary damages for her husband's injuries, that occurred while he was engaged in recreation in state territorial waters, then the action should not be dismissed.

Comment:
Jones Act seaman, longshoremen covered under the LHWCA, and those engaged in traditional maritime activities,  are prescribed statutory remedies prescribed by Congress (or under general maritime law).

As such, if the comprehensive recovery scheme does not allow for certain kinds of damages, the plaintiff(s) may not supplement damages with state law.

However, when someone is injured in State territorial waters while engaged in recreation, it is possible they may recover under state law, including non-pecuniary damages.

Steve Gordon

Background:
Plaintiff, Brendan Reichert, brought this claim for negligence under the Jones Act against vessel owner, Mon River Towing Inc.

Reichart alleged he suffered injuries during the course of his employment due to a faulty locking mechanism on a winch.

Reichart initially filed his complaint alleging jurisdiction and venue were proper, in Ohio because Mon River conducted business within the forum's boundaries.

The first attempt at service by certified mail failed because it was not "deliverable as addressed".  Reichart then sent a first amended complaint and sent by certified mail. A certified return receipt was signed by Dena Trilli on behalf of Mon River.

Mon River then filed a motion to dismiss for lack of personal jurisdiction and forum non conveniens. While it acknowledge it dropped off barges for repair at a landing on the Ohio River, Reichart's accident occurred in Pennsylvania, over 50 miles away from the Ohio drop point.

Ohio granted Mon River's motion to dismiss for lack of personal jurisdiction and dismissed the suit without prejudice. Reichart filed a notice of appeal.

The first complaint was filed on November 9, 2009, the first amended complaint was filed in the federal action on December 8, 2009, to correct a typographical error regarding the date of Reichart's injury.

Mon River filed a motion for dismiss claiming that the time period should not have been polled due to the prior filing of a case in an Ohio state court.

Issue:
Did this Court grant Mon River's motion to dismiss?

Held:
This Court examined whether the tolling principles would be controlled by a federal statute of limitations or Ohio State principles.

Mon River argued that the plain language of Burnett, stands for the proposition that the limitation period is tolled only when a plaintiff's case is dismissed for improper venue.  Therefore,  because the Ohio Court determined it did not have personal jurisdiction, the limitations period was not tolled.

Reichart countered, arguing that Burnett merely requires the state court to have subject-matter jurisdiction, and such that his timely commencement of the Ohio Action was sufficient to toll the limitations period.

This Court found that tolling the statute of limitations, under these facts, was not warranted. The general federal rule concerning the issue of tolling is that the commencement of one action did not toll the statute of limitations applicable to another.

It was not reasonable, according to this Court for Reichart to initate this lawsuit in an Ohio state court.

Accordingly, this Court granted Mon River's motion to dismiss.

Comment:
In Burnett v. New York Central Railroad (380 U.S. 424) the Court held that laws regulating recovery for personal injuries to railway employees shall apply to actions under the Jones Act.

Therefore, Burnett is applicable to this action. The Court in Burnett examined whether congressional purpose is effectuated by tolling the statute of limitations in given circumstances.

Steve Gordon

Background:
Plaintiff, James McCuiston, was allegedly injured while working as a cook/galley hand while employed by Coastal Catering.

McCuiston entered into a seaman's release of claims for $2,000. The agreement released any and all claims against Coastal, Tetra (charterer of vessel) and their principal contractor. The agreement acknowledged that McCuiston's potential claims included, pain and suffering, compensation, wrongful termination, discrimination, medical expenses, maintenance, cure, and others.

In its plain language the agreement provided that McCuiston "will never again be able to recover money". McCuiston also recognized, in the agreement, that he was willing to complete the agreement in order to avoid the uncertainties and expenses of litigation.

Notwithstanding his release of claims, McCuiston brought this action against Coastal. McCuiston elected to proceed pro se. McCuiston has been absent since indicating he would represent himself.

McCuiston also failed to comply with discovery requests, provisions of the Court's pretrial scheduling order as well.

McCuiston alleged Jones Act negligence and unseaworthiness. Tetra and Southern have moved to dismiss for failure to prosecute and Coastal has moved for summary judgment.

Issue:
Did this Court grant Coastal's motion for summary judgment and other defendants' motion for dismissal for failure to prosecute?

Held:
This Court found that Tetra and Southern demonstrated the validity of McCuiston's release of claim. The record indicated that McCuiston entered into the settlement agreement freely and without deception or coercion. Moroever, McCuiston affirmed, under oath, that he was not under duress, and that nobody was making him settle his claims.

He also indicated that he was not under the influence of any drugs or alcohol and acknowledged he understood that he was free to hire independent counsel.

Moreover, even though $2,000 is a relatively small sum, the amount, according to this Court was not so low that this Court must conclude on the facts that he had lacked a complete understanding of his rights.

Accordingly this Court found that the settlement agreement was valid and freely entered into, as such, granted defendants' motion for summary judgment.

Comment:
When settling, the amount of the settlement can be taken into consideration as a factor whether the plaintiff/injured seaman understood his rights under the agreement.

Here, the plaintiff chose to proceed pro se and missed many discovery and scheduling deadlines. Whenever an injured seaman chooses to pursue an action, by representing themselves, it involves an inherent risk.

It's important to at least consult an experienced attorney in Jones Act/maritime cases to determine whether it's viable to settle sooner or take the action to trial if one is not reached.

Steve Gordon

Background:
Before this Court was a motion by defendant, General Maritime Management, to disregard a jury verdict in favor of Marin Dumitrescu or alternatively, for a new trial. Marin was awarded $790,000 by a jury in a Jones Act claim he brought against General Maritime for injuries sustained while working as a seaman aboard General's vessel.

Marin was 50 years of age and worked aboard General's vessel. Marin had a pre-employment physical examination and was found fit for duty and was assigned the task of fabricating a winch cover with another fitter.

The two mean had to turn the winch cover over to work on the opposite side, while doing so, the partially completed winch cover slipped. Marin pulled back to prevent it from falling him and claimed to sustain a substantial back injury as a result.

Following a Jones Act claim a jury awarded Marin $790,000 for lost wages, past pain and suffering, and future pain and suffering.

Following the award, General ruled for a judgment as a matter of law or a new trial arguing that Marin failed to present sufficient evidence that supported the jury's verdict.

Issue:
Did the plaintiff submit sufficient evidence to support the jury's verdict?

Held:
General first challenged the jury's finding of Jones Act negligence.

This Court found there was ample support for all the elements of Jones Act Negligence. Marin testified that while he was lifting the winch cover he felt cracks in his spine and pain shooting through his body. Moreover, Marin testified that before lifting the winch cover, he complained to the ship's chief engineer that his assignment to secure a winch cover was dangerous because the covers were large, heavy, and the ship did not have lifting equipment.

Marin's complaints put General on notice of the dangerous condition. The chief engineer, according to Marin's testimony, threatened to drop him off at the nearest port if he refused to secure the winch cover.

The vessel's captain testified that the engineer's response violated the International Safety Management Code, which applied to the vessel. Moreover, the Captain testified that Marin's accident was foreseeable and resulted from General's negligence.

This Court ultimately found that because Marin established sufficient evidence in his favor and General Maritime failed to provide sufficient countering evidence that the jury verdict was reasonable and that General was not entitled to a new trial.

Comment:
A judgment as a matter of law may be granted contrary to the jury's verdict. It may be granted only where (1) there is such a complete absence of evidence supporting the verdict that the jury's finding could only have been the result of sheer surmise or conjecture or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair-minded people could not arrive at a verdict against the movant.

Steve Gordon

Background:
This action arose from a wrongful death claim against Vulcan Materials Company. Currently before this Court is Vulcan's claim for contribution against the United States.

Freddie N. Porter Jr. and fellow Navy personnel departed from a US Naval base in five rigid-hull inflatable boats for a navigation training exercise.

The training was a part of a two-week coxswain course that Porter, a land-based supply clerk, had volunteered to attend. Prior to leaving the Naval Base each of the boat's crew completed a preoperation inspection, verifying that the boats' running lights properly functioned.

The crew conducted another pre-operation inspection when darkness fell and again, verified that all the lights on the boats-including an all-around white light mounted next to the radar dome on the mast, and a set of green running lights mounted forward in the boats functioned properly.

For their return the crews were instructed to stay inside the shipping channel to minimize their chances of running aground or hitting obstacles such as crab pots. Prior to the return trip, each crewmember verified that they were wearing a functioning chemlight which would help rescuers spot them in case of an emergency.

Prior to Porter's departure to return, Captain Rodney Wooldridge began heading upriver pushing a six-barge flotilla that was three barges long and two barges wide. After getting underway and one hour before sunset, the tug flotilla's captain instructed a deckhand to position and illuminate the flotilla's running lights.

The empty barges created a blind spot that extended about 600 feet forward of the flotilla's bow at water level. The captain and his deckhand could not see the river or an object on the river depending on its height for some distance in front of the flotilla.

The shipping channel of the river, at the spot of the collision, was only 300 feet wide. Eventually, the navy personnel and the flotilla met in the same spot, the narrow shipping channel. Porter's boat was struck by the flotilla as each crewmember jumped out of the boat in an attempt to avoid serious injury or death. Two of the boat's crewmembers survived but Porter did not and was found washed ashore with propeller inflicted injuries. A state medical examiner concluded that Porter had been conscious until he received a final fatal blow to the head.

The tug captain and deckhand did not observe the chaos in front of them due to the blindspot. Porter had no dependants at the time of his death. The parties stipulated that the fair market value of the Poole (tugboat) was 1.5 million. The US made a death gratuity payment of 100,000 and also reimbursed Porter's funeral and burial expenses in the amount of $7,000.

Vulcan, the owner of the POOLE, sought exoneration from or limitation of liability arising out of the collision.

Issue:
Did this Court allow Vulcan to limit their liability and/or require the US to contribute to the judgment amount?

Held:
First, the Court examined whether the US and Vulcan were negligent.

This Court found that both US and Vulcan were negligent. First, the US was negligence by operating an unseaworthy vessel by manning the boat with an incompetent crew. None of the crewmembers were properly prepared to operate the small craft in a busy shipping channel at night and even the safety observer had little experience on the water. The vessel also kept to the port side of the channel in violation of a Navigation Rule that requires vessels to stay on the starboard side of a channel. Moreover, the safety observer instructed the boat to be stopped in the middle of the channel. Finally, the Court noted had the crew used the radar equipped on the boat properly, it could have been lifesaving.

This Court also found Vulcan negligent for failure to provide a lookout. The following factors prompted the court to find that a lookout was necessary : Dark night, bad weather, narrow channel, a blind spot, and presence of small boat traffic.

Ultimately, this Court found that the US was 80% at fault and Vulcan was 20% at fault for Porter's death.

The Court then examined whether Vulcan was entitled to limitation of liability. The Court noted that if a negligent act or condition could have been discovered by the shipowner through reasonable diligence the shipowner will be charged with knowledge. A vessel may not limit their liability if the shipowner had knowledge of the negligent acts or condition.

This Court found that Vulcan had knowledge and is not entitled to limit its liability. Vulcan should have known that a flotilla traveling through a narrow channel warranted a lookout.

The Court then examined whether Vulcan was entitled to contribution. First however, the Court had to determine whether the US had effectively waived their sovereign immunity. However, this Court found thet US has not waived its sovereign immunity to Vulcan's claim. Vulcan had no relationship with the government prior to the collision. Moreover, a trial in a case such as this would involve second guessing military orders and would require members of the Armed Services to testify in court to each other's decisions and actions.

This Court found Vulcan Materialls to be jointly and severally liable for the wrongful death of Porter and granted judgment for the claimant in the amount of $1.2 million.

Comment:
Third-party indemnity suits against the US is governed by the Feres Doctrine. (Feres v. US 340 U.S. 135). Among the factors to be considered whether the indemnity suit may be brought against the US is the adverse effect on military discipline that would result if lawsuits challenging negligent orders or acts made or committed in the course of military duty were permitted.

Here, the Court found that a trial would necessarily second guess the judgment of orders committed in the course of military and involve testimony for and against the orders. As such, this Court found that the indemnity claim could not be brought against the US.

Background:
This action was brought on behalf of the estate of Wilfredo Morales Montalvo, who died aboard a floating dry dock owned by International Ship Repair and Marine Services.

Following Mr. Montalvo's death, the claimants filed a petition for pure bill of discovery, which would enable the claimant to ascertain the basis for, and proper defendant to any potential claim arising from Mr. Montalvo's death.

Claimants amended their complain asserting a wrongful death claim against International Ship. International claimed exoneration from, or limitation of, liability for any and all loss, damage, death, injury, or destruction relating to the death of Mr. Montalvo.

Claimants moved for summary judgment asserting that the dry dock was not a "Seagoing vessel" as defined by the Limitation Act, (2) International Ship's action was not timely filed and (3) International ship had privity or knowledge of negligent conditions.

Issue:
Did this Court grant claimant's motion for summary judgment holding that International Ship could not invoke a limitation of liability?

Held:
Claimants argued that the dry dock was not a vessel as defined by the Limitation Act. They argued that the primary use was a stationary structure and a mere extension of the land, it possessed no means of self-propulsion, steering, and is not suitable for practicable navigation/transportation and that the drydock could theoretically provide transportation if towed but that it was not fit for navigation or transportation.

This Court found that the claimant failed to show the absence of genuine issues of material fact whether the dry dock is a "vessel" under the Liimitation Act. The testimony relied upon by the claimant did not establish either that the dry dock is not suitable for practicable navigation or transportation or that it is not practically capable of maritime transportation.

Second, claimants argued that International Ship failed to respond timely and assert its limitation. However, this court found that claimants failed to send any latter that constituted a written notice of claim. Neither letter sent to International demanded a right or supposed right, blamed International Ship for Mr. Montalvo's death, or demanded that International Ship provide something due to the claimant.

Finally, because Mr. Mantalvo was not an employee of International Ship, he was not a member of the class sought to be protected under OSHA regulations. Therefore, International Ship's violation of an OSHA regulation failed to establish negligence as a matter of law.

Accordingly this Court denied claimant's motion for summary judgment.

Comment:
Important in a Limitation action by a defendant is the timeliness requirement. After receiving written notice of a claim the owner of a vessel has six months to sue under the Limitation Act.

Whether a writing constitutes a "written notice of a claim" can be examined by two separate tests. (1) Notice is sufficient if it informs the vessel owner of an actual or potential claim which may exceed the value of the vessel and is subject to limitation. And under the second test a writing (1) Must demand a right or supposed right, (2) Blame the vessel owner for any damage or loss and (3) Call upon the vessel owner for anything due to the claimant.

Steve Gordon

Background:
Plaintiff, David Collier, brought this action against employer Ingram Barge Co. under the Jones Act and LHWCA, Longshore Harbor Workers' Compensation Act.

Collier alleged he is a seaman who worked for Ingram as a crew member and has sued Ingram for negligence under the Jones Act, unseaworthiness under general maritime law, and §905(b) of the LHWCA.

Collier began working as a tankerman trainee for Ingram. Collier reporting to Calvin Hall who worked in an office on shore, Collier was responsible for servicing Ingram's line boats by providing them with fuel, lubricants, and water. Collier performed these duties from fuel flats which stored gasoline, diesel, lube oil, and potable water.

Collier was allegedly injured when he tripped over a lock line on the deck of Ingram's fuel flat.

Ingram moved for summary judgment.

Issue:
Did this Court grant Ingram's motion for summary judgment?

Held:
First, Ingram argued that Collier was not a "seaman" under the Jones Act and therefore cannot recover for unseaworthiness under general maritime law. Moreover, Ingram argued that Collier alleged only employer negligence under the LHWCA which there is no recovery.

Specifically, Ingram argued that Collier did not have a substantial connection to the vessel in terms of duration and nature. Ingram argued that his duties were land-based and that he was not exposed to the perils of the sea. Ingram countered arguing that his duties as a tankerman trainee exposed him to maritime hazards on a regular basis.

Ingram further contended that Collier was not a seaman because he slept at his home on shore and never aboard any of Ingram's vessels. The fuel flats were "floating service stations" and provided a service that were usually provided dockside.

Collier, on the other hand, asserted he is a seaman. He was told he was a crewmember and that his loyalty was to the vessels and that he was paid daily like the crewmembers of Ingram's line boats. Moreover, he only performed minor shore-side duties on rare occasions. Collier estimated 60-70% of his services were performed while being exposed to maritime hazards associated with snapping lines, being knocked over, or falling overboard.

Ultimately this Court found that there were genuine issues of material fact whether Collier was a Jones Act "seaman".

Second, Ingram argued that under S905(b) of the LHWCA, it could not be sued for negligence as an employer. Ingram asserted that Collier's allegations are claims of employer negligence and not recoverable under 905(b) which provides for recovery from a negligent vessel owner. Ingram further stated that Collier admitted in his deposition that the injury occurred during the daytime and he could have seen the lock line if he had looked down and therefore, the turnover duty was  not breached.

Collier countered arguing that Ingram did not exercise ordinary care to make sure the vessels he was working aboard were reasonably safe to work upon and therefore Ingram breached their turnover duty as a vessel owner.

Ultimately, this Court recognized that vessel owners can be liable for failing to keep the work area free from debris or other hazards and that there was a genuine issue of material fact whether the line Collier tripped on was obvious or could have been anticipated by a reasonably competent longshoremen (who was a "trainee").

Accordingly this Court denied Ingram's motion for summary judgment.

Comment:
Whether each side has "better" or "more credible" established evidence is not determinative whether a motion for summary judgment will be granted.

Summary Judgment is rarely granted in negligence cases and whether the defendant's duty was breached is a question of fact. As such, a motion for summary judgment asserting that the plaintiff has not introduced any evidence creating a genuine issue of material fact, will usually be denied.

Steve Gordon  

Background:
Plaintiff, Joseph Collick, brought this action under general maritime law against defendants Weeks Marine (former employer) and Haztek Inc. Collick also moved to enjoin Weeks from failing to pay him maintenance and cure.

Collick worked for Weeks as a marine construction worker. His first project involved construction of a pier. Weeks was assigned to a particular crane barge. While Weeks employees on the barge were using the crane to position a heavy piece of concrete , the concrete got hung up on a piece of rebar protruding from another piece of concrete.

Weeks' supervisors directed him to stand on a five-inch wide section of concrete suspended from the crane and use a tool to bend the rebar out of the way. The tool slipped off the rebar and Collick fell 12-15 feet to the deck of the pier. As a result Collick injured his right ankle.

Weeks began to pay medical and wage benefits under the LHWCA, Longshore Harbor Workers' Compensation Act. Collick filed a claim to recover compensation benefits from Weeks with the Department of Labor and listed his occupation as a dockbuilder.

Collick then brought this action stating he was a seaman and asserted claims under the Jones Act and general maritime law. Weeks then discontinued paying LHWCA benefits to Collick after he brought this action based on the question whether he was a Jones Act seaman, precluding him from coverage under the LHWCA.

Collick also claimed that Weeks' failure to pay maintenance and cure has severely ruined his financial life and worsened his condition. Moreover, both parties disagree on the proper method of treating the ankle and Weeks has conditioned maintenance and cure payments upon Collick entering into a rehabilitation program asserted by Weeks.

Issue:
Did this Court find that Weeks was a Jones Act seaman and also enjoin Weeks from failing to pay maintenance and cure?

Held:
Collick claimed that because he was physically located on the barge about 75% of the time while he was at work, that it was sufficient to conclude he was a Jones Act seaman. Moreover, Collick, on a daily basis, would assist in moving the barge by handling lines from tugboats and mooring the barge to the pier.

However, Weeks' supervisor testified that Collick's work occurred almost exclusively on the pier and estimated Collick spent 90% of his time on the pier, not the barge. Collick countered that the testifying supervisor was not even around most of the time and did not watch Collick and his crew everyday.

This Court, in light of the evidence presented, preliminarily found that Collick spent a substantial amount of time physically on the barge and therefore, continued to examine whether Weeks should be enjoined from failing to pay maintenance and cure.

The Court first examined the likelihood of Collick's success in showing he is a seaman entitled to maintenance and cure under general maritime law. This Court ultimately found because he was regularly and consistently assigned to work on a particular barge, the nature of the work included assisting in handling lines to move the crane barge several times per week, that Collick has shown a reasonable probability of success in showing that his connection to the barge was substantial in duration and nature.

Second, the court considered whether Collick was likely to show entitlement to maintenance and cure benefits. Weeks contended that Collick has reached maximum medical improvement, however, this Court found that this lacked merit because Collick's overall condition had worsened.

Third, this Court examined whether Collick has made a clear showing of immediate irreparable injury. Here, the Court found that because Collick has fallen into dire financial straits due to discontinuation of payment of benefits and his inability to work as a dockbuilder then Collick has shown irreparable injury if the Court did not enjoin Weeks from failing to pay maintenance and cure.

Fourth, this Court also found that Weeks failed to show substantial harm if they are required to pay maintenance and cure. Simply put, if the court eventually finds that Collick is a seaman, the maintenance and cure payments are substantially lower than those benefits being paid under the LHWCA.

Finally, this Court found, recognizing the strong public policy entitling seaman to maintenance and cure, supports a finding that paying Collick his maintenance and cure furthers a public interest.

Accordingly, this Court granted the motion for a preliminary injunction and ordered Collick to submit a detailed declaration explaining his maintenance expenses and supporting documentation regarding his financial condition.

Comment:
Ultimately, the Court did not determine whether Collick was a seaman entitled to maintenance and cure benefits. It did, however, find that Collick has established a likelihood that he would be successful on this issue and therefore, considered his preliminary injunction to enjoin Weeks from failing to pay maintenance and cure. (Ordered Weeks to pay maintenance and cure)

In determining whether to issue a preliminary injunction the Court considers the following: (1) Whether the movant has shown a reasonable probability of success on the merits (2) the movant will be irreparably injured by denial of the relief (3) Whether granting preliminary relief will result in greater harm to the nonmoving party and (4) Granting the preliminary is in the public interest.

Steve Gordon

Background:
Plaintiff, Marshall Graham, brought an action under the Jones Act and unseaworthiness against employer, Offshore Specialty Fabricators, and barge owner, Cashman Equipment Corporation for injuries sustained while working aboard a tugboat as a deckhand.

Graham worked for Offshore as a deckhand on a tugboat. Offshore had leased a large deck barge from CEC (Cashman Equipment Corp.). Plaintiff's tugboat was returning CEC's deck barge at the expiration of its lease and in order to tie up the deck barge, two other barges had to be moved. While Graham was walking on the deck of one of the barges, he fell partially into one of three unmarked holes while attempting to help a co-worker, Craven, who had also fallen in another hole.

Graham filed Jones Act and unseaworthiness claims against Offshore and negligence and unseaworthiness claims against CEC. Graham claimed his knee, neck, and lower back were injured. A jury found both defendants liable and that Graham was 15% contributory negligent.

The jury awarded Graham for past physical and mental pain and suffering, loss of enjoyment of life, past loss of income, and losses of future earning capacity.

Ultimately, CEC's liability was limited to $160,000, the value of the deck barge. Both CEC and Offshore appealed and Graham answered the appeal and cross appealed.

Issue:
Did this court affirm or reverse/vacate the judgment of the lower court?

Held:
Offshore claimed that CEC was improperly entitled to limitation of liability alleging that the deck barge was no longer a "vessel" when the accident occurred and notwithstanding the "vessel" status, CEC failed to meet its burden of showing that it had no "privity or knowledge of the condition that caused Graham's injury. Offshore also appealed the amount of past lost wages and loss of future earning capacity awarded to Graham.

CEC contended that the jury's answers to interrogatories were inconsistent and therefore, the court erred in denying its motion for a new trial or judgment notwithstanding the verdict.

Graham asserted that CEC should not be allowed to limit its liability and that the general damage award was reasonable and supported by evidence.

Graham and Offshore argued that CEC did not satisfy its burden of proving a lack of privity or knowledge of the dangerous condition that caused Graham's injury. CEC bought the deck barge from a company owned by Lee Dragna. Dragna testified that prior to CEC buying the barge, he walked the deck with CEC's president. Moreover, the barge had been sent to another company to remove and scrap a crane leaving a 26 foot in diameter hole prior to delivering it to CEC.

CEC's president testified that he generally does conduct "eyeball" inspections before making a purchase and that he viewed the vessel from the bank before the crane was removed and noticed no holes. This Court ultimately found that the jury erred in finding that CEC had no privity or knowledge of the dangerous condition on the deck of the barge. The Court found that the CEC's operations manager, who warned about the hole in the deck, was enough to impute knowledge/privity to CEC and therefore preclude limitation.  The hole was large and obvious in daylight and could have easily been noticed through a simple inspection.

CEC argued that the jury erred in assigning any fault to it. The Court noted that a vessel owner has a duty to take reasonable care to ensure its vessel is fit for its intended use and free from hazardous conditions that might cause injury to those on board. This Court was satisfied that the president of CEC knew the crane of the barge was being removed in order to turn it into a deck barge and that as a result, the deck of the barge would not be left in tact. In light of this, and the fact that CEC failed to inspect the vessel prior to deliver, but after the crane was removed, persuaded this Court to find that CEC was properly found liable for Graham's injuries.

Accordingly, this Court reversed the portion of the judgment limiting CEC's liability and affirmed all other aspects of the judgment.

Comment:
If an injured seaman establishes that negligence or unseawothiness caused his injuries, the vessel owner has the burden to establish a lack of privity or knowledge of the dangerous condition that caused the injury.

A corporate shipowner may be deemed to have constructive knowledge if the unseaworthy or negligent condition could have been discovered through the exercise of reasonable diligence.

The corporate owner is required to overcome a presumption that not only its officers and managers had actual knowledge but that they should have known of the unseaworthy or negligent condition that caused the injury.

Steve Gordon  

Case Name: Michael H. Lee v. Abdon Callais Offshore, LLC.
Date Decided: December 23, 2009
Court: U.S.D.C. Eastern District of Louisiana
Judge: Judge Berrigan
Citation: 2009 WL 5215313 (E.D.La.)

Background:
Before this Court was a Motion to Strike Jury Request made by plaintiff, Michael Lee, against defendant, Abdon Callais Offshore LLC's opposition.

Lee filed the original action for injuries sustained against Abdon Callais under general maritime law. In his original complaint, Lee asserted admiralty/maritime jurisdiction and requested a jury trial. Abdon also similarly requested a jury trial. Lee then filed this motion to strike Jury Request and filed a motion to Correct/Amend his Complaint. The Magistrate judge granted Lee's Motion to Amend/Correct Complaint to designate this action as proceeding under Rule 9(h) of the Federal Rules of Civil Procedure.

Issue:
Did the Magistrate judge correctly deny defendant's request for a jury trial in an amended complaint filed pursuant to rule 9(h)?

Held:
The Magistrate relied upon Becker v. Tidewater (405 F.3d 257) which held that LHWCA and negligence claims did not alter the exclusion of jury trials for admiralty suits. Moreover, despite the existence of diversity jurisdiction in Baker, the plaintiff, Becker, controlled the complaint by not filing under diversity jurisdiction but rather under admiralty jurisdiction.

Accordingly, in light of the Baker court, this Court granted Lee's motion to strike defendant's demand for a jury.

Comment:
This case illustrates the concept that the plaintiff, is the "master of his/her complaint". If a plaintiff chooses to bring an action under federal diversity jurisdiction, then both parties have a right to request a jury.

However, if the plaintiff chooses to assert the action under the federal court's admiralty/maritime jurisdiction then the defendant does not have the right to a jury regardless of whether the action could have been brought under diversity.

Steve Gordon  

Background:
William Hart, brought an action under the LHWCA, Longshore Harbor Workers' Compensation Act, for hearing loss sustained while working for employer, defendant, Matson Terminals, Inc. Before this Court is Hart's appeal of a decision made by the Benefits Review Board, BRB, affirming the order of an Administrative Law Judge awarding benefits for his hearing loss under the LHWCA.

Issue:
Did this Court affirm the BRB's decision to affirm the ALJ's finding that a 1996 audiogram was the best measure of Hart's work-related hearing loss?

Held:
Hart contended that the ALJ erred in finding that the 1996 audiogram (ear exam) was the best measure of his work-related hearing loss, but not the two audiograms performed after Hart's retirement.

The ALJ found that the audiograms after Hart's employment did not suggest significantly increased hearing loss following his termination. The ALJ credited doctor's testimony that hearing loss becomes more subtle after extended exposure to noise and that once Hart was removed from his noisy environment, further loss was not due to earlier exposure.

Under the LHWCA, an audiogram can be found to be presumptive evidence, and the LHWCA further allows the ALJ to determine what evidence is most probative in determining benefits. Accordingly, based upon the evidence presented before the ALJ, this Court found that there was no clear error made by the ALJ in finding that the 1996 audiogram was the most reliable measure of Hart's hearing loss.

Comment:
This case illustrates the deference given to the Administrative Law Judge's findings in an employee benefits claim. After examining evidence, the ALJ will submit it's findings of fact to the Benefits Review Board, BRB, which then makes a ruling on the benefits owed, or not owed, to the employee. The employee or employer, may then appeal the BRB's findings in light of possible error(s) made by the ALJ or the BRB.

Steve Gordon  

Background:
Plaintiff, Steve D. Landers, brought this action against the owner/operator of an offshore supply boat, Kevin Gros Offshore and unknown insurance companies. Landers brought this action for Seaman's Damages under general maritime law and the Jones Act. Landers also brought this action for maintenance and cure.

Landers alleged that the vessel, M/V ROSEANNA, was docked and a gangway connected to the shore. Lander claimed he was assigned to the task of removing the gangway from the vessel and he stood on the vessel and pushed the gangway to the dock. A broken piece of the gangway caught on the dock causing him to sustain a back inury.

Landers added Bollinger Shipyards as a defendant in a second supplemental and amending petition for Seaman's damages. In his claim, Landers alleged that the M/V ROSEANNA sustained in her hull next to an interior water tank while sailing in the Gulf of Mexico. Moreover, Landers alleged that Kevin Gros scheduled a trip to Bollinger shipyard to examine the hole, and according to Landers, its employees placed the gangway between the vessel and the dock.

Landers claimed when the ROSEANNA was ready to depart, Bollinger employees failed to timely remove the gangway and that he and another crew member attempted to do so. Landers further alleged that as the gangway slid away from Bollinger's dock, it stopped and sprang back causing him to sustain a back injury.

Landers settled with Kevin Gros and the insurance companies who were dismissed from this action.

Landers then filed his Third Supplemental and Amending Petition for Seaman's Damages adding Bollinger Amelia Repair LLC (not Bollinger Shipyard) claiming negligence under general maritime law. Landers claimed that Ameila repair was negligent in using a defective gangway, failed to warn of a hidden defect in the gangway, failed to remove the gangway from the vessel in a timely manner, failed to secure the gangway between the vessel and the dock as mandated by the Code of Federal Regulations and the Bollinger safety manual, and for other maritime negligent acts and omissions to be proven at trial.

Bollinger Amelia filed a motion for summary judgment arguing that it did not owe a duty to Landers to provide him a means of accessing the vessel, provided a reasonably safe dock as required by Louisiana law, did not own the gangway at issue, that the gangway was safe, and pursuant to the Pennsylvania Rule, the vessel owner is strictly liable for its violation of a statute.

Issue:
Did this Court grant Amelia's motion for summary judgment?

Held:
Bollinger Amelia asserted it did not owe a duty to the plaintiff under general maritime law, specifically that the vessel owner has the non-delegable duty, under the doctrine of seaworthiness, to supply a safe means of accessing the vessel. Landers countered asserting that under general maritime law, Bollinger, as the dock owner, owed a duty to provide a safe berth. Once Bollinger undertook to provide a gangway, it assumed a duty to provide a safe gangway, according to Landers.

This court noted that the vessel owner's duty to provide a safe means of accessing vessel extended to the gangway regardless of who supplied, owned, or controlled it and thus, absent a maritime status between the parties a dock owner's duty to a vessel's crew member arises under state law. This Court found no maritime relationship between Landers and Bollinger and accordingly, any duty owed to Landers by Bollinger Amelia arises under Louisiana law.

Bollinger however, argued that Landers alleged that he was injured by a defective gangway for which the vessel owner is responsible, and that (2) it did not own the gangway allegedly causing the injury and (3) the gangway was not defective.

However, this Court found that Louisiana sufficiently stated a cause of action under Louisiana law. Landers' petition clearly stated that he sought relief against Bollinger Amelia for back injuries he sustained by pushing the gangway. Moreover, Landers sufficiently alleges that the gangway was defective and that Bollinger's employees placed it between the dock and the vessel.

However, under Louisiana Law, tort claims are prescribed one year from the day of the injury and because Landers' filed this claim nearly 2 years after his injury, his claims under Louisiana law were prescribed. Accordingly this Court granted Bollinger's motion for summary judgment.

Comment:
It is important to understand that different states would/could have treated this action differently. Here, there was no maritime status between the plaintiff and defendant, dock owner. Absent a maritime status between the parties, the duty a dock owner owes to crew member(s) is governed by state tort law.

Louisiana's "statute of limitations" under the tort claim, was 1-year after the date of injury. Some states may have a greater amount and therefore, this claim could have seen a different result under another state's law.

Accordingly it's important to file a claim with reasonable promptness after an injury occurs to avoid this kind of result.

Steve Gordon

Background:
Plaintiff, Justin Endicott, had a fish cart crush his arm while he was working in the freezer on one of his employer's, defendant Icicle Seafoods, ships. Endicott brought this action seeking compensation under the Jones Act and unseaworthiness.

Endicott brought this action in King County Superior Court and successfully struck down Icicle's jury demand. Following a bench trial the judge ruled for Endicott on both Jones Act negligence and unseaworthiness claims awarding Endicott damages and prejudgment interest.

Icicle appealed the verdict and prejudgment interest, the Court of Appeals certified this action to this Court, the Supreme Court of Washington.

Issue:
Is Icicle Seafoods, the defendant, entitled to a right to a trial by jury?

Held:
Icicle challenged the underlying judgment on four separate grounds. (1) Icicle claimed it had a right to a jury trial of Endicott's claim (2) Icicle contended that as a matter of federal law, the trial court did not have the discretion to award Endicott prejudgment interest. This Court only considered these first two contentions.

Icicle claimed it had a right to demand a jury trial of Endicott's claims, Endicott countered arguing that the Jones Act provided him a substantive right to determine whether the case is heard by a judge or a jury.

The Jones Act, provides a seaman injured in the course of employment, the right to bring a civil action at law, with the right of trial by jury, against the employer. By its terms, the Jones Act allows a seaman to sue at law, but not in admiralty, to recover for employers' negligence.

This Court looked to a previous case interpreting the right to trial by jury under the Jones Act, in Pan R.R. Co. v. Johnson (264 U.S. 375), there, the Supreme Court interpreted the Jones Act to allow both negligence suits in both admiralty and at law, the admiralty suit bringing a bench trial while the suit at common law would yield a jury trial.

However, this Court noted that the Johnson Court did not decide whether the plaintiff's power to elect between different forms of action is a (1) statutory right to elect the mode of trial (jury v. non jury) or (2) the right to select the jurisdictional basis of trial (at law v. in admiralty jdx). If is an at law v. admiralty determination, the right to a jury trial flows procedurally from the choice of jurisdiction.

This Court recognized that there is a split between the Ninth Circuit and California on one side and the Fifth, Seventh, Louisiana, and Illinois on the other side.

Endicott contended that the Ninth Circuit's "statutory" interpretation is the correct interpretation. This interpretation, in Craig v. Atl. Richfield Co. (19 F.3d 472), recognizes that the plaintiff has the option of maintaining an action at law with the right to trial by jury and that because the defendant is not mentioned, then the plaintiff holds the substantive right to elect the mode of trial. Endicott also points to other cases, in California, that denied the defendant(s) a jury trial right in Jones Act and general maritime suits filed in state court under the saving to suitors clause.

Icicle, however, claimed that the 5^th and 7^th's "jurisdictional" (not substantive) position applied to the Jones Act and that Endicott's Jones Act election is limited by the jurisdictional basis of trial (in admiralty v. at law).

This Court found that federal case law, interpreting the Jones Act, lead to the conclusion that the jurisdictional interpretation is correct, that Endicott's election exists solely as to the jurisdiction on which trial is based upon.

This Court noted that once a plaintiff has chosen to bring an action against his employer under the Jones Act, than he/she has elected to proceed at law against their employer. As such, the right to a trial by jury flows from this election, both the defendant and plaintiff have the right to a trial by jury.

This Court then examined the Jury Trial Right in Jones Act Cases under the Washington Constitution. Under the Washington Constitution, a right to a jury trial is based upon a two-step approach. (1) First, determine the scope of the jury trial right as it existed in 1889, the State constitution's adoption and (2) determine the causes of action which the right attaches.

Under the first step, the Washington Constitution allows the determination of damages, in an action at law, within the scope of a jury. The second step examines whether the type of action, undertaken by the Plaintiff, is analogous to one available at law. This Court found that the fact finding function of the jury in a Jones Act case is to determine damages for negligence.

This Court ultimately held that the right to a trial by jury is based upon the jurisdiction method in which the plaintiff elects to bring the action. Once the plaintiff, Endicott, had selected a suit at law in state court, state procedural law determined whether the parties may demand a jury trial. Because the Washington Constitution affords both Jones Act litigants a jury trial, this Court found that failing to allow Icicle Seafoods to assert their right to a jury trial was grounds for vacating the judgment.

Second, Icicle argued that Endicott was not entitled to prejudgment interest because since it is unavailable under FELA, it should also be unavailable under the Jones Act.  However, this Court noted if the trial is by jury, the case is analogous to a federal suit at law, and prejudgment interest is unavailable, however, if tried by the bench, the case is analogous to a federal suit in admiralty and prejudgment interest may be awarded. However, on remand, because Icicle will likely demand a jury trial, prejudgment interest will not be available under the Jones Act.

Comment:
This case illustrates a clear split between the 9^th Circuit, interpreting the Jones Act as allowing the "substantive" right to select a trial by jury (thus, allowing only the plaintiff to assert the right to a jury trial), and the 5^th and 7^th Circuits, interpreting the right to a jury trial under the Jones Act as flowing incidentally from either choosing to bring the action in admiralty or at law.

Simply put, if an employee chooses to sue their employer for negligence under the Jones Act then they have elected to bring their action at law and not under admiralty jurisdiction. As such, the right to a trial by jury flows from state procedural law. Usually, states will allow both the plaintiff and defendant to elect a trial by jury. The right to trial by jury is not a substantive right conferred exclusively to the plaintiff by the Jones Act.

Steve Gordon  

Background:
Eugent Ledet, while working on the Mississippi as a deckhand for Crescent Towing, was struck and killed by a parted mooring from the M/V BELO HORIZONTE. Crescent asserted claims against the BELO and siblings of the decedent intervened and filed claims against Crescent for relief under Jones Act and general maritime law. Crescent Towing sought dismissal of intervenors' claim of "loss of society" damages.

Issue:
Did this Court find that intervenors could recover for loss of society damages?  

Held:
Crescent argued that the surviving relatives of a seaman cannot recover loss of society damages because at the time of his death Mr. Ledet was a Jones Act seamans working in Louisiana territorial waters.

The intervenors argued that they are available because such non-economic damages are recoverable if the surviving relatives were financially and physically dependent upon the seaman prior to his death.

This Court, relying on Milesv. Apex Marine Corp. (498 U.S. 19), which determined that loss of society damages were not available under general maritime law in a wrongful death action brought by the mother of a Jones Act seaman stabbed to death while aboard a vessel docked in state territorial waters.

The intervenors contended that Miles applied only to claims by nondependent survivors and this Court disagreed for the following reasons.

For one, the Court in Miles did not expressly limit its decision to claims by nondependent survivors. Further, the Supreme Court in Miles looked to existing jurisprudence at the time Congress enacted the Jones Act. One such case, Vreeland (227 U.S. 33), a widow of a deceased employee could only recover for pecuniary loss in a FELA claim.

This Court found no basis for concluding that claims by dependent relatives of a Jones Act seaman, asserted against a seaman's employer, are exempt from the proscription recognized in Miles against loss of society damages in wrongful death actions under general maritime law.

Accordingly this Court granted Crescent's Motion for Summary Judgment

Comment:
Recovery for wrongful death under general maritime law and the Jones Act are limited to pecuniary losses only. That is, those losses that are actual such as loss of care, loss of support, and loss of services. Under the Jones Act, pain and suffering of the decedent after the injury and before death is recoverable.

Steve Gordon  

Background:
Plaintiff, Taner Oran, brought this action against Fair Wind Sailing Inc. and BFM Sailing , as a result of injuries he sustained when he slipped and fell on bench cushions aboard a 45-foot catamaran owned by BFM Sailing and operated by Fair Wind.

Oran called Fair Wind to ask about a sailing class they offered.  Oran agreed to enroll in the class and Fair Wind sent release forms to Oran. Both defendants contend that no one is allowed to participate in any of Fair Wind's classes without executing the release agreement and terms and conditions agreement, both sent to Oran.

Oran refused to sign the release, and upon attempting to board the Hound Dog, Oran was denied. Oran then asked Mr. Bello, Fair Wind's president, to which Mr. Bello said no, that he could not board without providing the signed release form. Oran then handed Mr. Bello a piece of paper and was permitted to board the vessel.

Oran, however contended that he was not prevented from boarding nor was he told he had to sign a release. Additionally, according to Oran, he did not present a release to Mr. Bello.

According to Oran, he and his wife arrived in St. Thomas and was allowed to board with his wife upon asking the captain. Once the sailing program was underway, Oran claimed he performed "traditional seaman duties" consisting of "assisting in the actual sailing, navigating, operation and maintenance of the vessel" as instructed by the Captain. After securing a hatch, Oran slipped on the ship's bench cushion and fell.

Oran brought an action for negligence for failure to have proper fastening devices or failing to warn of the bench cushions' condition rendering the Hound Dog unseaworthy.

Both defendants have filed Motions for Summary Judgment.

Issue:
Did this Court grant defendants motion for summary judgment?

Held:
In deciding the Motion this Court determined (1) what law to apply to evaluate the validity of the Release, (2) whether the release is valid (under that law), and (3) if it is valid, what effect it has on the negligence and unseaworthiness claims to both Fair Wind and BFM.

This Court found that this case invoked admiralty jurisdiction and required the application of federal admiralty law. First, the incident occurred aboard the sailing vessel in navigable waters off the coast of St. Thomas. Also, this Court found that ocean-going sailing schools are engaged in maritime commerce because they provide recreational services on navigable waters. Moreover, this Court found, that the Hound Dog was engaged in sufficient maritime activity because it was either sailing or docked in navigable waters.

Second, this Court determined whether Oran signed the release. This Court found that Oran did in fact admit to signing the release, and as such, this Court then determined whether the release was valid under federal maritime law.

This Court found that the release was valid because Oran failed to present any evidence or fraud. Oran, however, further argued that the release was invalid.

First, Oran claimed the release was ambiguous. This Court found that the release was unambiguous and contained explicit language providing that Oran assumed all responsibility of any injury he might sustain and that he agreed to the release from liability Fair Wind and its officers, agents, or employees.

Second, Oran contended that his failure to read or understand the release created a genuine issue of material fact. However, this Court found that whether Oran understood the release prior to signing it, was not a material factual issue and had no bearing on the release's enforceability.

Third, Oran argued that the release did not protect the vessel owner, BFM. This Court however, found the release was effective to BFM because Fair Wind served as BFM's agent in preparing and requiring the release. The Court also recognized that seaman's contracts are held under a greater level of scrutiny under general maritime law. However, despite the higher scrutiny, the release remained effective because Oran acted freely and fairly executed the release. Moreover, Oran had obtained a Masters degree in Political Science.

Finally, Oran asserted that he and his wife were passengers and that they were being transported within the meaning of 46 U.S.C. §30509, of the Jones Act. This section states that the owner/master/manager/agent of a vessel transporting passengers cannot include a regulation or contract a provision limiting the liability of the owner for personal injury or death caused by the negligence or fault of the owner, or of the owner's employees/agents. This Court disagreed with Oran and stated that the Hound Dog was not transporting passengers but rather it was a recreational vessel used for sailing instruction purposes.

Accordingly this Court, finding the release effective, granted defendants' Motion for Summary judgment.

Comment:
Recreational sailing courses are popular among the Virgin Islands and other tropical destinations. Typically, however, in order to participate in the course, the vessel owner/operators will require "students" to sign a release. However, to find a release invalid, the plaintiff may be able to show his/her consent was obtained through fraud or overreaching.

Steve Gordon  

Background:
John E. Mancini, solely for the benefit of his attorney, petitions for review of an order of the Benefits Reviewa Board ("The Board") which, under the Longshore Harboer Workers' Compensation Act, LHWCA, awarded attorneys fees at the hourly rate of $250.00.

Mancini's attorney contended that the requested rate of $435.00 per hour is a reasonable market rate for comparable services by attorneys of comparable experience and expertise in Washington D.C.

Issue:
Did the lower court err in awarding plaintiff's counsel an hourly rate of $250.00 per hour opposed to the requested hourly rate of $435.00 per hour?

Held:
Counsel for the prevailing party is to be awarded reasonable attorney's fees as typically calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.

The Board can use rates outside the forum if local counsel was unavailable either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle the case properly.

In order to consider another market, the Board should have considered whether it was necessary for Mancini to find counsel in the national market, outside of DC.

This Court also found that the Board incorrectly relied upon other cases brought under the LHWCA in the jurisdiction in determining the fee. The Court notes this is incorrect because there is no private market for attorney's fees under the LHWCA because LHWCA attorneys cannot negotiate or enter into fee agreements with clients.

This Court found that Mancini's counsel introduced sufficient evidence that the $435.00 rate was reasonable in Washington D.C. for attorneys at the highest experience level.

Accordingly this Court vacated the district court's decision and remanded the issue for further proceedings.

Comment:
Under §928(a), of the LHWCA,  the attorney of successful claimant is entitled to attorney's fees if the employer declines to pay any compensation. Moreover, an employee may be entitled to fees under §928(b) if, after an informal conference,

• The employer rejects the recommendations of the Board or the commissioner
• The employer tenders an amount in lieu of the recommendation (lower than what's recommended)
• He employee rejects the amount tendered by the employer
• The employee hires an attorney - and
• Employee obtains an amount greater than the amount tendered.

Background:
Plaintiff, Noel Butcher, filed an action under the Jones Act for injuries suffered while working for defendant, Superior Offshore International, Inc.  The district Court granted summary judgment determining that Butcher was not a Jones Act seaman.

Both Triumph Marine Inc and Offshore Lifeboats, LLC ("Triumph" collectively) appealed following the granting of summary judgment.

Superior Offshore challenged Triumph's standing to appeal.

Issue:
Does Triumph, third party defendants, have standing to appeal a determination made that the plaintiff, Butcher, was not a Jones Act seaman?

Held:
Superior asserted that only a seaman's employer or personal representative may appeal in a case involving a determination of Jones Act seaman status.

However, this Court noted that this is incorrect. Triumph's standing depends on whether it has suffered an actual or threatened injury that may be redressed on appeal. The District Court's determination that Butcher is not a Jones Act seaman would implicate operation of the LHWCA, Longshore Harbor Workers' Compensation Act, which in turn could affect Triumph's indemnity claims.

Second, this Court determined whether Butcher's connection to vessel MAGGIE was substantial in duration and nature. This Court found that it was not, Butcher was a painter/blaster and it is undisputed that all the painting and blasting work was done on a fixed platform, not a vessel.

This Court found that Butcher's occasional appearance on board the vessel was incidental and minor in nature. Moreover, this Court did not count the time Butcher spent eating meals and breaks aboard the vessel in determining if he had spent 30% of his time on board the vessel.

Accordingly, this Court affirmed the District Court's ruling that Butcher was not a Jones Act "seaman".  

Comment:
In determining whether someone is a Jones Act "Seaman" generally, that person must spend, as a rule of thumb, approximately 30% of their time aboard the vessel in order to have a connection substantial in duration. Here, it is important to note, the Court found that time spent eating meals and general "break" time is not credited towards the 30%.

Steve Gordon

Background:
Plaintiff, John Shields, filed this tort action against the United States claiming that he suffered extensive injuries on the part of the US, the operator of the U.S.S. Blue Ridge. Both parties agreed that Shields was covered under the Longshore Harbor Workers' Compensation Act, LHWCA.

The U.S.S. Blue Ridge is a military vessel owned and operated by the United States. Sometime on or around May 18, 2006, a fan room aboard the vessel became flooded with human waste and sewage from a nearby restroom facility. Human waste leaked into the Fleet Intelligence Center and directly onto computer equipment.

After cleaning up the mess, Navy personnel attempted to "re-energize" the computer in the center but it failed to operate.

Charles McKinstry, an employer of Lockheed, dispatched Shields to perform repair work on the computer equipment. Shields arrived on the Blue Ridge and met with a Lieutenant Commander before beginning work on the damaged equipment. The Lieutenant informed Shields the equipment was safe and clean enough for work.

While working, Shields was scratched on his right arm by a plastic zip tie holding cables together inside the computer.

A few days later Shields bumped his arm again and it began to swell, eventually Shields was diagnosted with compartment syndrome and severe cellulitis. A pathologist indicated that it was the result of human waste contamination.

The US filed a motion for summary judgment claiming it was not liable for Shields's injury.

Issue:
Did this Court grant the US's motion for summary judgment?

Held:
Under the LHWCA, there are (3) distinct duties ship owners owe to ship repair workers that, if breached, may result in a finding of negligence under 905(b) of the LHWCA.

Under the first duty, the turnover duty, the US argued that it is not applicable to Shields claim and it has not been violated. The US claimed that because Lockheed supervisors were made aware that human waste spilled into the computer room, and that the cleaning of the computer room did not resolve the operational problem it discharged its duty to warn Shields of any latent hazard.

Shields claimed that the active control duty, not the turnover duty applied to his claim. Under the active control duty the vessel must have substantially controlled or been in charge of (1) the area the hazard existed (2) the instrumentality which caused the injury or (3) the specific activities the stevedore undertook.

However, this Court noted that regardless of whether the turnover or active operations duty applied to Mr. Shields' claim is irrelevant because determining that he could prevail on any theory is enough to overcome summary judgment.

Shields has offered sufficient evidence to create a genuine issue of material fact regarding which duty applied, this Court found. Shields submitted depositions of his supervisor at Lockheed stating that Lockheed technicians are subject to restrictions while aboard Navy ships. Accordingly, requiring the technicians to report on the status of their work and check in with Navy personnel created genuine issues of fact whether the US retained substantial control over the computer equipment Shields was injured on.

Second, the Court determined whether Shields has established a prima facie case that the US breached the active operations duty imposed by the LHWCA.

This Court found that Shields presented sufficient evidence to prove a breach of the active operations duty. Importantly, the Court found that the use of water and stock detergent, not alcohol, could be considered an unreasonable failure to protect against danger from the presence of waste on the equipment.

Accordingly this Court denied the US's Motion for Summary Judgment

Comment:
Under the LHWCA "active operations duty" the plaintiff must prove the following elements: (1) The vessel appreciated, should have appreciated, or with the exercise of reasonable care would have appreciated, the condition (2) that the vessel knew or should have known that the condition posed an unreasonable risk of harm to a longshore worker, (3) that a longshore worker might reasonably fail to either discover the condition or appreciare the gravity and probability of the harm or protect himself from the danger.

Finally, the plaintiff must show that the (4) vessel failed to take reasonable precautionary or remedial steps to prevent or eliminate the dangerous condition.

Steve Gordon

Background:
Plaintiff, David L. Trachsel, brought this action to review an order by the Department of Labor Benefits Review Board, BRB, affirming an Administrative Law Judge's compensation award under the Longshore Harbor Workers' Compensation Act, LHWCA.

Traschel was working as a longshoreman for defendant, Rogers Terminal & Shipping Corporation, when he slipped, fell backwards, and injured his shoulder while loading a ship. Trachsel had surgery and his arm was in a sling for six weeks before his doctor gave him a full release to return to work.

The year before the day of his injury Trachsel earned roughly $63,000 while appearing to work 223 days, was paid for 14 holidays, and worked four holidays, leaving 10 unworked holidays.

The Administrative Law Judge concluded that holidays that Trachsel was paid but did not work should count as "work days" since Trachsel received wages for an actual day off work. On that basis, the ALJ calculated that Trachsel's weekly wage was $1,365.75.

Both parties appealed to the BRB and the BRB affirmed the ALJ's conclusion that unworked paid holidays should be included in the number of days employed under §910(a) of the LHWCA.

Trachsel petitioned this Court for review.

Issue:
Should paid, unworked holidays be included in the number of days employed under §910(a) of the LHWCA?

Held:
Trachsel argued that only days when the employee actually works should constitute days employed when calculating the weekly average formula under 910(a).

Specifically, Trachsel contended that this Court's decision in Matulic v. Director, 154 F.3d 1052, resolved this issue in his favor. Trachsel argued that because the court emphasized the phrase "actually worked" in computing disability benefits that it means that only days actually worked would count.

However, this Court in Matulic, resolved when 910(a) should be applied and not what days constituted days when so employed. Ultimately, the BRB relied upon a  Fifth Circuit case,  Wooley, 204 F.3d 616. That Court concluded that the ALJ should be charged with making findings as to whether particular vacation payments constitute a "day worked" or as "additional compensation to be added to the worker's annual wage".

Ultimately the Court in Wooley determined that vacation days, paid but not worked, counted as a "day worked" in calculating disability benefits. Additionally, this Court was satisfied this would apply to Holidays as well as vacation days.

This Court affirmed the BRB's ruling that holidays, not worked but paid, constituted a "day worked" in calculating disability benefits under 910(a).

Comment:
Under the LHWCA, a disabled worker injured in the course of employment is compensated depending on the extent of his disability and his average weekly wage at the time of injury.

Section 910 sets forth (3) methods for calculating an employee's "average annual earnings" which is then divided by 52 to determine average weekly wage.

Under 910(a), an ALJ must first determine the total income earned by the claimant in the 52 weeks before the injury, then divide that number by the number of days when so employed.

If the ALJ had ruled that paid, but not worked, holidays were not a day so employed, then Trachsel's weekly average would have risen.

Steve Gordon

Background:
This action involved a petition for review of the Benefits Review Board (BRB). Petioner, employer, Newport News Shipbuilding and Dry Dock Company, brought this appeal for review of a final order of the BRB holding that Newport News had not provided substantial evidence to rebut a presumption of compensability that the Longshore Harbor Workers' Compensation Act, LHWCA, provided once Holiday made his prima facie case of workplace related injury. The BRB also awarded Holiday's appellate counsel $250/hour down from the requested rate of $450/hour.

Holiday worked as a longshoreman for Newport News primarily as a pipefitter. While assembling metal racks at an industrial park, where he occasionally took overtime assignments, Holiday experienced back pain, reported it to his supervisor, but declined medical attention,

Holiday's duties required him to press down on a drill and bend over repeatedly to pick up the boxes, and at one point, felt his back "give out" (while working at the main yard not the industrial park) when he bent over to reach a box on the ground.

Holiday then filed a claim for total disability compensation under the LHWCA. His case was assigned to an Administrative Law Judge, ALJ, which found that Holiday sufficiently alleged a back injury when he was working in the overtime yard which was worsened by picking up a box in the main yard. The ALJ held that Holiday presented a prima facie case of compensability, creating a presumption of recovery under §920(a) of the LHWCA.

The ALJ then found evidence to rebut the presumption, first Holiday finished a weekend of overtime and returned to work despite injuring his back the first time and consistently declined medical attention.

Moreover, Holiday's supervisor testified, through a deposition, that Holiday missed one day of work but worked an entire week requiring him to bend over and lift 20-30 pound pieces of material. Finally, the ALJ relied on two responses provided by Holiday in his Claim for Compensation form, which Holiday admits to working after first experiencing back pain.

Holiday appealed the ALJ's decision to the BRB and concluded that the ALJ relied upon insufficient evidence to rebut the presumption.

The BRB did however, reduce Holiday's fee award from the requested 420 per hour to 250.

Newport News has appealed the BRB's reversal of the ALJ's holding and Holiday the reduction of attorney's fee award.

Issue:
Did the BRB err in reversing the ALJ's determination and reducing Holiday's fee award?

Held:
This Court first examined whether the three pieces of evidence the ALJ relied on in his first determination, amounted to substantial evidence.

The substantial evidence standard requires employers to put forward as much relevant factual matter in a reasonable mind that would be needed to accept, as one rational conclusion, that the employee's injury did not arise out of his employment.

Newport News argued that by proving the existence of Holiday's first back injury, in the overtime yard, which caused the same symptoms as the injury in the main yard, it provided substantial evidence that the second injury was merely a natural outgrowth of the first.

However, the BRB noted that Newport did not deny that Holiday's back materially worsened while he repeatedly bent over to pick up boxes and drill them. Accordingly this Court found that the BRB ruled correctly in determining Newport failed to introduce substantial evidence rebutting the presumption.

Holiday, on the other hand, argued that the BRB's reduction of his request of fees was improper. The rate awarded by the BRB, this Court noted, shall be based on what is reasonable and customary in the area where the services were rendered.

This Court ultimately found that an hourly rate, appropriate ten years ago, adjusted arbitrarily with no regard to the facts of the case or other factors was not appropriate today. This was how the BRB determined to reduce the fee award.

Accordingly, this Court remanded the fee determination back to the BRB to determine the correct hourly rate.

Comment:
In determining an hourly rate, the BRB must base its award on what is reasonable and customary in the area where the services were rendered for a person of the particular professional status. The BRB does have the power to set awards to its own past determinations but it must be reasonable in comparison to what other attorneys earn for similar services.

Steve Gordon

Case Name: Joseph Verga v. Rotterdam Express, et al.
Date Decided: December 1, 2009
Court: U.S.D.C. Eastern District of New York
Judge: Judge Pollack
Citation: 2009 WL 4363444 (E.D.N.Y.)

Background:
Plaintiff, Joseph Verga, brought action against defendants alleging that he suffered injuries as a result of defendants' negligent failure to inspect the vessel, known as Rotterdam Express, and provide Verga with a safe place to work.  Specifically, Verga brought this action under the Longshore Harbor Workers' Compensation Act, LHWCA, against Rotterdam Express and Hapag-Lloyd for negligence of a vessel.

Verga was employed as a longshoreman by the New York Container Terminal working on the Rotterdam Express while it was docked in NY. The vessel owner and operator wads Hapag-Lloyd of the vessel.

Defendants alleged toward the end of Verga's shift, he boarded the Rotterdam Express with the purpose of setting the hatch cover for containers to be put on. Verga testified that generally, when he is arranging container "shoes" on the hatch the ship's crew is walking around the ship, although, he did not know exactly where on the ship the crew members were typically located during stevedoring operations.

While walking across the hatch cover to set up container "shoes" Verga allegedly slipped and fell suffering injuries to his right hand. Verga claimed he slipped on a brownish black spot which was grease. Verga testified he did not see nor had any knowledge of the grease before he fell. Verga fractured his right hand which did not heal properly resulting in severe ligament damage and a formation in his hand.

Defendants have moved for summary judgement.

Issue:
Did this Court grant Defendants' motion for summary judgment against Verga's LHWCA claims?

Held:
Verga claimed that Rotterdam Express and Hapag-Lloyd were liable under the LHWCA. Specifically, under 905(b) which provides recovery for injuries suffered as a result of vessel negligence. The vessel's three limited duties are (1) turnover duty, (2) active control duty, and (3) duty to intervene.

Under the turnover duty, the vessel owner has a duty to turn the ship over to the stevedoring company in a condition as to allow the stevedore, to "carry on its cargo operations with reasonable safety". The plaintiff must demonstrate that the defendant had actual knowledge or should have known about the hazard and that the hazard would not be obvious to a competent stevedore.

This Court found there was no evidence to indicate that the vessel's crew was aware of the oil slick prior to the turnover of the ship to the stevedore. Verga testified that he did not know where it had come from nor was there any equipment in the area of the vessel that could have leaked grease or oil onto the hatch cover. This Court also found that the hazard should have been obvious to the employees and could have reasonably been dealt with.

Second, the "active control" duty was not breached by the vessel owner defendants. The Court recognized that the vessel owner does not have a "continuing duty" to discover and correct hazardous conditions that develop during cargo operations. Because the vessel owner did not actively involve itself in the cargo operations, this Court found that it did not violate the "active control" duty.

Finally, as far as the duty to intervene claim was concerned, this Court found that the defendants had no knowledge of the grease spot. There was no knowledge that the stevedore's employer was acting without reasonable care to protect its own employees from risk.

 Accordingly, this Court granted defendants' motion for summary judgment.

Comment:
Under the LHWCA, the injured plaintiff does not have an action for "unseaworthiness" as is provided under the Jones Act.

Under 905(b) however, an action may be brought against the vessel owner for vessel negligence.  The vessel owner has duties, (1) Turnover duty (2) Active Control duty (assigned only when it involves itself in the cargo operations) and (3) Duty to intervene.

Steve Gordon

Background:
Andrew Paul Remedies (Remedies), filed a Jones Act claim against North Bank Towing Corporation. This appeal involves a counter claim, filed by North Bank, alleging a breach of a settlement agreement entered into by Remedies and North Bank.

North Bank filed this action, breach of settlement agreement, in district court seeking indemnity and defense costs resulting from Remedies's breach. Remedies filed a counterclaim for his personal injuries and a motion of summary judgment arguing an enforceable contract was not entered into.

The trial court granted Remedies' motion for summary judgment and held that a binding settlement agreement was never entered into.

North Bank appealed.

Issue:
Did North Bank and Remedies enter into an enforceable settlement agreement for Remedies' Jones Act claims?

Held:
North Bank claimed that the trial court erred in concluding that there were no genuine issues of material fact with respect to the parties' intent in negotiating and entering into the settlement, and whether there was a meeting of the minds with respect to the settlement and (2) concluding that the settlement agreement was unenforceable.

The district court found that Remedies did not agree to settle with North Bank for $30,000. They relied upon a transcript which showed that Remedies' attorney at the time stated they were "not going forward with the settlement."

Moreover, the transcript further showed that North Bank's attorney said "these are not valid settlement agreements, because they haven't been delivered in exchange for a check...".

Ultimately this Court held that although Remedies signed the settlement documents, he told his attorney that he didn't want to go forward with the settlement and the documents were shredded.

Accordingly, because North Bank did not sign the documents before Remedies withdrew his consent, this Court found that the trial court did not err in granting Remedies' motion for summary judgment.

Comment:
When there is a settlement agreement involving a Jones Act case, the law requires that there be, under oath, an interrogation concerning whether the seaman understands what the settlement is and the seaman is in agreement in the deposition.

Here, the seaman knew what the settlement was but ultimately did not agree to its terms before North Bank had a chance to.

Steve Gordon

Background:
The matter before this Court was Plaintiff's (Kovacs), Motion to Remand. The underlying action involved whether the Court is required to use Panamanian law in arbitrating a Seaman's Wage Act claim made by the plaintiff.

Issue:
Did this Court remand the Seaman's Wage Act claim?

Held:
Defendants, Carnival Corporation, conceded that Panamanian law did not provide seaman with a reasonable equivalent to the rights provided by the Seaman's Wage Act.

Moreover, Carnival agreed that it would be inappropriate to arbitrate a Seaman's Wage Act claim using Panamanian law because it would effectively deprive the claimant of the rights provided by the Seaman's Wage Act, in violation of public policy.

As such, Carnival stipulated to the application of U.S. law for Kovac's claim.

This Court found, in fact, that Panamanian law does not provide a seaman with an equivalent of rights provided under the Act. Moreover, this Court found it would be inefficient and improper to split Kovac's Jones Act and/Seaman's Wage Act claim and then compel arbitration of Kovac's nonstatutory claims for unseaworthiness and failure to provide maintenance and cure.

This Court granted Kovac's motion to remand.

Comment:
The Seaman's Wage Act provides that the master, at the end of each voyage, shall pay each seaman their wages within 24 hours after the cargo has been discharged or within 4 days after seaman has been discharged.

Failure to do so, without sufficient cause, gives the seaman a right to recover 2 days of wages for each day payment is delayed.

Steve Gordon

Background:
Plaintiff, Firoz P. Vesuna  ("Vesuna"), filed this action under the Jones Act, unseaworthiness, failure to provide maintenance and cure against defendants Catering and Services International (CSCS) a Netherlands Antilles corporation.

Defendants filed a motion to dismiss on forum non conveniens and to compel arbitration. Vesuna was employed by CSCS aboard two different cruise ship vessels. CSCS and Vesuna had entered into an employment contract where Vesuna agreed to the terms of the contract which incorporated, by reference of the terms of the Collective Bargain Agreement between CSCS and certain unions.

Specifically the CBA contained a forum selection and arbitration clause ordering all questions to be directed to a court in Italy and required compulsory arbitration.

Vesuna filed this complaint against six defendants leaving only his employer and the vessel owners. Vesuna alleged that while he was working aboard one of the vessels, he injured his lower back while lifting a heavy load.

The injury, Vesuna contended, occurred on or about Jan 1, 2006 when the ship was in dry-dock. The ship was not in the United States while being dry-docked.

Issue:
Did this Court grant defendants' motion to dismiss for forum non conveniens  and to compel arbitration?

Held:
Defendants argued that the US law does not apply to this action and that the forum non conveniens factors weigh in favor of dismissal.

Vesuna, on the other hand, argued that recent Jones Act amendments has impliedly imposed a limit on a court's discretion to dismiss a case based on forum non conveniens.

Specifically, Vesuna asserts that the language "so that the action may be brought wherever the seaman's employer does business" evidenced an intention to limit the Court's ability to dismiss a Jones Act case based on FNC. However, this Court pointed to repeated language in the House report that the amendments would not change existing law. Therefore, they were not enacted to limit the ability to dismiss.

Moreover, this Court held that United States law did not apply to this action upon weighing certain factors. In a Forum Non Conveniens dismissal requires a two-pronged approach (1) Whether the US law applies, and if not (2) a traditional analysis for forum non conveniens.

Weighing of the factors, does not support the application of US law.  (1) The place of the wrongful act was not alleged to have occurred in the US or US waters (2) the vessels were not US flagged (3) the plaintiff failed to allege his place of domicile and defendants claim he is a resident/citizen of India (4) the ship owner is registered in Italy and has no offices in the US and is not registered to conduct business there (5) plaintiff failed to argue whether he had access to the foreign forum, but defendants allege that Vesuna does have access to several for a including Italy.

Accordingly, based on those factors weighing in favor of defendants, this Court held that US law did not apply and that upon weighing the traditional forum non conveniens factor, this action was dismissed.

Comment:
In deciding a forum non conveniens motion to dismiss the court will take a two-pronged approach. First (1) Whether US law applies and then if not, (2) applying the traditional test.

First prong:

In determining whether US law applies the court balances the following factors (1) The place of wrongful act (2) The law of the Flag (of the vessel) (3) The allegiance or domicile of the injured party (4) The allegiance of the shipowner (5) The place of the contract (6) the inaccessibility of the foreign forum (7) The law of the forum (8) The Shipowner's Place of Operations.

Second prong:

If this weighs in favor of not applying US laws the party seeking dismissal must then demonstrate: (1) An adequate alternative forum is available (2) Public/private factors weigh in favor of dismissal (including - availability of witnesses - convenience to parties - interest of local jurisdiction hearing the case - etc) and (3) The plaintiff can reinstate his suit in the alternative forum without undue inconvenience or prejudice.

Steve Gordon

Background:
Defendants, Mike Hooks Inc. ("Hooks") filed a motion to transfer venue pursuant to 28 U.S.C. 1404(a). Plaintiff, Eddie W. Cowley, ("Cowley") opposes this motion on grounds that it would not be convenient to transfer this action from Lafayette, Louisiana to Lake Charles, Louisiana. This motion arose under an action filed under general maritime law and Jones Act.

Issue:
Did this Court rule in favor of defendants and transfer this action to another venue?

Held:
At the telephone conference, the parties discussed the private factors in the transfer analysis, particularly the relative ease of access to sources of proof and cost of attendance for willing witnesses.

The Court found that two material witnesses, living in the Lafayette area, including the captain of the dredge, tipped the balance towards Lafayette. Only one material witness is located in the Lake Charles area.

Accordingly this court found that the private factors considered favored transfer. As for the public factors, both divisions have similar dockets and are equally familiar with Admiralty and General Maritime Law. Therefore, there won't be much difficulty by keeping this action in Lafayette opposed to Lake Charles.

Ultimately, this Court found that the defendant failed to show good cause for the transfer to the Lake Charles division and their motion was denied.

Comment:
A dismissal for forum non conveniens and a motion to transfer are two different things. Under a forum non conveniens claim, the moving party has a greater burden of showing inconvenience.

Under a 1404 transfer the moving party has a smaller burden to show that both private and public factors weigh in favor of transfer.

Steve Gordon

Background:
Plaintiff, Michael S. Powell ("Powell"), filed this action under the Jones Act and general maritime law against defendant, American President Lines ("APL").

Powell was employed as a licensed deck officer aboard the APL Singapore. While he was aboard the vessel, his employment was governed by the terms of a written collective bargaining agreement between APL and the International Organization of Masters, Mates, and Pilots (MMP) with whom Powell was a union member.

Throughout Powell's employment, the Captain of the APL vessel had given warnings regarding failing to follow the Captain's direct and standing orders and lack of common seamanship, failure to observe safe practices, and other performance deficiencies on the night watch.

Powell had previously brought an action under the Jones Act against his previous employer for wrongful injury, wages due, and personal injury suffered aboard one of its vessels.

The Captain testified he learned of the previous lawsuit and injury after he had already decided to terminate Powell's employment.

Powell then filed a grievance with his union over his discharge. The MMP's vice president advised Powell that they would not support his position at arbitration because there was an "inadequate basis to pursue [his] grievance beyond this point". The MMP's General Executive Board (GEC) agreed with the MMP's vice president. Finally, after the Offshore Advisory Council (OAC) refused to pursue the matter further, Powell filed this action in the Western District of Washington.

Issue:
Did Powell succeed in his Jones Act and general maritime law claims alleging his employer, Captain, and vessel owner were negligent and wrongfully discharged him?

Held:
The Jones Act authorizes seamen to maintain actions for negligence against their employers in the event they are injured in the course of their employment. The Captain contended that Powell has failed to produce any evidence of an injury while serving aboard the APL vessel. Moreover, this Court found that Powell failed to allege correctly that he was injured, and that the defendant was his employer at the time of injury.

Moreover, Powell claimed that his termination was wrongful. Under the Jones Act, a "wrongful termination" occurs when a seaman is discharged in retaliation for pressing Jones Act personal injury claim against that employer.

However, Powell merely claimed that he may have been terminated because he brought a Jones Act claim against a different employer. The Captain has never met the other employer's captain, and his decision to terminate Powell was reached at least 2 days before learning of the claim.

Powell also alleged that the Captain "unreasonably harassed" and "embarrassed" him on board the vessel. However, as in FELA claims, the harassment must manifest itself into a physical injury. Powell does not claim to suffer any physical injury as a result of the conduct complained of.

This Court found that Powell failed to meet his burden to establish a claim against the Captain for wrongful termination or "unreasonable harassment".

Finally, Powell brought a claim for unseaworthiness. However, all of the unseaworthiness "defects" the plaintiff alleged, did not contribute to any kind of injury or actual or imminent accident.

Accordingly, this Court granted defendants' motions for summary judgment.

Comment:
In Smith v. Atlas Off-Shore Boat Service, Inc. 653 F.2d 1057 (5^th Cir. 1981), the Court recognized a "wrongful" termination action under the Jones Act where a seaman was allegedly discharged in retaliation for pressing a Jones Act personal injury claim against that employer.

It is important to realize that termination based upon the pursuit of a Jones Act claim is actionable itself. This is meant as a safeguard to protect the rights of employees who are injured during the course of employment.

Steve Gordon

Background:
Plaintiff, Tammy, has brought this suit under general maritime law and the Jones Act to recover for injuries sustained while employed as a seaman for defendant, Trident Seafoods Corporation ("Trident").

Trident has moved to dismiss for improper venue alleging that Tammy cannot pursue her personal injury claims in California because her employment contract with Trident included a forum selection provision requiring all suits against Trident to take place in King County, Washington.

Previously, this Court rejected Tammy's argument that a series of amendments to the Jones Act was intended to void forum selection clauses in employment contracts for seaman. However this Court did find a potentially valid basis for finding the forum selection clause unreasonable..".

Tammy, the plaintiff, resubmitted evidence for further consideration in the matter.

Issue:
Did this Court grant Trident's motion to dismiss for improper venue or did it hold that the forum selection clause within the employment contract unreasonable?

Held:
The Supreme Court has emphasized that forum-selection clauses contained in form passage contracts are subject to judicial scrutiny for fundamental fairness.

Plaintiff, here, claimed that she would be effectively precluded from litigating this case in Washington because (1) her medical condition limits her mobility and (2) pursuing the action in Washington would be expensive because she was treated in northern California and she depended upon medical expert testimony from California.

Some days, plaintiff claimed, she cannot even leave the house because she is fearful of falling due to her back injury. She did visit Washington since her injury and testified that she suffered extreme pain, fear of falling, and other difficulties. Furthermore, she asserted that she has family in San Francisco that would help her during the trial process.

However, this Court found that it would be a mere "medical hardship" on the plaintiff to travel to Seattle for a prolonged court case. (Quotations from her primary physician). Her hardship simply does not give rise to fundamental unfairness nor does it preclude hr from attending the trial.

Moreover, Trident cited to a note, written by her former physical therapist, after a long distance trip than Tammy was "back from vacation + no falls..". While her fear of falling may have been credible, it did not deter her from traveling.

Second, plaintiff's counsel estimated that litigation in Seattle would cost between 34,000 and 74,400 more than litigation in San Francisco.

This Court found that given the plaintiff's extremely limited financial means, the Court agreed she will face fundamental unfairness if the suit is dismissed and she is forced to proceed against Trident in Washington. The Court found that expert testimony would be nearly 3x the amount if the case were litigated in Washington and not in San Francisco.

Accordingly, this Court denied Trident's motion to dismiss for Improper Venue.

Comment:
The Jones Act does not prohibit forum selection clauses in employment contracts. However, as the Supreme Court has granted the courts with discretion to examine such clauses with scrutiny in order to determine if it would place an undue burden on the plaintiff or prejudice his/her ability to recover in court.

The party moving to strike the clause as invalid, has the burden of showing that dismissal would prohibit a fair trial.

Steve Gordon

Background:
Plaintiff, Courtney Lawrence ("Lawrence") brought this action in Florida seeking damages and other relief against defendant, Royal Caribbean ("Royal") for damages arising out of alleged injuries sustained during the course of his employment while aboard the Voyager of the Seas.

Lawrence brought this action under the Jones Act, unseaworthiness, maintenance and cure, and Jones Act negligence, and failure to treat unearned and overtime wages.

Lawrence alleged he sustained injuries to his hands and wrists while performing his assigned duties as an assistant cook. Specifically, he was ordered to go to freezer and grab a large amount of produce, during the process he injured his hands and wrists while maneuvering a fully loaded trolley of produce over a raised threshold located on the floor.

Lawrence further alleged that Royal aggravated his injuries by failing to provide proper medical treatment and has since undergone three surgeries on his hands and is permanently disabled.

Lawrence signed an Employment Agreement which incorporated terms of a Collective Bargaining Agreement. The agreement contained an arbitration clause pursuant to the United Nations Convention on Recognition and Enforcement of Foreign Artbitral Award ("The Convention").

After filing this case in state court, both Lawrence and Royal conducted discovery back and forth, Royal answered including 25 affirmative defenses.

Now, Royal, defendant, moves to remove the case pursuant to the arbitration agreement. The plaintiff, Lawrence, argued that the (1) maintenance and cure claims are not subject to the seaman's agreement and that (2) nevertheless, Royal waived arbitration by conducting pre-trial discovery.

Issue:
Did this Court find that Royal's participation in pre-trial discovery effectively waived the mandatory arbitration clause within the employment agreement entered into by Lawrence?

Held:
Lawrence asserted that Royal waived any right it may have had to claim arbitration because they engaged in pre-trial discovery, inconsistent with the right to arbitration, thereby prejudicing Lawrence in the process.

A waiver of the right to arbitration is appropriate where the court finds, after reviewing the totality of the circumstances, that a party has acted inconsistently with the right to arbitrate.

While the use of pre-trial discovery procedures by  party seeking arbitration may sufficiently prejudice the legal position as to constitute a waiver, any party arguing a waiver of arbitration, bears a heavy burden of proof.  

Here, this Court found that Lawrence met the heavy burden of proof by showing that Royal actively litigated this case in state court for seven months and coincidentally filed a motion to remove in favor of arbitration on the same day the jury trial was scheduled by the state court.

Accordingly, this Court granted plaintiff's motion to remand to state court.

Comment:
Notwithstanding a compulsory arbitration clause in an employment agreement, a party may show that the other party effectively waived their right to arbitration under the agreement.

Courts have found various pretrial activities, including extensive discovery requests, to be a waiver. Also courts have found where the party moving for arbitration, that have litigated in state court for over a year and 15 months respectively had waived their right.

In finding a waiver, the courts are ultimately trying to avoid prejudice to the non-moving party by causing more delay and incurred litigation expenses as a result of moving the action to arbitration.

Steve Gordon

Background:
Plaintiff, Scott Lamberger ("Lamberger"), was a seaman employed by Inland Marine Service Inc. ("Inland"). Lamberger was injured while moving a 55 gallon drum aboard one of Inland Marine's vessels, and entered into a Settlement and in turn agreed not to sue and granted indemnification to Inland.

Lamberger received $53,500 in exchange for agreeing to the following: "Scott Lamberger does herby release, covenant not to sue, aquit, and forever discharge, hold harmless, protect, indemnify, and defend Inland Marine Service, Inc., its vessels, barges and equipment etc...". Furthermore, included was a promise not to sue under the Jones Act or any kind of general maritime law pertaining to or referring to unseaworthiness of navigable vessels, gave up the right to maintenance and cure also.

Shortly after, Lamberger was fired after leaving early upon belief that he received permission from the captain. Lamberger filed this suit over his injuries, alleging breach of warranty of seaworthiness, and Inland Marine has filed a motion for summary judgment, asserting that the settlement agreement prevents Lamberger from bringing these claims.

Issue:
Did the settlement agreement prevent the plaintiff from asserting these claims?

Held:
A seaman's release as a defense is held to a higher standard than normal state contract law. Lamberger alleged that he did not have a full understanding of his rights upon signing the release. Specifically, Lamberger claims he was under  the belief he would be able to still work for Inland Marine and that the termination was contrary to the agreement.

However, this Court found that in fact, Lamberger did return to work for two months following his Settlement. The Court further found that Inland Marine made no guarantees of permanent employment for which Lamberger alleges now.

Accordingly this Court granted Inland's motion for summary judgment.

Comment:
In this case involved a release given by a seaman. Such releases are given careful judicial scrutiny. The burden is upon the person who seeks the protection from the release to show that it was executed freely, without deception or coercion, and that it was made by the seaman with a full understanding of his rights.

The adequacy of the consideration and the nature of the medical and legal advice available to the seaman at the time of signing are relevant in determining whether the agreement was fair.

Steve Gordon
 

Background:
Plaintiff. Richard E. Hicks ("Hicks") was a seaman, cook, aboard the US flagged containership M/V Maersk Alabama ("Maersk"). The Maersk was owned and operated by Maersk Line, Ltd. and chartered by Waterman Steamship Corporation ("Waterman"). Hicks filed this action pursuant to the Jones Act, unseaworthiness, negligence, and common law claims arising from facts/omissions, and breaches of duties owed to him as an employee and seaman.

Shortly after beginning its voyage, pirates attempted, unsuccessfully, to hijack the Maersk.
Hicks alleged that he sustained injuries during the incident with the pirates. He further alleged that Maserk Line and Waterman failed to provide adequate security for the Maersk thereby proximately causing his causing his injuries.

Defendants removed this case from state court to federal court and now, Hicks has moved to remand the suit to state court.

Issue:
Did the Court grant Hicks' motion and remand this claim, under the Jones Act, to state court?

Held:
The Maritime Transportation Security Act of 2002 (MTSA) was enacted to address maritime transportation security and deter potential incidents.

The MTSA requires owners and operators of vessels and facilities that may be involved in a transportation security incident to prepare a security plan for determining a transportation incident to the maximum extent practicable.

The plans must be consistent with the requirements of the National Maritime Transportation Security Plan and Area Maritime Transportation Security Plans and must include provisions for establishing and maintaining physical security, passenger and cargo security, and personnel security.

Maersk drafted and compiled a vessel security plan, submitted it to the US Coast Guard, and it was approved.

Under the Jones Act, a party may remove an entire action whenever a separate and independent claim or cause of action within the jurisdiction conferred by 28 USC §1331, is joined with one or more otherwise non-removable claims.

A federal claim is separate and independent if it involves obligations distinct from non-removable claims in the case.

Generally a Jones Act claim initially filed in state court cannot be removed, defendants must show that this case was properly removed to this Court.

Defendants argued that the Jones Act provided Hicks a remedy only against Waterman, the charterer of Maersk and his sole employer. Maersk's obligations to Hicks are governed, on the other hand, by the MTSA.

Therefore, according to the defendants, Hicks' negligence claim against Maersk for failure to provide adequate security necessarily stated a violation of security obligations under U.S. national security laws, which there are separate and independent federal claim from the non-removable Jones Act claim.

However, this Court recognized that negligence and unseaworthiness claims, under the Jones Act, have been and are brought against vessel owners and charterers. This Court found that even though Maersk is not found to be Hicks's employer for purposes of the Jones Act, it would not exclude Maersk Line from liability from the other maritime actions, therefore Hicks is not necessarily alleging a violation of federal security law.

Defendants also contended that removal jurisdiction is proper based on complete diversity, however, this Court found that Jones Act claims are not subject to removal to federal court, even in the event of diversity of parties.

Accordingly, this Court remanded the action back to state court.

Comment:
The defendants attempted to argue that the plaintiff here was alleging, in his complaint, a violation of a US federal security statute and therefore, would subject the entire case to federal court.

However, the plaintiff did not even mention the federal statute in question and because, generally, courts give greater deference to the plaintiff's choice of state or federal court in Jones Act claims, they re-removed the case back to state court for further proceedings.

Steve Gordon

Background:
Plaintiff, Esperanza Bonilla-Olmedo ("Esperanza") filed this action as the widow of William Charles Merriweather ("Charles") who was a civilian employee with the Department of Morale in Fort Buchanan, Puerto Rico.

Espreranza claimed that Charles was the victim of harassment by his superiors who undermined his health ultimately resulting in his death.

Esperanza brought this claim under Article II of the constitution which effectively waives the United States' immunity in this tort case. The US has moved to dismiss claiming that Esperanza's under the Federal Tort Claims Act ("FTCA") should be dismissed because she is not titled to a cause of action. Moreover the US asserted that the claim is barred by the Longshore Harbor Workers' Act (LHWCA).

Issue:
Did this Court dismiss plaintiff's complaint finding that there was no cause of action under the FTCA and that it was further barred under the LHWCA?

Held:
Under the FTCA, the US waived its sovereign immunity for "injury or loss of property... caused by the negligent act or omission of any employee of the government while acting within the scope of his office/employment...".

The FTCA provides the exclusive remedy to compensate for a federal employee's tortious acts committing within his/her scope of employment.

The waiver of immunity is subject to conditions that (1) the claim must be brought within 2 years and (3) within six months of denial of the administrative claim.

The FTCA waives the immunity of the US for tortious acts of its employees only where the US, if a private person, would be liable to the claimant in accordance with local law.

Ultimately this Court found US within the provisions of Puerto Rico Civil Code, 1802 which allows relatives of the injured to recover for harm caused by discriminatory treatment at the hands of the employer. Accordingly, 1802 allows for the recovery under the FTCA.

US also contended that the deceased would have been able to seek compensation under the LHWCA, which supplied the exclusive remedy for compensation for work-related death or disability.

This Court recognized however, that application of benefits under the LHWCA did not estop an employee from bringing an FTCA suit until coverage has been determined by judicial or administrative decision. Voluntary compensation paid by the employer before such a determination would not bar suit under the LHWCA.

The US has argued that the statute of limitations has run its course under the FTCA, and as such, the claim should be dismissed.

Esperanza claimed a continuing violation ensued in this case, and the continuing violation doctrine created an equitable exception when the unlawful behavior is deemed ongoing. As such, the statute of limitation is controlled by all discriminatory acts, not the first.

This Court found that the complaint filed addressed a pattern of harassment which commenced on July 2005 and continued until August 2007, including racial slurs and moving Charles from his regular duties to perform duties he was physically unfit for, it caused his ultimate demise. As such, it constituted continuous violations and therefore was not time barred.

The Court denied the United States' motion to dismiss.

Comment:
Under the FTCA, the US has waived its sovereign immunity. Usually, a private citizen may not sue the Federal Government unless  a waiver applies. The FTCA provides such waiver that where, under law of the local jurisdiction, a claimant could bring such an action of negligence against a private citizen, then the US has waived its immunity and may be sued under the same theory.

Steve Gordon

Background:
Plaintiff, James D. Lee ("Lee") was awarded benefits under the Longeshore Harbor Worker's Compensation Act (LHWCA) as a result of injuries sustained while working for defendant Astoria Generating Company (Astoria).

Third party defendant, Elliot Turbomachinery Co. (Elliot) was hired by Astoria to perform maintenance and rebuild turbines at an electric generation facility composed of four barges that house eight individual gas turbine generating engines.

While stationed, the barges float and are connected to a power grid, these barges are moved periodically for maintenance.

Lee employed by one of the defendants injured his back while performing work on a turbine aboard a barge. He was ordered, according to the plaintiff, by a supervisor to enter the turbine's exhause well through a hatch to perform welding. While ascending a ladder to reach his work area his feet slipped and he fell eight feet to the base of the ladder, injuring his back.  

Lee was awarded benefits under LHWCA and commenced this state court action against Astoria asserting labor law claims and common law negligence claim.

Defendants filed a third-party complaint against Elliot seeking indemnification.  Elliot moved for summary judgment asserting that §905 of the LHWCA precluded lawsuits against it as an employer of the injured worker and Lee's state law claims were preempted under §905.

The barge-owners also filed claim asserting that Lee's claims were preempted. Lee argued that the claims were not preempted because the barge did not constitute a vessel and maritime jurisdiction did not apply.

The Supreme Court of NY granted summary judgment concluding that the LHWCA preempted state law claims and adopted the Department of Labor's determination that plaintiff is a covered employee under LHWCA and concluded that the barge is a vessel under recent federal case law.

The Appellate Division "reversed" the Supreme Court order reinstating the state law claim holding the barge was not a vessel and even if it were, maritime jurisdiction did not preempt the claims.

Defendants appealed.

Issue:
Are plaintiff's state law claims preempted by the LHWCA and is the barge a vessel?

Held:
This Court recognized that a "vessel" included every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water. Floating structures not practically capable of being used as a means of transportation do not qualify as vessels. This Court found that the barge was a "vessel". Astoria moved it once every 10 years to a maintenance station, and at least once to provide energy to another part of NY. Therefore, it was capable of being used as a means of transportation on water.

This Court also stated that LHWCA, §905(b), allows actions in negligence against a vessel. This action is "exclusive of all other remedies against the vessel except remedies available under this chapter". Therefore, this Court preempted Lee's Lee's state law claims.

Comment:
Section 905(b) of the LHWCA provides a longshore worker the exclusive means in which he may recover for vessel negligence. That is, a plaintiff may not bring an action under 905(b) and then for vessel unseaworthiness under general maritime law.

The plaintiff may, however, elect to recover under an unseaworthiness claim, but cannot recover under the LHWCA.

Steve Gordon

Background:
Deckhand, Micael Sherwood ("Sherwood") brought this action against his employers seeking recovery under the Jones Act and general maritime law for injuries he allegedly sustained during his employment.

Sherwood alleged he suffered an injury while working as a deckhand who's vessels travel on the Mississippi River. Sherwood has asked for arbitration.

The district court denied the motion to stay concluding that the Federal Arbitration Act preempts any state law concerning arbitration, and does not allow for arbitration to apply to contracts of employment of seamen. Basically, the district court stated that if the federal Act applied, arbitration must proceed under its terms; but if the federal Act does not apply, then arbitration is forbidden.

Issue:
Did this Court find that the Federal Arbitration Act applied to this action?

Held:
The Court recognized that if the federal Act did not apply, then state law governed. That is if the Act applied, then states are forbidden to interfere with the parties' agreement, but that when a contract is not covered by the federal Act, states are free to favor, disfavor, or even ban arbitration.

In fact, this Court has held that the limited scope of federal enactment does not preempt legislation on subjects that Congress has chosen not to regulate.

Defendant, Bluegrass, appealed arguing that interlocutory review is auhorized of any order "refusing a stay of any action under section 3 of this (FAA) title". However, this Court found that this does not apply to any employment contract involving a seaman and Bluegrass's motion relied upon Illinois Law, neither which applies to a motion to stay litigation when the state, not the federal, law is the source of the obligation to arbitrate.

Ultimately, because defendants seek apply State law to their appeal, this Court ruled that they had no jurisdiction and denied defendants' appeal.

Comment:
The Federal Arbitration Act is a statute that provides for judicial facilitation of private dispute resolution through arbitration. The FAA requires that where parties have agreed to arbitrate they must do so in lieu of going to court, provided that the proceeding is fundamentally fair.

Applicable to this case, the Act states that "nothing shall apply to contracts of employment of seamen" (9 U.S.C. §1). Generally, state law that disfavors the enforcement of arbitration agreements will be preempted by the FAA.

However, here, the contract involved a seaman, and therefore, was not within the FAA's reach and did not preempt it. This leaves the determination to state law and as such, is not within the federal appeals courts' jurisdiction.

Steve Gordon

Background:
This case involves the wife, Birgitt Eysselinick ("Birgitt") of a deceased defense contractor who committed suicide as a result of suffering from post-traumatic stress disorder arising from his employment. Birgitt made a claim for death benefits pursuant to the Longshore Harboer Workers' Act. ("LHWCA").

Before this Court are Magistrate Judge Stacy's Memorandum and Recommendation, recommending that a decision by the Benefit Review Board (BRB) denying benefits for decedent's suicide.

 An administrative law judge upheld the BRB's decision finding that the suicide was a result of willful intention.

Issue:
Did the Administrative Law Judge err when it determined that decedent's suicide was a result of willful intention and therefore denied plaintiff's claim for benefits?

Held:
First, Birgitt contended that at no time during the proceeding that she was afforded the applicable presumption of 33 USC §920(d) which states, in any proceeding for the enforcement of a claim it shall be presumed in the absence of evidence to the contrary that the injury was not occasioned by the willful intention of the injured employee to injure/kill himself.

The Supreme Court has held this to mean that this provision controls the result where there is an entire lack of competent evidence. (296 U.S. 280 (1935). As such, this court found that the presumption did not apply to the ALJ's findings because of a Dr's expert testimony concluding that there was insufficient evidence of PTSD.

Second, Birgitt argued that the ALJ erred in finding that the suicide was an "impulse type action". However, this court found that the evidence presented before the ALJ laid out substantial support of the finding that the suicide was a result of willful intention.

Moreover, Birgitt contended that the suicide could have also resulted from depression and not PTSD. However, Birgitt failed to present any evidence alluding to depression and focused solely on PTSD, resulting from decedent's work in Iraq. Ultimately, Birgitt cannot raise an argument not brought before the ALJ.

Birgitt ultimately contended that the ALJ  improperly weighed the evidence. However, claims under the Longshore Harbor Worker's Compensation Act requires the BRB to accept the findings of the ALJ unless they are not supported by substantial evidence considered as a whole. The BRB does not have the statutory authority to review the ALJ's factual findings de novo.

Ultimately, this Court upheld the BRB's denial of benefits to plaintiff under the LHWCA.

Comment:
When one makes a claim for benefits under the LHWCA, they go before an Administrative Law Judge (ALJ) who is bound by the statute in which the claim is invoked, here the LHWCA was invoked. After the ALJ makes his/her recommendation it will be submitted to the Benefits Review Board (BRB) who, under the LHWCA , can overturn an ALJ's findings of the evidence only upon a clear error of the law. Once this stage is over, either party can appeal the BRB's determination to a district court to determine whether the decision was incorrect based upon the ALJ's findings.

Here, the plaintiff was unable to show that the ALJ ruled contrary to the evidence presented and the District Court affirmed the BRB's decision.

Steve Gordon

Background:
Plaintiff, Nasser Aljalham ("Nasser") filed this Jones Act case against his former employer, American Steamship Company ("American") as a result of back injuries Nasser received while loading groceries on the vessel.

The Court set a discovery cutoff date of March 31, 2009. American, after this date, moved for leave to file a third party complaint through which is sought third party indemnification, contribution, and other relief from Alloue Marine Supply.

Specifically, American alleged that the cause of Nasser's injury was Marine Supply's failure to mark the box in accordance with American policies.

During a trial conference, the Court allowed 90 more days of discovery and American requested to file a third party complain against Marine Supply which was granted.

Defendants seek to Amend the Scheduling Order by an additional 60 days following Marine Supply's filing of an answer.

Issue:
Did the Court allow an extension in the Amended Scheduling Order?

Held:
Federal Rule of Civil Procedure 16(b) requires that requests for modifications of dates set by the Scheduling Order should be submitted by written motion to the Court at least 21 days prior to the date for which modification is sought.

This order, was scheduled several days after discovery cutoff. Marine Supply argued that the Court intended to create a different discovery time-line for Marine Supply as a third-party defendant.

However, this Court found that nothing in the Court's order indicated an intent to re-open discovery for 90 days from the time that Alouez was joined in the case. The Court only re-opened discovery for 90 days from the time of the final pre-trial conference.

Ultimately, however, this Court found that good caused existed to extend Marine Supply' s request to extend the discovery period. Marine Supply was not joined until one month into the re-opened discovery peior and has not been able to initiate discovery with respect to possible indemnification agreements with American.

This Court granted Marine Supply's Motion to Adjourn the Scheduling Order dates, allowing more time for discovery.

Comment:
Courts, prior to trial, usually sets a schedule which both parties must follow. Important dates include pretrial conferences (in an attempt to bring the parties to settle) and make a cutoff date for discovery requests.

Without the schedule, discovery could go back and forth for an extremely long time and unnecessarily delay justice.

Steve Gordon

Background:
Before this Court was defendant, U.S. United Barge Line's ("United Barge) motion for summary judgment in response to plaintiff, Eddie Westbrook's ("Westbrook") action pursuant to the Jones Act and unseaworthiness for injuries suffered while employed by United Barge.

According to Westbrook, he was injured while climbing a set of stairs from the lounge of the vessel to the vessel's second deck in order to obtain a mop to use as part of his cleaning duties shortly after beginning his watch for United Barge.

While climbing up the stairs, Wesbrook fell backwards down the stairs and landed on his right hip and bumped his head. Westbrook alleged that at the time of his fall the stairs did not have any handrails and that had they been present, he would not have fallen to the bottom of the stairs and been injured.

Following the fall, Westbrook completed an Inury/Illness Incident Report Form where he described the incident as "going up steps from lounge to second deck about half way up triped and fell backwards down steps... going up steps a little to fast".

Westbrook was taken to the hospital and signed a statement to the affect that he was rushing up the stairs and "mis-stepped".

Westbrook filed this action asserting a negligence claim under the Jones Act and unseaworthiness under the General Maritime Law. Westbrook alleges the stairs did not have handrails and also brought a claim for maintenance and cure.

Issue:
Did this Court grant United Barge's motion for summary judgment?

Held:
Westbrook claims that the absence of handrails at the time of his fall would be a breach of United Barge's duty to provide a safe place for Westbrook to work and therefore, constituted negligence under the Jones Act. Additionally, Westbrook contended that the absence of handrails rendered the vessel unseaworthy.

Westbrook contended that he has submitted sufficient evidence to make the presence/absence of handrails a genuine issue of material fact in dispute. Westbrook alleged, in his deposition and affidavit and handrails were not present. He also submitted the history he gave to nurse Simmons on the day of his injury where he stated handrails were not present.

United Barge argued that overwhelming evidence confirmed the stairwell had handrails on each side. First, United points to vessel construction specifications which set forth that stainless steel handrails would be provided on both sides of the interior stairwells.

Ultimately, however, the District Court held that the evidence presented by Westbrook and United Barge presented genuine issues of material fact best left for the finder of fact to decide (jury/judge). Accordingly, this Court denied United Barge's motion for summary judgment.

Comment:
The sufficiency of the evidence to defeat summary judgment is simply whether a reasonable finder of fact could conclude favorably for the party introducing it. Westbrook's statement to the nurse, that the stairwell did not have a handrail, could lead a juror/judge to reasonably find that the stairwell lacked handrails.

Moreover, United Barge introduced evidence that a reasonable juror/judge could be lead to believe that the vessel in fact did have the handrails at the time of the incident.

If conflicting evidence is presented, and both could lead to different reasonable finding of facts, then  the standard of summary judgment has not been met.

Steve Gordon

Background:
Defendants, Great Lakes Dredge & Dock LLC and Atlantic Sounding Co. ("Atlantic") submitted, before this Court, motions for summary judgment in response to plaintiff's, Timothy F. Petrey ("Petrey") claims under Jones Act for negligence, unseaworthiness, and maintenance and cure.

Petrey was employed as a seamen by Atlantic performing deckhand services aboard an Atlantic owned tug. The tug was towing a barge and a bridle ran from the front of the barge to the vessel in a V-shape with two chains. The tow bridle broke and the tug continued to pull the barge for another hour or so.

Petrey was ordered to untangle the tow bridle and when a wire snapped, it flipped him on the deck, causing his prosthetic hip to become damaged. Petrey was placed in a temporary brace and it was determined Petrey would need additional surgery

Atlantic sought a declaration that it was not liable for maintenance and cure because Petrey failed to disclose that he had right hip replacement prior to his employment.

Petrey counterclaimed under the Jones Act and general maritime law alleging, Jones Act negligence, unseaworthiness, and a claim for maintenance and cure. Petrey also filed a third-party complaint against Great Lakes, the owner of the barge, alleging the barge was unseaworthy. Great Lakes filed a cross claim against Atlantic alleging any damage Petrey sustained was due to Atlantic's negligence and Atlantic responded seeking indemnity/contribution due to the construction of the barge.

Both defendants filed motions for summary judgment in response to Petrey's claim.

Issue:
Did this Court grant defendants' motions for summary judgment thus precluding Petrey from asserting Jones Act negligence, unseaworthiness, and maintenance and cure claims?

Held:
First, Atlantic contended that Petrey cannot recover maintenance and cure benefits because he willfully concealed his total, right hip replacement surgery. Atlantic argued that Petrey was required to undergo a post-offer medical examination and that he concealed his medical history on a report of medical history form. Atlantic contended Petrey would not have been hired had they known about the hip.

Petrey however, contended that he is not barred from receiving m/c payments because the Captain and crew were aware of his hip condition for about a year prior to the accident. Petrey claimed he carelessly filled out the medical questionnaire and did not willfully conceal his hip condition.

This  Court found Petrey introduced sufficient evidence creating genuine issues of material fact whether he willfully concealed his hip condition and if Atlantic would have hired him.

Moreover, Atlantic contended that Petrey cannot establish evidence that Atlantic did not provide Petrey with a safe place. Atlantic argued that Petrey was performing a simple duty, checking free lines and walking on the deck, when he was injured.

Petrey countered arguing that there are disputed issues of material fact as to Atlantic's liability. Petrey argued that Atlantic was liable, negligently, for ordering him to perform an unsafe procedure without help or proper equipment. Petrey contended that he was unable to, and the Captain should have known, he would be unable to perform the task alone.

This Court, again, found that Petrey had presented sufficient evidence to establish a genuine issue of material fact whether  it was safe for him to perform the task, simple as it may be, by himself.

Great Lakes contended that Petrey could not establish that they were negligent in a manner that would have caused or contributed to his accident and injury. Greak Lakes argued that even if the entry to the barge was blocked or obstructed, Petrey was not prevented from "easily" boarding the barge and that any blockade did not cause his injury. Moreover, Great Lakes asserted a faulty tow line played no role in the accident.

Petrey countered, successfully, that Great Lakes failed to perform its duty to provide reasonable care under the circumstances by failing to maintain and inspect the towing rig. Accordingly, Petrey's evidence was sufficient to defeat Great Lakes' motion for summary judgment on his negligence claim.

Finally, this Court granted Great Lakes' motion for summary judgment against Petrey's unseaworthiness because a Jones Act seaman cannot maintain a seaworthiness action against a vessel on which he is not a crew member.

Comment:
Employers will sometimes try to assert the "concealment" defense in response to a maintenance and cure action.

This will only prevail if the vessel owner can show that (1) the claimant intentionally misrepresented or concealed medical facts, (2) the non-disclosed facts were material to the employer's decision to hire the claimant, and (3) a connection exists between the information and the injury complained of in the lawsuit.

Steve Gordon

Background:
The plaintiff, Illi Samson ("Samson"), appealed the district court's granting of summary judgment in favor of American Seafoods Co. ("American"). The district court held that, there were no genuine issues of material fact whether by requiring Samson to work 16 hour work days for months at a time, that American was negligent or created an unseaworthy condition leading to Samson's injuries.

American was aware that it required 16-hour shifts, with no days off, for months at a time on Samson's boat, the F/T American Triumph. Another employee, Alan Davis, stated that other boats use 12 and 14-hour shifts and that the company, American, was experiencing with shorter shifts to see if those shifts were better for the seaman.

 Davis also testified that the 16-hour shifts were shocking to him when he first entered the industry standard. However, Davis grew to accept this as the industry standard.

Samson fell during the final hour of the 16-hour shift and had previously complained to American Seafoods that his shift was too long and caused him to be exhausted. Samson's job involved lifting and flipping 70 lb trays of frozen fish.

At the time of his injury, Samson tried to shift his weight when his legs gave out under him as the boat rolled.

Samson filed this action under Jones Act negligence, and unseaworthiness. American moved for summary judgment and the district court granted it. Samson appealed to this Court.

Issue:                                                                                                                                           
Did this Court find that Ili presented issues of material fact whether requiring Ili to work 16-hour shifts, months on end, was negligent and that the negligence caused Ili's injury?

Held:
There was no dispute that Samson was a seaman and that American owed him a duty to provide a safe work environment under the Jones Act. Therefore, American owed Samson a duty to provide a reasonably safe workplace for Samson.

Moreover, this Court found that a reasonable jury could have concluded that requiring Samson to work a 16-hour shift was a breach of American's duty to provide a reasonably safe work environment. This Court relied on Davis's deposition in which he stated that American used shorter shifts on other boats in an experiment to see if those shifts are better for the seamen. Accordingly this Court found, Samson created genuine issues of material fact as to whether American was negligent by failing to act resonably, under the circumstances. in providing a safe place to work.

This Court also found that Samson established sufficient causation to survive summary judgment on the Jones Act claim. The Court noted that the Jones Act claim standard for causation only requires that the employer's negligence be a cause, however slight, of the injury.

This Court held that the length of the shift and Samson's duties, including flipping 70 lb trays of frozen fish, created a genuine issue of material fact whether the length of his shift played any role, however slight, in causing his fall and subsequent injury.

Also, the Court considered Samson's unseaworthiness claim. Both parties conceded and it is undisputed that Samson is a seaman and thus, entitled to a warranty of seaworthiness. This Court noted that lack of adequate crew is a basis for unseaworthiness and that requiring a crew to work 16-hour shifts for months on end could indicate that the ship is not adequately manned with crew to perform its duties in a seaworthy manner.

Finally, the Court considered whether requiring the crew to work 16-hour shifts every day was a substantial factor in causing Samson's injury. This standard requires a showing of a higher degree of causation than a Jones Act negligence claim.

This Court recognized that the same evidence supporting Samson's Jones Act claim also supports his unseaworthiness claim, and rather than parsing and affirming/denying the district court's ruling in parts, this Court reversed and remanded Samson's claim for a jury to determine.

Ultimately this Court reversed the granting of summary judgment.

Comment:
In bringing a Jones Act claim for neglgience, the plaintiff must establish first, that their employer failed to act in a reasonably prudent manner, much like under common law negligence,  and thus breached their duty to provide a safe work environment.  

Once the plaintiff is able to establish the employer's negligence, they then move onto causation. The plaintiff need to only show that the employer's negligence, was a cause, however slight, in causing his/her injury. This is known as a "featherweight" standard of causation under Jones Act negligence claims.

The plaintiff has a higher burden to show that the employer was negligent but a featherweight burden in showing that the negligence played a role in causing the injury.

Steve Gordon

Background:
The plaintiff, Illi Samson ("Samson"), appealed the district court's granting of summary judgment in favor of American Seafoods Co. ("American"). The district court held that, there were no genuine issues of material fact whether by requiring Samson to work 16 hour work days for months at a time, that American was negligent or created an unseaworthy condition leading to Samson's injuries.

American was aware that it required 16-hour shifts, with no days off, for months at a time on Samson's boat, the F/T American Triumph. Another employee, Alan Davis, stated that other boats use 12 and 14-hour shifts and that the company, American, was experiencing with shorter shifts to see if those shifts were better for the seaman.

 Davis also testified that the 16-hour shifts were shocking to him when he first entered the industry standard. However, Davis grew to accept this as the industry standard.

Samson fell during the final hour of the 16-hour shift and had previously complained to American Seafoods that his shift was too long and caused him to be exhausted. Samson's job involved lifting and flipping 70 lb trays of frozen fish.

At the time of his injury, Samson tried to shift his weight when his legs gave out under him as the boat rolled.

Samson filed this action under Jones Act negligence, and unseaworthiness. American moved for summary judgment and the district court granted it. Samson appealed to this Court.

Issue:                                                                                                                                           
Did this Court find that Ili presented issues of material fact whether requiring Ili to work 16-hour shifts, months on end, was negligent and that the negligence caused Ili's injury?

Held:
There was no dispute that Samson was a seaman and that American owed him a duty to provide a safe work environment under the Jones Act. Therefore, American owed Samson a duty to provide a reasonably safe workplace for Samson.

Moreover, this Court found that a reasonable jury could have concluded that requiring Samson to work a 16-hour shift was a breach of American's duty to provide a reasonably safe work environment. This Court relied on Davis's deposition in which he stated that American used shorter shifts on other boats in an experiment to see if those shifts are better for the seamen. Accordingly this Court found, Samson created genuine issues of material fact as to whether American was negligent by failing to act resonably, under the circumstances. in providing a safe place to work.

This Court also found that Samson established sufficient causation to survive summary judgment on the Jones Act claim. The Court noted that the Jones Act claim standard for causation only requires that the employer's negligence be a cause, however slight, of the injury.

This Court held that the length of the shift and Samson's duties, including flipping 70 lb trays of frozen fish, created a genuine issue of material fact whether the length of his shift played any role, however slight, in causing his fall and subsequent injury.

Also, the Court considered Samson's unseaworthiness claim. Both parties conceded and it is undisputed that Samson is a seaman and thus, entitled to a warranty of seaworthiness. This Court noted that lack of adequate crew is a basis for unseaworthiness and that requiring a crew to work 16-hour shifts for months on end could indicate that the ship is not adequately manned with crew to perform its duties in a seaworthy manner.

Finally, the Court considered whether requiring the crew to work 16-hour shifts every day was a substantial factor in causing Samson's injury. This standard requires a showing of a higher degree of causation than a Jones Act negligence claim.

This Court recognized that the same evidence supporting Samson's Jones Act claim also supports his unseaworthiness claim, and rather than parsing and affirming/denying the district court's ruling in parts, this Court reversed and remanded Samson's claim for a jury to determine.

Ultimately this Court reversed the granting of summary judgment.

Comment:
In bringing a Jones Act claim for neglgience, the plaintiff must establish first, that their employer failed to act in a reasonably prudent manner, much like under common law negligence,  and thus breached their duty to provide a safe work environment.  

Once the plaintiff is able to establish the employer's negligence, they then move onto causation. The plaintiff need to only show that the employer's negligence, was a cause, however slight, in causing his/her injury. This is known as a "featherweight" standard of causation under Jones Act negligence claims.

The plaintiff has a higher burden to show that the employer was negligent but a featherweight burden in showing that the negligence played a role in causing the injury.

Steve Gordon

Background:
In this action, the Court considered the meaning and scope of an endorsement to an insurance policy excluding coverage for claims or suits against an insured brought pursuant to the Longshore and Harboer Worker's Compensation Act ("LHWCA").

In 2002, Bayou Steel Corp engaged Memco Barge Lines under a contract of affreightment to transport steel bundles by barge from Bayou's facility. Bayou loaded the barge and hired Kindra Marine Terminals, a stevedoring company, to unload the barge upon arrival.

While unloading the barge, Ryan Campbell, a Kinder employee, suffered substantial injuries.  As a result, Campbell filed suit against Bayou in Illinois state court.

Bayou's primary insurer accepted coverage and defense for Campbell's claims against Bayou. Bayou's primary insurer, excess wharfinger insurur, and excess insurers initially denied coverage.

Bayou brought suit against all of their insurers who had denied coverage of Campbell's claim.

The parties filed opposing Motions for Summary Judgment and presented coverage issues to the district court.

The district court granted Evanston's (excess wharfinger insurer) Motion for Summary judgment holding that Campbell's claims against Bayou were pursuant to the LHWCA and thus, the policy provided no coverage.

Issue:
Did this Court affirm the district court's granting of summary judgment in favor of Evanston holding that the LHWCA prevented Bayou from asserting coverage?

Held:
Bayou argued that Evanston's policy exclusion for suits brought "pursuant" to the LHWCA, does not exclude coverage for negligence claims brought by longshoremen against third parties.

This Court relied on another case in which an exclusion clause provided that claims would not be covered that resulted from,  "any losses arising out of injuries covered under the LHWCA". However, this Court noted Evanston's exclusion clause provided exclusion for "claims made or suits brought pursuant to the LHWCA".

Accordingly, this Court examined the nature of Campbell's claim against Bayou rather than looking at whether his injuries were covered under the LHWCA.

This Court found that Campbell's claims are unaffected by LHWCA's exclusivity provision. And therefore, Campbell's claim cannot be characterized as a claim "pursuant to" the LHWCA exclusion. Accordingly this Court found that Evanston had to provide coverage consistent with their respective policies.

Comment:
Wharfinger's insurance is insurance designed to cover work performed on  a wharf, often covering the activities of stevedore companies and longshoreman.

Some insurance companies will not cover claims that may be brought under the LHWCA because of the possible amount plaintiffs might be able to recover under the Act.

Here, because the claim was not one brought pursuant to, as drafted by the insurer, the insurance exclusion did not include the plaintiff's claim.   

Background:
Employee, Jose Pedroza, petitioned for review the Benefits Review Board ("BRB") denial of benefits under the Longshore and Harbor Workers' Compensation Act ("LHWCA") for psychological injuries due to National Steel & Shipbuilding Company's (employer) adverse personnel actions in response to Pedroza's causing an explosion at harbor by striking a 440-volt cable line while unloading a ship.

Pedroza, and employee of National Steel brought this appeal to review the determination of the BRB that claimed Pedroza was not entitled to benefits under the LHWCA because of psychological injuries caused by National Steel's legitimate adverse personnel decisions.

While Pedroza was unloading an US Naval ship, he struck a 440-volt cable line causing an explosion. Pedroza did not seek medical treatment but claimed he suffered anxiety after the accident.

National Steel wrote a letter to Pedroza about the accident and informed him the accident was caused by his negligence and subsequently sought treatment. Pedroza countered with a letter denying responsibility and containing an apology. Pedroza also complained against National Steel for their disregard for his health and well being following 25 years of service. Pedroza further asserted he was unfairly treated by National Steel for their failure to write a similar letter to the rigger who accompanied him during the accident.

Following a meeting, in which the Union Safety Supervisor warned Pedroza to improve his performance, Pedroza improved his performance for a short period of time. Pedroza went on leave for 3 months following 4 memos, written by supervisors, outlining his poor work ethic.

Pedroza finally went on medical leave, on request of his doctor, and filed a workers' compensation claim for psychological injuries caused by his stressful working conditions.

The Administrative Law Judge, and both parties concede, that Pedroza's psychological injuries were a result of legitimate personnel actions.

This Court therefore had to determine whether psychological injuries resulting from legitimate personnel actions are compensable under the LHWCA.

Issue:
Are psychological injuries, resulting from legitimate personnel actions, compensable under the LHWCA?

Held:
Pedroza conceded, that his psychological injuries were not caused by general working conditions, but caused by legitimate personnel actions.

However, the BRB found that psychical injuries resulting from legitimate personnel action is not the type of injury that was intended to be compensable under the LHWCA. The Court reasoned that to recover for psychological conditions, it must have been caused by general working conditions.

The BRB, in Marino (20 B.R.B.S. 166 (1998) determined layoffs or reduction in force do not constitute "working conditions" giving rise to a compensable injury under the LHWCA. There, the Board instructed the ALJ to determine whether injuries were caused by "cumulative stress on the job due to supervising a number of locations and insufficient personnel to perform the job" among other things.

The Board in Marino believed that granting compensation to employees for psychological damages for rightful layoffs would hinder employers from making legitimate personnel decisions.

Accordingly, the BRB, in examining Pedroza's claim, found that these were not the kind of injuries the LHWCA was designed to compensate.

Pedroza argued however, that this interpretation differed from many state compensation laws and that the LHWCA should follow in the same light. Pedroza pointed to the fact many state boards did not even examine whether the employer(s) engaged in legitimate personnel decision. Therefore, according to Pedroza, the compensation should be made without inquiring into the legitimate personnel decisions.

However, this Court found that the BRB's interpretation of Board precedent is a reasonable interpretation of the LHWCA and an accurate reflection of its underlying policies.

Accordingly, this Court affirmed the BRB's denial of Pedroza's compensation claim for his psychological injuries.

Comment:
Underlying the BRB's decision here was something called the Marino-Sewell doctrine. In Marino, (20 B.R.B.S. 166(1998)) The BRB held, under an interpretation of the LHWCA, that an employee's psychological reaction to a legitimate, good faith personnel action, were not compensable.

On the other hand, in Sewell (32 B.R.B.S. 127 (1997)) The Board held that a claimant must demonstrate that his psychological disability was caused by stressful working conditions regardless of disciplinary and termination proceedings and were therefore compensable.

Arising from these BRB decisions is something called the Marino-Sewell doctrine in recognizing compensable claims under LHWCA for psychological injuries. These two decisions represent a balance, for the employee who has suffered psychological damage and the employee who has exercised its right to rightfully terminate/layoff an employee.

Steve Gordon

Findings of Fact - Conclusions of Law
This case was originally tried on October 22, 2009 as non-jury trial. Following the presentation of Anthony Mier's ("Mier") case, the defendant, Wood Towing LLC ("Wood Towing") moved for Judgment on Partial Findings. The following are the findings of fact and law

The Court had denied Wood Towing's motion for partial summary judgment which can be viewed here: http://www.jonesactquestions.com/federal-circuits-a-state-decisions/598-david-anthony-mier-v-wood-towing-llc-et-al-.html

Mier slipped and fell while working as a deckhand while working aboard a barge owned by ARTCO. Mier filed an action under the Jones Act and unseaworthiness. At trial. Mier presented testimony of another deckhand. The other deckhand testified that the puddle Mier slipped in was slick and had been on the deck for "a while".

Furthermore, the witness did not consider the puddle to be out of the ordinary and that had he seen it he would not have reported it because the deckhands were instructed to keep decks clean and free of debris and water.

According to testimony, the puddle was open and obvious and did not think it presented a problem and also acknowledged brooms and buckets were available to clean the puddle.

The boat captain testified he had inspected the deck from the position of his wheelhouse, 30 feet away from the location of the puddle, and observed no puddle on the deck. He also stated that the deckhands' duties were to clear puddles such as the one Mier slipped in and Mier's method to tighten the winch (activity he was performing while injured) was unusual.

The operations manager for Wood Towing also testified that it was routine to walk through water and grain on the job and while performing duties carried out by Mier.

Mier testified that he climbed onto the winch, and as he put his left foot to the ground, his feet went out from under him causing him to fall backwards onto the manhole cover. He described there were "puddles everywhere" but that they "just come with the job" moreover, he also stated that deckhands must "deal with spoiled meal (grain) on the deck". Mier further admitted the puddle was open and obvious and he saw it in the 25 minutes he was on the barge and although he thought it was hazardous he failed to report .

This Court found, while a third party barge owner has a duty to exercise reasonable care, the employees also have the duty to exercise reasonable care for their own safety. 

Accordingly, this Court held that Mier failed to present sufficient evidence to prove by a preponderance of the evidence that either defendant, Wood Towing or ARTCO, breached a duty owed to plaintiff.

Comment:
This is strictly a finding of fact and conclusion of law issued by the Court.  As stated previously by this Court, a third party barge owner, such as ARTCO, has a duty to exercise reasonable care under the circumstances. Moreover, the employer, Wood Towing, has a duty of care to the employee in certain circumstances.

However, when fellow employees, and the plaintiff himself testify that the condition which caused the plaintiff injury was 1. Noticed  and 2. Normal in the work environment, proving the employer's breach of a duty of reasonable care under the circumstances becomes significantly more difficult.

Because the plaintiff, Mier, was unable to show that the owner of the barge or his employer breached a duty of care this Court dismissed his action.

Steve Gordon

Background:
National Maintenance and Repair appealed from an order of the circuit court which confirmed a decision by the Illinois Workers' Compensation Commission ("Commission") awarding Roger Gale ("Gale") benefits under the Worker's Compensation Act ("Act").

National operates a repair facility for barges and towboats that cross the MIssisssippi River. Gale had been employed by National for 17 years. Gale was working on a "plant barge" when an I beam fell on his left middle finger. Gale was taken to the emergency room to have the tip of his finger amputated.

The plant barge, according to Gale is held in place by mooring lines connected to the shore and a spud - a two-foot square tube that runs vertically through the barge and into the bottom of the river. Electrical lines run from the shore to the plant barge and ramps allow vehicles to be driven on and off the barge.

The plant barge floats on the Mississippi with no motor or navigational system. Gale admits it could be towed elsewhere by disconnecting the mooring lines, cutting the electricity, and removing the spud. The plant barge has not been moved since it was put in place 5-6 years ago.

An arbitrator found that Gale suffered an accidental injury arising out of and in the scope of his employment with National. The arbitrator specifically found that the plant barge was a land-based facility and therefore, concurrent state and federal jurisdiction over Gale's injury existed. The arbitrator awarded Gale disability benefits and ordered them to pay for certain medical expenses incurred.

National filed a petition for review and the ruling was affirmed.

Issue:
Did the circuit court err in affirming the arbitrator's award of disability and medical expenses to the claimant, Gale?

Held:
National contended that Gale was injured on navigable waters and engaged in traditional maritime activity and therefore, the Longshore Harbor Workers' Compensation Act ("LHWCA") provided the exclusive remedy to award Gale benefits.

This Court recognized long standing precedent that an employee, who is performing a traditional maritime function, and is injured on navigable waters cannot recover benefits under the state's compensation laws.

Both parties do not dispute whether Gale was engaged in traditional maritime activity at the time of his injury (ship repair).

However, under the LHWCA, it is required that a watercraft be capable of being used as a means of transportation on water, as opposed to being permanently moored or otherwise rendered incapable of transportation in order to find it a vessel.

National argued that it is physically possible to move the "plant barge" by towing it to another location. However, because the undisputed evidence revealed that the plant barge was affixed to the shore with mooring lines and a spud, and that it receives its electricity from land-based source that it has been permanently moored and therefore, is not a vessel.

Accordingly this Court found that Gale was injured on a land-based structure and that the arbitrator properly concluded it had jurisdiction over the matter.

Comment:
The Supreme Court in Sun Ship Inc. v. Pennsylvania, 447 U.S. 715 held that the 1972 amendments to the LHWCA, which extended federal jurisdiction to land-based injuries, supplemented rather than supplanting state workers' compensation laws.

This eliminated the risk of injured employees guessing wrong in choosing the appropriate remedy, state or under the LHWCA when attempting to recover from their employers.

Steve Gordon

Background:
John Jones, plaintiff, sustained injuries while working for Cooper T. Stevedoring Co, Inc (Cooper). Jones was injured in the hold of a cargo barge in the Mississippi River as a longshoreman. Jones filed an action under the Jones Act, and alternatively under the Longshore Harbor Workers' Compensation Act ("LHWCA") for vessel negligence.

The cargo barge Jones was working on was moored to a crane barge owned by Cooper. At the time of his injury, Cooper was responsible for using the crane on the crane barge to transfer cargo from the hold of another vessel. Jones's duty was to unhook the cargo as it was lowered onto the cargo barge by the crane. Jones was injured when a load of cargo struck him and pinned him against the wall of the barge.

After filing under both the LHWCA and Jones Act, the district court granted summary judgment in favor of Cooper on the Jones Act claim, holding he did not qualify as a seaman and also on the LHWCA claim upon finding Jones's injuries were not caused by negligence of the vessel but negligence of persons providing stevedoring services to the vessel.

Jones appealed the granting of summary judgment against his LHWCA claim.

Issue:
Did the District Court err in finding Jones's injuries were caused by negligence of other people providing stevedoring services rather than vessel negligence?

Held:
Jones argued that there are genuine issues of material fact whether the employees that he contends were negligent were acting in their capacities as stevedores or agents for the vessel owners.

Jones asserted Casey Curtis, the job superintendent, was negligent in conducting the safety meeting before the operation by failing to hold the meeting with both longshoremen and crane operators. Jones also alleged that Stephen Taylor, the crane operator who oversaw a trainee operating the crane when the incident occurred, was negligent in his supervision of the trainee. Specifically, Jones claimed that the trainee operated the crane differently than what the longshoremen expected.

Accordingly, Jones argued that these acts of supervisory negligence were related to the "corporate concern and interests" of Cooper and therefore, the actions were made in the employees' capacities as the agents of the vessel owner.

This Court, however, found that these acts of negligence were in the men's capacities as stevedores. Holding an improper safety meeting and improper supervision of a trainee loading and unloading cargo relate to traditional stevedoring activities and have no ascertainable tie to vessel negligence.

This Court held that the alleged negligence does not relate to vessel conditions or a vessel mission but that it relates solely to stevedoring operations and therefore the district court's granting of summary judgment was proper.

Comment:
The LHWCA creates a compensation scheme for injured longshoremen, much like state workers' compensation laws, that generally replaces negligence causes of against employers. Longshoremen, however, are permitted to sue for injuries resulting from negligence of a vessel.

A vessel owner may be liable to an employee injured during the stevedoring operation under three circumstances.

1. The owner fails to warn on turning over the ship of hidden defects, of which he should have known

2. For injury caused by hazards under the control of the ship and

3. If the vessel owner fails to intervene in the stevedore's operations when he has actual knowledge of the hazard the stevedore, in the exercise of improper judgment, means to work on in the face of it and therefore cannot be relied on to remedy it.

Steve Gordon  

Background:
Plaintiff, Frank Feulufai ("Frank"), filed an action seeking damages under the Jones Act against defendants. Frank also sought recovery for unseaworthiness and maintenance and cure.

The defendants, during the course of discovery, have filed a motion to exclude the testimony of Frank's expert, Dr. Barry H. Greenberg.

Issue:
Did this Court grant defendants' motion to exclude expert testimony offered by the plaintiff?

Held:
Defendants contended that Frank deliberately failed to disclose Dr. Greenburg as a retained expert in initial expert disclosures and merely characterized him as a rebuttal expert to avoid the consequences of "planned deception".

Defendants claim this is part of "clever subterfuge" by Frank to use Dr. Greenburg as his principal cardiologist expert to provide key medical issues which he has the burden to prove.

Defendants claim that none of the opinions offered by Dr. Greenberg in his expert report are given in response to or rebuttal of any opinions offered by Defendants' expert.

However, this Court found that there was no evidence of "subterfuge" or "deception" before the Court that would justify an order excluding Dr. Greenburg as a rebuttal expert witness.

The defendants, according to this Court, did not provide their own expert's report with which the court could make or draw its own conclusions. Therefore, it was not possible for this Court to determine whether Dr. Greenburg's report rebuts or refutes Defendants' expert's reports.

Accordingly, this Court denied defendants' motion to exclude Dr. Greenburg's testimony.

Comment:
During litigation both plaintiffs and defendants will attempt to persuade the court into finding in favor of their own "set of facts" by introducing expert testimony.

There are two such experts, rebuttal and affirmative experts.

Affirmative experts are used to provide testimony on factual issues for which the proponent (person introducing the expert) bears the burden of proof. They may also be used by a defendant who is asserting an affirmative defense.

On the other hand, a rebuttal expert is used to contradict findings introduced by the other party's affirmative expert. The main job of the rebuttal expert is to convince the jury (or in a bench trial, the judge) to reject the affirmative expert's opinion.

Steve Gordon

Background:
Before this Court were two motions in limine to exclude expert testimony. Plaintiff, Jeffrey Justrabo ("Justrabo"), was a deckhand aboard the M/V Delta Traveler, owned and operated by defendant, Delta Towing, L.L.C. ("Delta").

Justrabo filed this action under the Jones Act, alleging he suffered his injuries as a result of Delta's negligence and unseaworthiness of the M/V Delta Traveler. Moreover, Justrabo sought damages for maintenance and cure, past pain and suffering, future pain and suffering, lost wages, and past and future medical expenses.

Delta has filed a motion in limine to strike the expert testimony of John Mander and Robert Borrison. Justrabo filed a motion to strike the expert testimony of Ronald Campana,.

Issue:
Did this Court grant both or either motions in limine to strike expert testimony?

Held:
Delta, sought to exclude Manders' testimony because it contains "little more than inadmissible legal conclusions and provides no opinion which might assist this Court in rendering judgment".

This Court found that Manders' report contained some inadmissible legal conclusions such as the conclusion that Delta employees acted negligently and the ship was unseaworthy. However, this Court also found that Manders' report also contained admissible opinions as to whether the Delta crew acted prudently and as to the safety of the vessel. Accordingly, this Court declined to strike Manders' entire testimony but would not permit him to testify to objectionable legal conclusions.

Also, Delta attempted to strike another expert's testimony, Robert Borison a crane safety expert. Delta argued that Borison does not have the requisite experience or knowledge to render an opinion in this case. Specifically, Delta contended that Borison has never been employed as an offshore crane operator and he is not qualified to render expert testimony with respect to back-loading cargo on a vessel.

Borison is a certified crane operator and has experience as a crane safety supervisor and experience working on offshore vessels.  As such, this Court found that Borison's experience qualified him to testify as a crane safety expert.

Finally, Justrabo moved to strike defendants' expert's, Ronald Campana, testimony. Justrabo argued that it (1) lacks a complete statement of all data and information considered, (2) portions of the stated opinions fail to express the basis and reasons for such opinions and (3) the information relied upon by the expert is incomplete and based on insufficient data and pure speculation. However, this Court found that the report complied with the applicable rule of disclosure for expert reports and that Justrabo has the opportunity to cross examine the expert. This Court noted that Campana's report was admissible because it described the matters about which he will testify and the basis for his opinions.

Accordingly this Court denied both Justrabo's and Delta's motions to exclude expert testimony.

Comment:
At issue in this case was the admissibility of expert opinion testimony. Typically, an expert will submit a report to the Court outlining both (1) how he will testify on certain matters and (2) the basis for, or how he reached his conclusion, testifying.

An expert may not testify to legal conclusions, such as "it is my opinion that the defendant was negligent in crane operation". However, he may testify, if he has a sufficient base of expertise, that "the crane was not operated in accordance with typical safety standards". Here, one of the plaintiff's experts' legal reports had legal conclusion. Rather than strike the entire report, the Court precluded the expert from testifying on the legal conclusions but would allow him to give his opinion whether the crew acted prudently and to the safety of the vessel.

Steve Gordon

Background:
Plaintiff, Claire Green-Brown, ("Green-Brown") brought an action under the Longshore Harbor Workers' Compensation Act ("LHWCA") on behalf of decedent, former longshore worker.

Arthur Brown, decedent, worked as a shipping container repairman for Sealand Sercices, Inc. for about 17 years. While working for defendant, Sealand Services ("Sealand"), the decedent was exposed to loud noises and accordingly, filed a timely LHWCA claim for partial disability benefits due to noise-induced hearing loss suffered while he was employed by Sealand.

Sealand conceded that Brown had hearing loss but disputed the extent of the loss. Brown underwent an audiogram five months after his retirement from Sealand to determine his hearing loss. Brown had multiple audiograms with his final one occurring 18 years after retiring from Sealand. The last test included testing at the 3000 hertz frequency, which happened to be the only one that was conducted in accordance with guidelines set forth by the American Medical Association. (AMA)

Sealand argued, before an Administrative Law Judge (ALJ) that it should consider the initial hearing test, conducted merely 5 months following his retirement.

Ultimately, the ALJ found that the initial hearing examination was a better indicator of the decedent's hearing loss than subsequent audiograms performed 18 years after his retirement.

Brown appealed the decision to the BRB which ultimately found that the ALJ was not precluded from crediting the first exam due to a technical lack of compliance with AMA Guides.

Brown petitioned this Court for review of the BRB decision.

Issue:
Did the ALJ and BRB err finding that the first audiogram was the best measure of decedent's work-related hearing loss at the time he retired?

Held:
Sealand's expert acknowledged that the 3000 hertz frequency, used in the final audiogram, gave a little better flection of "what day to day disability might be".

The ALJ found that a reliable test conducted, but that didn't follow AMA Guides, may still be used to determine hearing loss and compensation. The only limitation being that the non-complaint exam cannot be offered as "pre-sumptive evidence of the amount of hearing loss".

The LHWCA mandates all hearing loss determinations must be made in accordance with an audiogram that complies with the AMA Guides. The statute states that an ALJ may credit an audiogram as determinative evidence of hearing loss so long as it complies with certain steps and may further serve as "presumptive evidence" of a hearing loss.

 This Court held that such language was not consistent with the ALJ's finding that the first audiogram could be relied upon because it did not include a 3000 hertz frequency test as required by the AMA Guides.

Accordingly, this Court held that the final audiogram may be the only one used in determining decedent's compensable hearing loss attributed to his work.

Comment:
Under the LHCWA, determinations of hearing loss "shall be made" in accordance to AMA guidelines. The AMA Guides are clear in providing that each ear should be tested separately with pure-ton audiometers at hearing levels recorded at 500, 1000, 2000, and 3000 Hz.

Furthermore it is necessary that the hearing level for each frequency be determined in every subject. The first few audiograms, conducted shortly after the decedent's retirement, did not comply with these regulations. However, the audiogram conducted nearly 18 years following decedent's retirement did and therefore would be the test considered by the ALJ, on remand, to determine compensable loss.

Steve Gordon

Background:
Defendant, Chevron, sought summary judgment and dismissal of plaintiffs' and intervenor's, (Louisiana Workers Compensation Corporation) claim on the grounds that the hole decedent, Alan Bross, fell through was an open and obvious condition for which Chevron owed Bross no legal duty to warn or correct, as a matter of law.

Bross was an employee of Qualitech Services, Inc. ("Qualitech"). Under a Master Service Contract between Qualitech and Chevron Bross provided serves for and under Chevron's supervision.

Bross was contracted to provide supervisory diving services for Chevron by supervising Chevron's contract diving crews and supervising the vessels upon which the divers worked.

Specifically, Bross was in charge overseeing the diving crews who were performing pipeline inspection and repair work. This Court has held that Bross was an independent contractor.

Bross traveled to Chevron's Zulu platform, located in the Gulf of Mexico on the Outer Continental Shelf. Bross was transported to the Zulu platform aboard the M/V MR. CLINT and and shortly after boarding the platform Bross fell approximately 20 feet from the deck of the platform striking his head on the platform's boat landing and falling into the water.

Bross died as a result of a skull fracture.

Issue:
Did this Court grant Chevron's motion for summary judgment finding there was insufficient evidence presented to create genuine issues of material fact?

Held:          
Plaintiffs claimed that because there were no eyewitnesses to the actual accident itself, then there is no definitive evidence as to how the accident occurred. Therefore, Bross falling through defective grating or an open and obvious hole are equally likely scenarios.  

Secondly, plaintiffs contended there were material fact whether Chevron properly warned Bross not to go to the Zulu platform on the day of his death.

Chevron sought summary judgment on the grounds it is undisputed that the hole Bross fell through was open and obvious and therefore owed no duty to warn Bross of or correct the condition. Specifically Chevron asserted that he had this knowledge because of his job responsibilities as a supervisor of Chevron's dive crew and he had been specifically warned about the condition of the platform.

Plaintiffs countered by arguing that Bross was not warned to avoid the platform noting there was no evidence that he was warned by co-workers. Plaintiffs point to the investigation upon Bross's death and that none of the employees stated that Bross was warned.

Ultimately, this Court found that it was more appropriate to determine whether a duty was owed to Bross based upon the open and obvious condition of the hole in the deck because whether or not Bross was warned not to travel to the Zulu platform improperly focused on the subjective awareness of Bross.

Chevron points to testimony of a captain, whom drove Bross to the platform, that he witnessed Bross falling and did not see Bross struggle to maintain his balance. Moreover, the captain testified that he didn't see Bross hit anything during his fall and this, according to Chevron, establishes that the hole was open, obvious, and clear.

This Court found that Chevron's assertions, again, spoke to Bross's subjective intent that he knew of the defect and therefore they owed no duty to Bross. However, this Court found that the appropriate inquiry, again, was not Bross's subjective intent but rather whether the defect was open and obvious.

Accordingly, this Court denied Chevron's motion for summary judgment finding material issues of genuine fact existed whether the defect is open and obvious.

Comment:
Lousiana law governed the substantive inquiry whether Chevron owed Bross a duty to warn him of the defect because Bross claim was governed in part on the Outer Continental Shelf Lands Act ("OCSLA") which adopts the law of the adjacent state as surrogate federal law. (So long as it is not inconsistent with other federal laws)

Accordingly, a landowner (Chevron) owes a plaintiff (Bross) a duty to discovery any unreasonably dangerous condition and to either correct the condition or warn of its existence.

Chevron asserted that Bross "knew" of the defect or "had to know" because it was open and obvious however, according to the law, the plaintiff's subjective intent is the improper inquiry. The inquiry of duty relies on whether the defendant has warned the plaintiff, (introduced evidence to prove that they did) or whether the risk was unreasonable or not (open and obvious - or not)

Steve Gordon

Background:
Diane Wilson ("Wilson") appealed the district court's dismissal of her workers' compensation claim benefits after finding that the Iowa Workers' Compensation Commission did not have jurisdiction of the case.

Wilson was employed as a housekeeper at the Isle of Capri Casino ("Casino") riverboat casino and hotel. While working, Wilson fell on ice and was injured while taking out the trash to the casino's trash compactor.

Wilson sought workers' compensation benefits and the casino denied the claim alleging that the action was governed by the Jones Act.

A district court held that the commission did not have jurisdiction over the claim and Wilson appealed.

Issue:
Did the district Court err in determining that Wilson's claim is not governed by Iowa's Workers' Compensation Act?

Held:
Iowa law provides that if an injured worker is covered by a federal compensation statute, Iowa's workers' compensation laws do not apply.

This Court recognized that if an employee is a "Seaman" under the Jones Act, the workers' compensation commission lacks subject matter jurisdiction to award benefits.

At issue, this Court examined whether the casino boat was a "vessel". This Court found that because the casino boat was capable of being used as a means of maritime transportation and had not lost its character despite its permanent moorage.

This Court found the casino boat to be a vessel under the Jones Act because at the time of the injury the Isle of Capri was fully capable of sailing. This Court found that the district court correctly determined there was not substantial evidence to support the Commission's finding that the casino was permanently moored at the time of Wilson's accident, despite an Iowa law forbidding craft, such as the Casino boat, from sailing.

Accordingly this Court affirmed the district court's ruling that Wilson's claim was not governed by the Iowa's Workers Compensation Act.

Comment:
Under the Jones Act, a seaman must have a substantial connection with a vessel.  The "vessel test", under the Supreme Court, "requires only that a watercraft be used or capable of being used, as a means of transportation on water" to qualify as a vessel.

It does not matter that the watercraft be used primarily for that purpose.

Steve Gordon

Case Name: Daniel Doyle, Anne Doyle v. Leland Graske v. Caribe Inflatables USA, Inc.
Date Decided: September 2, 2009
Court: United States Court of Appeals, Eighth Circuit
Judge: Judge Colloton
Citation: 579 F.3d 898

Background:
Boat passenger and plaintiff, Daniel Doyle, brought an action in admiralty for personal injuries sustained in boating accident off the coast of the Grand Cayman Island when the steering linkage engaged and the boat turned hard ejecting Doyle.

Doyle Brought this action in Nebraska state court claiming that defendant, Graske, was negligent in the operation of the boat.

Graske removed the case to federal district and the court, sitting without a jury, found that Doyle's injuries were caused by Graske's negligence and awarded compensatory damages to Doyle and loss-of-consortium damages to his wife, Anne.

Graske appealed the judgment.

Issue:
Did this Court find that the district court erred in finding Graske liable for Doyle's injuries and ordered Graske to pay compensatory damages and loss of consortium?

Held:
Graske first argued that it was not negligent in operation of the boat.
The District Court found that Graske breached the duty owed to its passengers by bringing the boat on plane while Doyle was seated in "a position of danger".

Second, Graske contended that the negligent operation of the boat was a proximate and substantial cause of Doyle's injuries. This Court noted that only upon a finding of clear error by the district court would it reverse this finding.

This Court found that had Graske exercised reasonable care by waiting to accelerate until Doyle was seated then he would not have been injured.

Finally, Graske challenged the district court's award of loss-of-consortium damages to Doyle's wife. Graske contends that general maritime law does not allow recovery for loss of consortium by the spouse of a nonseafarer negligently injured beyond the territorial waters of the US.

A "nonseafarer" is someone who is neither a seaman covered by the Jones Act nor a longshore or harbor worker covered by the Longshore and Harbor Workers' Compensation Act.

This Court found that in the recent Atlantic Sounding case, awarding punitive damages for the willful/reckless withholding of maintenance and cure, did not establish an admiralty rule authorizing loss-of-consortium damages as a general matter. In cases where loss of consortium had been awarded appropriately, the injured person was either a longeshoreman or seaman.

Accordingly this Court affirmed the District Court's awarding of compensatory damages but reversed the loss of consortium award.

Comment:
This case touches on whether general maritime law allows the recovery for punitive damages. The short history of loss-of-consortium damages in admiralty consists of only a few cases.

The Supreme Court in one case, recognized the right to recover loss-of-consortium for nonfatal injuries to a spouse in the territorial waters of the United States. Here, however, Doyle was outside the territorial waters of the US.

Steve Gordon

Background:
Razo, a citizen of the Phillippines ws employed on the cruise ship M/V Empress of the Seas. Royal Caribbean ("Caribbean") was the operator and bareboat charterer of the M/V Nordic Empress.

Razo claimed that he was injured during a lifeboat drill and brought various claims against numerous parties in NJ state court, including Jones Act and unseaworthiness against Royal Caribbean and Nordic.

Razo was employed by the terms of a collective bargaining agreement that incorporated a Philippine Overseas and Employment Administration ("POEA"). Under the agreement Royal and Nordic successfully compelled arbitration of Razo's claim.

Razo appealed the District Court's order of arbitration arguing that the claims were not removable under the Savings to Suitors Clause and the anti-removal statute applicable to Jones Act and the Federal Employers' Liability Act.

 Issue:
Did this Court find in favor of Razo holding that his claims were not removable pursuant to the Savings to Suitors Clause and anti-removal statute?

Held:
Razo argued that the district court erred in ruling that an arbitration agreement existed between himself and Royal Caribbean at the time of the injury. However, this Court found that the district court did not err in determining an arbitration clause controlled despite the existence of a conflicting clause which stated disputes were to be adjudicated in the "proper courts of Manila..".

Razo also contended that the agreement is unenforceable under the New York Convention Act. However, this Court found that the Act compelled arbitration because there was an agreement to arbitrate, the Philippines is a signatory to the Convention and Razo is not a US citizen.

Finally, the Court found that the district court was correct in ruling that Razo's reliance on the Jones Act and FELA was misplaced. Accordingly the district court correctly found that the forum for arbitration was in the Philippines because the Convention Act provides separate basis for jurisdiction, including claims under seaman employment contracts.

Comment:
The NY Convention Act requires that the parties must go resolve their disputes through arbitration if the following requirements are met:

1. There is an agreement in writing to arbitrate the dispute

2. The agreement provides for arbitration in the territory of a Convention signatory

3. The agreement arises out of a commercial legal relationship and

4. A party to the agreement is not an American citizen.

Steve Gordon

Background:
Plaintiff, Joshua Redmond, ("Redmond") was injured while employed aboard  the M/V LORELAY in the North Sea. Redmond alleged that the vessel was unable to maintain its position in rough seas and as a result, he subsequently suffered severe and permanent injury to his back and other parts of his body.

Redmond filed an action under the Jones Act and general maritime law for physical pain and mental anguish, along with a claim seeking maintenance and cure. Redmond filed this action in the Eastern District of Louisiana against Poseiden, a Swiss entity that does not maintain an office or presence in Louisiana.

Redmond sought to take a deposition of Poseiden's corporate representatives in New Orleans, Louisiana. Poseiden objected to on the basis that all its corporate representatives and relevant documents are located in Europe and filed a Motion to Quash and a Motion for Protective Order requesting that Poseidon's corporate representatives be deposed in the Netherlands rather than New Orleans.

The Magistrate Judge issued an Order directing the deposition to take place via videoconferencing with counsel to participate from their offices.

Poseidon filed this motion objecting to the Magistrate Judge's Order in that it means that the deposition must be taken with counsel participating in their offices  and that requiring counsel to remain in their office during the deposition it denies their right.

Issue:
Did this Court find that Poseidon has a right to counsel present during the videoconference deposition?

Held:
Poseidon supported their argument by noting that Redmond's deposition was taken in the presence  of his attorneys. Accordingly, Poseidon argued that it also should be given the same opportunity to have its counsel present when its representatives are deposed.

Poseidon contended that directing the videoconference created a dangerous precedent by prohibiting their counsel from faithfully and diligently performing its duty as counsel during cross-examination by an opposing counsel and is contrary to Fifth Circuit precedent.

Moreover, Poseidon further argued that the deposition should be taken in the Netherlands because Redmond sought out and accepted employment with an international corporation and chose to sue Poseidon on his own volition.

Redmond countered noting that district courts are given broad discretion in determining the location of depositions on a case-by-case basis. Redmond claimed that the Magistrate Judge weighed all the relevant factors and properly concluded Poseidon could choose to bring its corporate representative to New Orleans or to have the deposition in the Netherlands requiring counsel to remain at their offices in the US.

Redmond further argued that Poseidon's attempt to force Redmond to depose Poseidon's employees in the Netherlands violated the Federal Employers' Liability Act, which prohibits a Jones Act employer from engaging in any device that prevents a Jones Act seaman from obtaining information from any employee as to the facts incident to the seaman's injuries.

This Court affirmed the choices given by the Magistrate because it failed to find a "clearly erroneous and contrary to law" decision made by the Magistrate. Moreover this Court found that ordering the deposition through a videoconference was not clearly erroneous.

Finally, this Court found that Poseidon has a right to have counsel present during the deposition and therefore found that the Magistrate's decision to not allow counsel present during the deposition was clearly erroneous.

Comment:
The defendant, Poseidon, argued that the plaintiff should be expected to travel to the Netherlands because (1) he chose to work for an international company and (2) on his own accord, sued the Netherlands based company.

However, Redmond, the plaintiff, did not choose to be injured  as a result of Poseidon's alleged negligence and unseaworthiness of the vessel. Accordingly, the Magistrate gave Poseidon two choices, 1. Conduct the deposition via videoconference or 2. Require Poseidon's representative(s) to travel to New Orleans.

Steve Gordon  

Background:
Plaintiff, Benjamin McCuller ("McCuller") was employed by Halliburton Energy Services at a marine terminal in Louisiana. Defendant, Nautical Ventures ("Nautical"), owned and operated the M/V CLegend ("C-Legend"). 

McCuller was working on the C-Legend when it came off dry dock and was instructed to attach hoses to the vessel's manifold to accomplish cement loading. A rung on a ladder used by McCuller broke while climbing into the ship and he fell five feet sustaining injury.

McCuller filed this action against the vessel owner alleging negligence in improper mooring, failing to give safe ingress, and vessel negligence under General Maritime Law.

McCuller's wife, sought loss of consortium under General Maritime Law.

Nautical denied liability and claimed the ladder was not damaged prior to deployment. Moreover, Nautical claimed if the ladder was damaged at the time of injury the damage was open and obvious to anyone using the ladder, including McCuller.

Issue:
Did this Court find in favor of McCuller and hold Nautical liable for his injuries?

Held:
This Court found that Nautical, as the vessel owner, had a duty to insure that the ladder provided was not damaged prior to deployment.

This Court further found that had Nautical completed a proper inspection, they would have discovered defects in the ladder.  Moreover, this Court found that McCuller did not have the same access to or view of the defective ladder nor did he have experience or training to alert him as to what to look for.

Also, this Court considered McCuller's negligence attributable to his injuries. This Court found that McCuller's holding of a clipboard while climbing the ladder was negligent and contributed to his fall and subsequent injuries.

Accordingly this Court apportioned 70% of fault to Nautical and 30% to McCuller.

Comment:
In this case, the Court examined the fault of the plaintiff attributable to plaintiff's injury. In order to determine the negligence of the plaintiff, courts will take into consideration the requisite skill and special knowledge possessed by the plaintiff. That is, a more experienced worker is held to a higher standard than a less experienced one.

The Court here found that the plaintiff, from his vantage point, had no way to discover the damage or have reason to know the ladder was in a damaged condition.

Steve Gordon  

Background:
Defendants, Jason Lennep and F.A. Richard & Associates, Inc. ("FARA") filed a motion to dismiss in response to plaintiff, Freddie Hammonds ("Hammonds"), claim against FARA for workers compensation alleging foot and back injuries.

Hammonds was injured while working for Northrop Grumman Ship Systems and filed a workers compensation claim. In 2005, Hammonds and Northrop Grumman entered into an agreement in which Northrup would continue to pay Hammonds' past and future medical expenses pursuant to section 7 of the Longshore Harbors' Workers' Compensation Act ("LHWCA").

In September of 2008, Hammonds alleged that his physician determined he needed surgical lumbar fusion as a result of the back injury. Hammonds claimed that Lennep, the FARA employee assigned to handle his claim, failed to respond to repeated claims that Lennep failed to respond to repeated requests for pre-approval of the surgery. Hammonds filed this action alleging that Lennep and FARA have breached the settlement agreement and have acted with negligence and gross negligence in handling his request for pre-approval of the fusion.

Hammond also claimed that FARA failed to reasonably investigate his claim in Circuit Court of Mississippi.

The defendants removed this case to this Court asserting diversity and federal question jurisdiction. Alternatively, defendants filed a motion to dismiss alleging that defendants' negligence and failure to investigate claims are preempted by the LHWCA.

Also, defendants argue that because they were not a party to the settlement agreement than as a matter of law, Hammonds' breach of contract claims must fail as a matter of law.

Issue:
Did this Court grant defendants' motion to dismiss holding that Hammonds' claim is preempted by LHWCA and breach of contract claim because they were not a party to the settlement agreement?

Held:
First, FARA argued that the breach of contract claim should be dismissed because FARA was not a party to the settlement agreement. This Court found that FARA is not a party to the agreement and there was no evidence before the Court that FARAS was a party to any agreement entered with Hammonds or for the benefit of Hammonds.

Accordingly, this Court dismissed Hammonds' breach of contract claim.

Moreover, defendants argued that all the other claims against defendants are barred by the exclusivity provision of the LHWCA.

This Court had previously found that Hammonds' negligence, gross negligence, and failure to investigate claims against Lennep are barred by the exclusivity provision. Accordingly, this Court holds that Hammonds' claims against FARA are barred for the same reasons.

Because Hammonds did not request permission to amend his complaint upon the granting of the motion to dismiss and that this Court found it unlikely Hammonds would be capable of stating a claim against the defendants that is not barred by the LHWCA, this Court found that Hammonds should not be allowed to amend his complaint.

Comment:
Often, if a complaint is dismissed then Courts will usually allow the plaintiff to amend his/her complaint in order to sufficiently state a claim for which relief can be granted. Usually, the plaintiff will request permission that upon dismissal he/she may be able to amend the complaint.

However, if the Court finds that it is highly unlikely that the plaintiff will be able to state a sufficient claim than it will be dismissed with prejudice.

Steve Gordon  

Background:
Plaintiff, Clayton Hogue ("Hogue"), filed this action against defendant, Pride Offshore ("Pride"), under the Jones Act alleging he suffered a shoulder injury while employed by Pride. Hogue filed this action under diversity jursidction.

After filing his initial complaint, Hogue filed a first supplemental and amended complaint deleting his reference to diversity jurisdiction and stated the court's jurisdiction fell under Jones Act, general maritime law, and Admiralty.

Hogue designated the matter as a non-jury trial and removed the jury trial request. Pride, in their answer, asserted a demand for jury trial but did not address Hogue's designation of the matter as a non-jury trial.

The action was currently set before a jury trial but the court asked, at a pre-trial conference, both parties submit a brief in support of their positions whether this case should proceed before a jury.

Issue:
Did this Court find that this action shall be tried in front of a jury?

Held:
Hogue argued that Pride did not have a right to trial by jury because he properly pled Admiralty jurisdiction, and when Pride filed its answer, no right to trial existed.

Pride countered claimed a constitutional right to jury because the original complaint in the matter was filed before diversity jurisdiction and that Hogue may not deprive them of this right unless the requirements of FRCP 39 are met.

This Court considered whether Hogue could amend his complaint to request that the matter proceed as a non-jury trial.

This Court ultimately found, that because Hogue filed his amended complaint, with no jury demand, prior to Pride's answer then Hogue had made a clear pleading of an admiralty claim.

Accordingly, this Court ordered this action proceed without a jury as pleaded by the plaintiff.

Comment:
This area of law, whether a subsequently pleaded amended complaint, by the plaintiff,  could  proceed without a jury although a jury had been demanded in the original complaint. This Court found in favor of the plaintiff because the amended complaint, taking away the jury trial and diversity jurisdiction claim.

Steve Gordon

Background:
This case is a declaratory judgment action involving the right of a cruise ship employee to receive maintenance and cure benefits.

Decedent Eduardo Whitefield ("Whitefield") was employed by plaintiff, Royal Caribbean Cruises, Ltd. ("Royal Caribbean"). Following Whitefield's employment he received maintenance and cure benefits for a number of health issues. Royal Caribbean determined that he reached maximum medical improvement and discontinued Whitefield's maintenance and cure payments.

Royal Caribbean filed this action seeking a declaration that it was no longer obligated to continue Whitefield's maintenance and cure benefits after they were terminated. Whitefield countered by filing an action seeking relief under the Jones Act and general maritime law for failure to provide maintenance and cure benefits.

Whitefield's Jones Act claim alleged negligent failure to provide adequate medical care (Whitefield died following the ending of the payments).

Whitefield moved to dismiss Royal's action because Whitefield had a pending Jones Act claim in state court.

Issue:
Did this Court grant Whitefield's motion to dismiss?

Held:
Whitefield claimed that this action should be dismissed because there was a similar action pending in state court allowing this Court to properly exercise its discretion to dismiss the case. This Court recognized Supreme Court precedent that allows the dismissal of a federal action, that is being held in state court, to avoid interference with the state court litigation.

As such, Whitefield claimed this action should be dismissed in favor of the pending litigation in state court. This Court found that courts have taken a modified approach when the federal declaratory action involves a maintenance and cure claim and a pending state court action includes a Jones Act claim where both cases grew out of a single transaction or accident.

One factor, according to this court is the practicality of conducting a trial on the maintenance and cure claim under the district court's admiralty jurisdiction (without a jury) while the Jones Act claim would be tried in state court with a jury.

Another factor is the role of the Saving to Suitors Clause which establishes a plaintiff's right to jury trials and common law remedies in the forum of the claimant's choice.

Moreover, the Court will examine whether the parties are acting in bad faith to determine the dismissal of the federal declaratory judgment.

This Court found, under these circumstances, that it was likely some findings in this federal case would be res judicata to the state case if this case goes to trial first. The crux of this claim is whether Whitefield had reached maximum medical improvement while the Jones Act claim would have to determine whether Royal negligently cut off Whitefield's right to maintenance and cure.

Accordingly, this Court found that dismissal of this action, a declaratory judgment action for maintenance and cure, when a Jones Act claim is pending in state court.

Comment:
This Court dismissed Royal's federal declaratory action, whether Whitefield had reached maximum medical improvement, because it found that the determinations in federal court, without a jury, would undermine the jury in the state Jones Act claim to conduct their fact finding.

To avoid such injustice, courts are given the discretion to dismiss claims so not to interfere with state court actions.

Steve Gordon

Background:
This action stemmed from the deaths of three longshoremen aboard the M/V Madeline during cargo operations while the vessel was berthed.

Bangor Castle Shipping Company ("Petitioners"), owner and operator of Madeline, was hired as the stevedore to load assorted cargo on the vessel. One item was a tank container filled with hazardous gas. Petitioners prepared the load plan on how the cargoes were to be stowed on board the vessel.

Madeline's cargo hold ventilation/blower system was not working properly to adequately ventilate the subject gas in event of a leak. Petitioners had an opportunity to inspect and repair the ventilation system for the cargo holds prior to the incident but didn't.

During the early morning hours on the date of the incident the vessel's crew, who were lashing down/securing the containers and machinery began to feel ill and reported this to the second mate.

A longshoreman told the crew to continue working while he went to check on the container and 45-60 minutes later was found lying at the bottom of the hold, dead from oxygen deprivation. Two other longshoremen went into the hold to rescue the man and died as well.

Widow of the first longshoremen, Sooknanan brought an action under a Florida Wrongful Death Act ("FWDA") and eight claims under the Longshore Harboer Workers' Compensation Act ("LHWCA"), four of which are premised on the doctrine res ipsa loquitur.

Survivors of the other two men brought similar actions against Petitioners.

Petitioners moved to dismiss the claims on various ground. First, they claim that the Florida wrongful death claims were preempted by federal maritime law and the exclusivity provision of the LHWCA. They also contended that claimants cannot assert claims for unseaworthiness of the vessel and that the claims are not supported by res ipsa loquitur because the tank containing the gas was under the exclusive control of the stevedoring company.

Issue:
Did this Court grant or deny Petitoners' Motion to Dismiss?

Held:
Petitioners first argued that the Florida wrongful death claim was preempted by federal maritime law and the LHWCA.

This Court found that because the decedents were longshoremen, covered by LHWCA, and that the remedy in LHWCA provided is "exclusive of all other remedies against the vessel except remedies available under this chapter" that the Florida Wrongful Death claim is preempted.

Accordingly this Court dismissed plaintiffs' Florida wrongful death claims.

Moreover, because the LHWCA applied then the plaintiffs' unseaworthiness claims are barred. Plaintiffs however, argued that they claim they have identified defects in the Madeline in the course of alleging that defendants breached certain duties and obligations imposed upon a vessel owner.

This Court agreed that they had breached duties and were liable under the LHWCA.

Finally, the plaintiffs have premised their LHWCA claims upon the doctrine of res ipsa loquirur. This doctrine permits a plaintiff to prove negligence through circumstantial evidence.  

Plaintiffs argued that the decedents were without fault with regard to the gas incident but that the ventilation/blower system of the Madeline was under exclusive control of Petitioners and the vessel.  

Petitioners countered that plaintiffs had not made out a RIL claim because the instrumentalities that caused the deaths were at all material times under the exclusive control of decedents' employer.

However, the Court found contrary to the Petitioners' claims. The Court found that at the time the crew reported to one of the decedents they felt ill the Vessel's crew had "complete possession, custody and control of the hold and the cargo inside, including the container filled with gas".

At the time of the incident, the longshoremen were not in exclusive possession and control of the cargo and its operations. Rather the vessel's crew had control for lashing and securing. As such, this Court held that the plaintiffs' have stated claims against Petitioners for res ispa loquitur negligence.

Accordingly this Court denied the Petitioners' motion to dismiss against the plaintiffs' claims.

Comment:
This Court examined the applicability of res ipsa loquitur, which is latin for "the thing itself speaks".

The doctrine will apply if (1) the injured party was without fault (2) the instrumentality causing the injury was under the exclusive control of the defendant, and (3) the mishap is of the type that ordinarily does not occur in the absence of negligence.

The second prong was examined by this Court. The Petitioners claimed that the stevedoring employer had complete control of the operations, however, at the time of the incident, this Court found that the vessel's crew had complete control as it lashed and secured the containers down.

Steve Gordon  

Background:
Plaintiff, Derek Zastuary, ("Zastuary"), brought this action under the Jones Act against employer, Balfour Beatty Construction ("Beatty")  and Tri-State Steel  Construction after Zastuary sustained personal injuries on a barge on the Housatonic river. Zastuary also brought claims for unseaworthiness under maritime law.

Beatty was the general contractor in a State of Connecticut DOT multi-year project to demolish the existing bridge over the River.

Tri-State was hired by Beatty as a subcontractor. Zastuary was hired by Beatty to load and unload steel aboard one of the barges at the construction site on the River. The barge was a vessel used to transport individuals, equipment and materials from the shore and provide a platform in which to operate equipment from.

During his employment, Zastuary was injured while working on the barge by a piece of steel falling from a pile. At the time of his injury Zastuary had worked on the project for about 10 months, exclusively on the barge.

Defendants filed a motion for summary judgment claiming that Zastuary is not a seaman under the Jones Act nor was his work substantially connected to a vessel in navigation in nature and duration.

Issue:
Did the Court grant defendant's motion for summary judgment finding that Zastuary was not a seaman under the Jones Act or that his work did not have a substantial connection to the barge in time or duration?

Held:
Defendants argued that Zastuary's work on the barge was not in the nature of a seaman and he should not be able to recover under the Jones Act or maritime law.

Zastury countered that he spent all his time working on the barge for nearly a year and therefore his work was in the nature of a seaman.

The Court recognized that the test set forth by the Supreme Court required this Court to look at the nature and length of the job that Zastuary was on at the time he was injured. Based upon the facts presented, this Court found, there were still genuine issues of material fact whether Zastuary's work was in the nature of that of a seaman.

Accordingly this Court denied the defendants' motion for summary judgment,

Comment:
When examining the substantial connection requirement, courts will focus on the nature of the employee's connection to the vessel and concentrate on whether the employee's duties take him to sea.

This distinction is helpful in distinguishing land-based from sea-based employees.

Background:
Before this Court was a motion for summary judgment filed by the defendants in opposition to plaintiff's, Sidney Weiss Jr. ("Weiss"), under the Longshore Harbor Workers' Compensation Act ("LHWCA") or the Jones Act.

On the morning of his injury, Weiss was working on shore and was subsequently working on a series of barges tied together in the water next to the bridge creating a platform for a crane operated by Granite personnel. Weiss was injured when he was struck by some pieces of rebar that fell out of the crane.

Granite moved for summary judgment asserting that Weiss is not a Jones Act seaman and his claims do not fall within the LHWCA and also argue that they are entitled to assert the general contractors defense in regard to Weiss's state law tort claim.

Issue:
Did this Court grant defendants' motion for summary judgment holding that the plaintiff's Jones Act and/or LHWCA claims were barred?

Held:
This Court found that Weiss cannot satisfy either prong of the seaman test because (1) Weiss's work did not contribute to the function of a vessel or to the accomplishment of its mission because his work was unrelated to any vessel. Rather Weiss was on a barge working on a steel structure that had to be built in place on the bridge rather than the shore.

The second element was not met because, the Fifth Circuit has routinely held, as a matter of law, that neither a single construction barge nor several barges strapped together to form a floating construction platform constitute "vessels" under the Jones Act.  

As for the LHWCA claim, the Court examined whether the claim fell within the Court's maritime jurisdiction.

Granite argued that the injury-causing activity was not substantially related to traditional maritime activity. This Court found that the injury-causing activity in this case was not substantially related to traditional maritime activity. In fact, Weiss's claim did not raise issues of navigation or other more traditional maritime activities.

The activity involved construction services which are typically land-based activity.

Finally, Granite asserted the Mississippi's "exclusivity defense" which categorizes subcontractors as statutory employees of the general contractor for purposes of compensation laws and that so long as coverage is provided by the contractor or subcontractor, the workers' compensation is the injured workers' sole remedy.

Accordingly, if a contractor/subcontractor relationship exists the employee of the subcontractor covered by workers' compensation insurance is prohibited from making a common law claim for negligence or gross negligence against the contractor.

Weiss countered that the Mississippi Workers' Compensation Act does not apply when a worker is covered under the LHWCA and the issue cannot be resolved because there has been no finding regarding Weiss's LHWCA statues.

Accordingly, this Court dismissed Wiess's claim against the defendants and granted defendant's motion for summary judgment.

Comment:
One issue brought up in this case was whether the Court had maritime jurisdiction over  plaintiff's claim. Under the LHWCA it is required that the court have maritime jurisdiction.

The test to determine whether a "significant relationship" to traditional maritime activity exists, according to the Fifth Circuit, employs a (4) factor test. 1. The functions and roles of the parties 2. The types of vehicles and instrumentalities involved; 3. The causation and type of injury and 4. Traditional concepts of the role of admiralty law.

The Court here found that construction, although taking place in a navigable water, was typically that of land-based construction and therefore did not bear a significant relationship to traditional maritime activity.

Steve Gordon

Background:
Plaintiff, Lesley C. Domingue ("Domingue"), filed this action against Offshore Service Vessels LLC ("Offshore"), owner and operator of M/V Alex Chouset, and Intermoor Inc. with whom Offshore operated the vessel with under a Master Service Contract. Domingue filed the complaint against Offshore alleging negligence and unseaworthiness and against Intermoor for negligence under the Jones Act and maintenance and cure.

Domingue, an employee of Intermoor, was working as a rigger on the day of his injury. Domingue sustained injuries to his back, neck, and shoulders as he lifted a 250-pound, three inch link of chain on the back deck of the vessel.

Offshore filed a cross claim against Intermoor for defense and indemnity under the Master Vessel Access Agreement and for summary judgment against Domingue's claims of negligence and unseaworthiness.

Issue:
Did this Court grant Offshore's motion for summary judgment against Domingue's claims of negligence and unseaworthiness?

Held:
Domingue contended that Offshore breached its duty to provide him with a safe place to work specifically, arguing that Offshore failed to provide access to the tugger to break the link and to a crew member to assist him in separating the link.

Offshore countered that it is not responsible for Intermoor's specialized operations as an independent contractor and it did not supervise Domingue or provide tools to accomplish the operations.

This Court found that Offshore provided for work space on the deck of the vessel but did not provide tools and equipment. Furthermore, this Court found that Offshore had no duty to supervise Intermoor's crew and no request was made of Offshore personnel to render any assistance so therefore, Offshore fulfilled its duty to provide Domingue with a safe place to work. Moreover, Domingue failed to establish that there was a genuine issue for trial on its negligence claim because he has not shown that Offshore owed him a duty which was breached.

Offshore also contended that Domingue has failed to establish or present evidence establishing that the vessel was unseaworthy at the time of the accident. Offshore contended that Domingue has alleged only an isolated act which will not support a claim for unseaworthiness.

This Court found that Domingue did not present evidence of circumstances aboard the vessel that would render the vessel unseaworthy. The isolated act of lifting the kenter link alone resulting in injury does not establish unseaworthiness.

Accordingly this Court granted Offshore's motion for summary judgment because Domingue failed to present genuine issues of material fact that Offshore was negligence or that its vessel was unseaworthy.

Comment:
Unseaworthiness, as explained by this Court, is a condition. Accordingly, how the unseaworthiness (condition) came into being by negligence or otherwise is irrelevant to the owner's liability for personal injuries resulting from it.

Unseaworthiness might arise from defective gear, appurtenances in disrepair, or an unfit crew. An isolated act of negligence does not establish unseaworthiness.

Steve Gordon 

This Sunday morning , November 1, 2009, the United States Coast Guard had to Medvac two seaman as a result of  a helicopter crash that occurred in the Gulf of Mexico. Coast Guard Galvveston reported a medevac of two men following helicopter crash in Gulf of Mexico. There was a transmission to the USCG-Houston that two men were rescued from the GofM. There were two injuries reported.

Persons are usually unaware that the Jones Act does apply to helicopter crashes of this type. The Jones Act requires that safe ingree and safe egree be provided. Obviously, when a chopper goes down in the transporting of a cremember, then they have a valid Jones Act claim ans, more than likely a claim against the helicopter company, e.g., PHP.

If you or a family member believes that you have a valid Jones Act claim, contact the maritime lawyers of Gordon & Elias, L.L.P. at 800-773-6770. Our phones are answered 24/7/365.

Background:
This is the third of three appeals decided by this court regarding the action filed by Blaise DiBenedetto.

Blaise was injured while employed with Noble Drilling Company due to alleged negligence. Blaise brought this action against the executive officers of his former employers under state law. The trial court granted summary judgment in favor of the defendants because it found those executives to be immune from tort liability under the LHWCA.

This appeal, involved whether the executive officers of Blaise's former stevedoring employers are entitled to immunity from suit under the Longshore Harbor Wokers' Compensation Act ("LHWCA").

Issue:
Did the trial court err in granting defendants' motion for summary judgment denying Blaise's claim against his former employers' executives because it was barred under the LHWCA?

Held:
The executive officers looked to §933(i) of the LHWCA's exclusivity provision which states that the right to compensation or benefits where an employee is injured or killed by the negligence or wrong of anyone in the same employ. It further states that the provision shall not affect the liability of a person other than an officer or employee of the employer.

This Court found, however, that because his claim was not barred under the LHWCA's exclusivity provision previously, that it also did not bar his action against the executives.

More specifically, the Court found that a substantial exposure to asbestos leading to his mesothelioma occurred before the LHWCA was amended to include the exclusivity provision. As such, the cause of action was not barred because it arose prior to the bar under the LHWCA.

Accordingly, this Court reversed the trial court's granting of defendants' motion for summary judgment.

Comment:
For the same reasons under the 2^nd issue of appeal this Court found that Blaise's cause of action was not barred by the LHWCA.

The exclusivity provision under LHWCA provides the exclusive means of recovery for those who are in the same kind of employment as Blaise. There are exceptions, including one for intentional torts, however, an injury resulting from the negligence of his/her employer limits recovery to only under the LHWCA.

Steve Gordon

Background:
This is the second of three appeals decided by this Court involving plaintiff  Blaise DiBenedetto, ("Blaise") claim against Noble Drilling and other defendants under the Longshore Harbor Workers' Compensation Act ("LHWCA").

On Blaise's LHWCA appeal, this Court decided whether Blaise's claims against three of his former employers are barred by the LHWCA.

Blaise did not seek benefits under the LHWCA but rather chose to file a tort claim in state court. Defendants, CTS, Ports America Gulfport, Inc. and SSA Gulf each filed motions for summary judgment arguing that the LHWCA is Blaise's exclusive remedy thus barring Blaise from pursuing his tort claims against them.

The trial court granted summary judgment in favor of the defendants and dismissed Blaise's claims against them with prejudice.

Issue:
Is Blaise's state tort claim barred by the LHWCA?

Held:
This Court held that the trial court erred in holding that Blaise's claims were barred under the LHWCA.

Blaise's claim is a long-latency occupational disease case and as such, Blaise's claim accrued when exposures are significant and that such exposure resulted in the manifestation of damages.
Moreover, the tortious exposures are significant when asbestos dust has so damaged the body that the effects of its inhalation progresses independently of further exposure.

Blaise contended that the substantial contribution to his occupational exposure to asbestos occurred while he worked on the New Orleans riverfront beginning in 1974. Blaise's exposure occurred before the Louisiana Workers' Compensation Act was in effect. Therefore, Blaise's pre-1975 exposure is not subject to the exclusive remedy provision of this Act.

Furthermore, this Court found that the absence of coverage of diseases such as mesothelioma in the pre-1975 version of the LWCA means that the pre-1975 exposure is not subject to the exclusivity provision of that Act.

Accordingly this Court held that the trial court erred in granting defendant's motion for summary judgment.

Comment:
The Court refused to extend the LHWCA exclusivity provision to the plaintiff's claim because his exposure occurred before the Louisiana Worker's Compensation Act covered such claims.

The fact that the Louisiana Compensation Act, which is supplanted by the LHWCA, did not provide the remedy the plaintiff sought did not mandate the result that he can only seek recovery under the federal compensation scheme.

The plaintiff was entitled to pursue other remedies available to him under Louisiana law as it existed at the time of his first alleged significant tortious exposure to asbestos.

Background:
This involved three appeals of pre-trial judgment in a personal injury lawsuit brought by plaintiff, Blaise DiBenedetto ("Blaise"), against defendants claiming he contracted malignant mesothelioma as a result of exposure to asbestos while working for Noble Drilling Company ("Noble").

The trial court upheld plaintiff's right to dismiss with prejudice, South African Marine Corporation, and Industrial Development Corporation of South Africa and (2) Granted plaintiff's request to prohibit defendants from filing a third party demand against the dismissed defendants, South African, and Industrial Development.

The jumbled procedural history is as follows:

The two South African companies were named as defendants in Blaise's petition. On that same day, Blaise filed a petition to dismiss the two companies as defendants. Another defendant, CTS, filed a third-party demand naming the two companies as third party defendant. In response to CTS's motion, Blaise requested an order prohibiting any defendant from filing a third party claim against any defendant previously dismissed with prejudice.

The trial court granted Blaise's motion to dismiss all third party claims against the two companies.

CTS asserted three assignments of error. (1) The trial court erred when it dismissed the two companies with prejudice before their entity had made an appearance in the suit (2) the trial court erred when it issued an order prohibiting any party from bringing a third party demand against the two companies and (3) the trial court erred when it dismissed CTS's third party demand against the two South African companies.

Issue:
Did this Court find that the trial court erred in dismissing, with prejudice, the claim against the two South African companies?

Held:
CTS claimed that the dismissal of the two South African companies violated Louisiana Code of Civil Procedure.

La. C.C.P. article 1671 states in part, "A judgment dismissing an action without prejudice shall be rendered upon application of the plaintiff and upon his payment of all costs, if the application is made prior to any appearance of record by the defendant".

CTS contended that this mandated a judgment dismissing a defendant, at the plaintiff's request, prior to a general appearance must be without prejudice.

However, this Court found that 1671 applies to plaintiffs' motions to dismiss defendants without prejudice and this case involved dismissal with prejudice.

Accordingly, this Court affirmed the lower court's ruling that the two defendants' were properly dismissed with prejudice.

Comment:
The plaintiff here employed a common litigation strategy. That is, in order to speed up the case, they named two defendants as parties then subsequently moved to dismiss them with prejudice and for an order to bar them as parties to the case.

Otherwise, the defendants would have moved to include the defendants as third party defendants and lengthened the litigation process with motions and hearings regarding the matter.

Steve Gordon  

Background:
Employee, Earnest Moore twisted his right ankle while working as a deckhand for Donjon Marine Co. ("Donjon"), and sought to recover for injuries under a negligence cause of action seeking damages in excess of $75,000.

Donjon filed a Complaint for Exoneration from or Limitation of Liability with this Court. According to Donjon the vessel was valued at approximately §17,950 in 2007 but has devalued to 15k in 2009.

Earnest Moore moved to dismiss the exoneration from or limitation of liability arguing that a letter dated June 28, 2007 triggered the period of statute of limitation and thus Donjon should be dismissed with prejudice because it was filed after the permitted period.

Issue:
Did the Court grant or dismiss Donjon's exoneration from or limitation of liability?

Held:
Under 46 U.S.C. 30511(a) the owner of a vessel can bring a limitation of liability... within 6 months after claimant gives written notice of the claim.

The notice of the claim must inform the vessel owner, in writing, of an actual or potential claim which may exceed the value of the vessel. The start of the six month statutory period will run only upon its appearing that there is a reasonable possibility that the claims will exceed the value of the ship.

Donjon claims that the letter sent by the employee was insufficient as notice and therefore did not start the time limit. Donjon claims that it did not provide notice because Donjon could not know the nature or cause of injuries and that the employee claimants sought damages from the petitioners.

This Court found that, although the letter did not specify the amount of damages sought, that Donjon had the burden of investigating further whether the amount of the claim could exceed the value of the vessel.

Therefore, this Court held that Donjon failed to comply with the limitation period.

Comment:
Once the vessel owner receives notice of a pending claim and it appears, reasonably, that the value sought may exceed the worth of the vessel, than the vessel owner has six months to file a Limitation of Liability claim.

Steve Gordon  

Background:
Plaintiff, Victor Berry ("Berry"), a longshoreman brought an action under the Longshore Harbor Workers' Compensation Act ("LHWCA"), against vessel owner Mi-Das Line ("Mi-Das") and Doun Risen Co. ("Doun") alleging injuries suffered as a result of crewmember's negligence causing him to fall and injure his knee.

Specifically Berry alleged that as he was proceeding down the gangway he slipped and fell as a result of a crewmember's negligence. Di-Mas and parent company owned and operated the vessel.  Berry alleged that under general maritime law, that defendants are jointly responsible and vicariously liable for the negligent acts of the crewmember who caused his injuries.

The defendants moved this Court for an order requiring Berry to submit to an independent examination by a rehabilitation expert.

Issue:
Did this Court grant defendants motion requiring that Berry submit to an independent examination by a rehabilitation expert provided by defendants?

Held:
Berry contended that the exam is not "independent" because the defendants retained the vocational rehabilitation provided. Berry emphasized he has provided the defendants with plenty of discovery information including a medical examination by another doctor retained by the defendant and all the information should suffice.

Defendants, however, countered that Berry's own vocational expert is going to assess him at the same level and it would be unfair to deny their expert the same access. Moreover, the defendants argued that the rule does not employ the word "independent" as suggested by Berry.

This Court found that the purpose for Berry submitted to the vocational expert was to supply their expert with more information and that it is analytically connected to medical examinations conducted upon Berry. Moreover, Berry seeks to be compensated for his injuries so it is important that the defendants have ample information in which to determine or refute any amount they must pay.

This Court granted defendants motion.

Comment:
The Court ultimately required Berry to submit to an examination by the defendants' vocational expert. The purpose of the examination, as in many trials, is to equip the defendants' (or plaintiffs') expert with ample information in order to get an idea how much of the injury is attributable to event in question.

Steve Gordon

Rep. Gene Taylor, D-Miss., intends to introduce a bill to improve Coast Guard enforcement of the vessel construction requirements of the Jones Act, his staff said Friday afternoon.

During House debate of the 2010 Coast Guard appropriations bill, Taylor offered an amendment that would have set statutory limits on the amount of steel that could be used by a foreign shipyard to repair or rebuild a Jones Act-eligible ship. The House voted the amendment out of order.

According to Stephen Paranich, Taylor's chief of staff, members of the House Ways and Means staff objected to the amendment based on concerns raised by the U.S. Trade Representative. The USTR worried that the changes in the Jones Act would trigger a review of the law by the World Trade Organization.

The Jones Act, which has been the foundation of U.S. domestic maritime policy since the 1920s, requires ships operating between U.S. ports to be owned and manned by U.S. citizens, and built in the United States. The law was grandfathered when the United States adopted the General Agreement on Tariffs and Trade, the WTO's predecessor.

Paranich said that Taylor's amendment had been drafted with the assistance of the Coast Guard. Repairs or rebuilds of Jones Act ships in foreign shipyards are managed by regulation by the Coast Guard's National Vessel Documentation Center.

In June 2008, Taylor held hearings about the Coast Guard's regulatory practice after the agency gave the go-ahead to Matson Navigation and Seabulk to have substantial construction on their ships done at shipyards in China. He called the Coast Guard's approval of the projects "a screw-up.

Wayne Parsons

Malia Zimmerman of The Hawaii Reporter reports on 20 October 2009 that a ""Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly".Jones Act Lawsuit Will Test Control of Hawaii's Shipping Monopoly". Her story is about a bread maker in Hilo who claims that he had to pay $5.50 to ship a 50 lb. bag of flour to Hilo from the mainland and that the cost ruined his busines 

Wait a minute, Malia!

I thought that the Jones Act was a law that allowed injured crew on ocean going vessels to get money for medical bills and wage loss (maintenance and cure), so they can get back to work!?

Here is what happened to O'Keefe & Sons Bread Bakers:

Big Island small business owner Jim O'Keefe operated the O'Keefe & Sons Bread Bakers in Hilo, Hawaii for 13 years before shutting down his extensive operation in 2008. His popular bakery closure left 50 people out of work, retail customers searching for other restaurants to buy deli and baked goods from, and several area businesses, grocery stores and resorts scrambling for other local places to buy wholesale baked foods.

O'Keefe claims that the cost of shipping made it impossible for him to stay in business. Those costs included shipping costs for flour and other food ingredients.

"I would buy a 50 pound bag of flour for $6 or $7 in the mainland, and by the time it landed in Hilo, it cost me $12.50 a bag," O'Keefe says. 

I have to tell you folks, I am not shocked by that shipping cost. I am comparing the 2 oz. letter I just sent to Harriet (my sister) in Michigan for $0.42. A 50 lb bag should cost $168 if the U.S. Postal Service carries it to Hilo. O'Keefe pays $5.50. And he is filing a lawsuit? Get in line Mr. O'Keefe. If regular people paid the equivalent rate of $5.50 for 50 pounds in shipping to Hawaii, a letter would cost 2 Cents in postage. That's right, a letter would cost $0.02, not $0.42 as it is today. 

O'Keefe blames his business failure on the fact that American workers get paid a living wage. I am very interested in what Hawaii working folks - who bought Mr O'Keefe's bread, think about his attack on Hawaii and U.S. workers. He says that the cost of goods are ridiculously high in Hawaii because of the Jones Act. 

The Jones Act is not about bread or bakers. It protects American workers. The Jones Act is a federal law that says all products shipped between American ports must be shipped in American made vessels by a crew that is 75 percent American. The law supports the high quality American work force. O'Keefe wants to use slave labor from foreign countries so he can make more money in his Hilo business. My guess is that American sailors who he wants to put out of work won't be buying his bread. O'Keefe wants to allow competition from what he calls "world shippers" and he complains that using American workers unfairly raises the cost of doing business for his bread company. O'Keefe says that what is running him out of business is being forced to use American workers. 

Another claim he is making is that the cost that is running him out of business is "six figures over the life of his business". Let's think about that. "Six figures" over the life of his business is from $100,000 to $999,999. Let's make it $100,000. My thought is that if it was closer to $999,999, O'Keefe would have used "7 figures". O'Keefe does not state what "the life of his business" is in years. Let's use 10. I'm guessing but O'Keefe or his attorneys can Comment, and I will use their numbers.

$100,000 over 10 years is $10,000 per year. I wonder how much O'Keefe thinks a 50 pound bag of flour should cost to ship to Hawaii? I guess he wants to use a ship that has slave labor, but even that ship charges for shipping. O'Keefe says that the $5.50 that he pays to ship a 50 pound bag of flour should be only one-third of that amount: $1.83. So that means the $3.67 per 50 pound bag of flour cost him his business. And he is filing a lawsuit.

I wonder what his position is about lawsuit abuse and tort reform? Maybe he or his attorneys will write in and Comment.

O'Keefe and his attorney John Carroll are asking Hawaii's Chief U.S. District Judge, David Ezra, to rule, on December 7, 2009, that the Jones Act is "excessively expensive for Hawaii's people and are in violation of the Fifth and Fourteenth Amendments as well as the Commerce Clause of the U.S. Constitution." In essence they claim that using American workers on ships between the west coast and Hawaii is un-American and violates the Constitution of the United States. The Hawaii Reporter summarizes their position:

One of the purposes of enacting the Jones Act, Carroll says, was to ensure the United States of America would be well equipped with a maritime fleet that could compete in a worldwide economy, but it has had the opposite effect: "Unfortunately, it created unconstitutional restrictions on commerce between the state of Hawaii and worldwide shippers as well as on interstate commerce."

Because Hawaii is separated from the continental United States by 2,300 miles of ocean, he estimates "Hawaii is dependent on ocean shipping for at least 90 percent of every commodity used and consumed in the state." That had a compound effect on agriculture and the ranching industry. "The expense of agricultural production became prohibitive, not only because of the inbound shipping cost of fertilizers, herbicides, and farm implements, but also due to the outbound shipping costs for our locally grown fruits, livestock and ornamental plants. Hawaii cattle ranchers are faced with an intolerable situation. They often have to transport their cattle, from Kawaihae to Vancouver B.C. on a Canadian owned Corral Lines to remain profitable. The cattle must then be trucked (often for 500 miles) into the U.S. to be fattened and sold. To go direct, some are flown on Boeing 747 aircraft," Carroll says.

Do we want to support American workers or join the rest of the world and use slave labor?

Former Congressman Ed Case, D-Hawaii (2002-2007) is running for Congress with a platform that agrees with O'Keefe that the law should be changed to eliminate American crew and American law on ships coming to Hawaii. He wants to be elected by saving O'Keefe $3.67 per 50 pound bag of flour. I wonder id Case looked at O'Keefe's financial statements to see if they confirm that the shipping costs did him in and ruined his business. Are all of the bakers in Hilo gone? Was O'Keefe a good businessman. I do not know but I do ask the question.

Case is not shy to attack American workers. According to the Hawaii Reporter story:

In a September 2003 Congressional speech seeking an exemption for Hawaii and other non-contiguous U.S. locations from the Jones Act, Case asked, "Is it fair that our federal government creates a monopoly over any key aspect of life in Hawaii? Is it fair that our federal government provides one company, effectively, with the ability to control, to dominate, the lifeline that we have between here and the Mainland for all of our goods? Because that's exactly what the Jones Act does." 

Case noted that 97 percent to 98 percent of our goods come to Hawaii from the Mainland, all come by shipping. "When somebody gets a hold of our lifeline, that's a dangerous sign for us. And we're paying for it in spades, thousands of dollars for each and every citizen of this country and this state, far more money for businesses that employ people and have to deal with those goods and services. That's not fair, and that's not the way it should be. We have laws in this country against the creation of monopolies, we believe monopolies are bad. Yet in this case, a federal law creates a monopoly."

While Case supports a Jones Act exemption for Hawaii, his primary opponent, Senate President Colleen Hanabusa, supports the Jones Act. Let's be clear here about the difference between Hanabusa and Case: she supports a crew of at least 75% Americans on ships coming to Hawaii with bread flour (and everything else). Case wants to allow boats full of slave labor so that O'Keefe and anyone else can lower their prices.

Background:
Plaintiff, Jonathan Janes ("Janes") brought this action against owner and operator of a freighter M/V Maumee Grand River Navigation Company ("Grand River"). Janes suffered personal injuries when he was assisting in moving a cable on the deck of the freighter.

Janes was preparing Grand River's freighter for unloading when he was injured. Janes was asked to assist a few other crewmembers in changing the cables of a crane, used to unload the ship's cargo. While the crew pulled the unloading cable, Janes lost his balance and slipped and fell on the deck landing and injuring his right shoulder.

Janes brought this action, under the Jones Act, unseaworthiness, and maintenance and cure. Janes sought summary judgment on the issue of liability that Grand River was negligent per se in the accident of Janes and that such negligence caused Janes' injury.

Issue: Did the Court rule in favor of Janes' motion for summary judgment holding Grand River liable per se for Janes' injuries sustained while working aboard a freighter owned by Grand River?

Held:
Janes argued that in Grand River requiring him to assist in the unloading of the vessel, that Grand River violated certain manning requirements under 46 U.S.C. §8104(e) and that because it is interpreted as a "safety statute" the violation should be deemed to constitute negligence per se under relevant precedent.

Moreover, Janes contended that courts have found where Jones Act employer violates any safety statute, the employer is liable without showing of negligence because the violation constitutes negligence per se.

§8104(e) provides that a "seaman may not be" (1) engaged to work alternatively in the deck and engine department or required to work in the engine department if hired for deck department duty and vice versa.  Janes argued that the courts have concluded the purpose of this statute is to promote safety at sea for the benefit of the ship's crew.

Janes argued this rule applies because the incident occurred when he was employed in the engine department and ordered to work on the deck. Moreover, Janes argued that he was involved in a procedure he was not ordinarily involved in because the vessel was undermanned and therefore, claimed unseaworthiness.

Grand River countered that (1) Janes was not a member of the engine department but of the "maintenance" department. Also, Janes (2) failed to show that the statutory violation caused the injury and that a showing (3) of unseaworthiness required more than merely showing a Jones Act claim and that Janes' injury was a proximately caused by the unseaworthiness.

Finally, Grand River countered that even if the statute applied, it was not in violation because it only forbids employers from requiring members of the engine department to work on deck and does not forbid seamen from working on deck and vice versa.

This Court first, found that if Grand River violated §8104, and that such manning caused the injury then it would find Grand River liable as a matter of law.  

The Court found that employing Janes to perform limited deck and engine duties was not an engagement "to work alternatively in the deck and engine departments" and therefore did not violate §8104(e)(1)(A). The Court, using tools of statutory construction gave effect to Grand River's interpretation of the Act because it gave effect to all the words of the subsection.

Also, the Court found that Grand River did not violate the statute because employment of maintenance personnel to perform duties in either the engine or deck deparment is not barred by the Coast Guard's reasonable interpretation of the statute.

Accordingly, this Court denied Janes's motion for summary judgment because he failed to show that Grand River violated the safety statute.

Comment:
Under the Jones Act if a plaintiff shows that a defendant employer (1) violates a safety statute intended to protect the well being of employees and (2) such violation caused plaintiff's injury, then the employer will be negligent per se and liable under the Jones Act.

Steve Gordon

New Hawaii Lawsuit - Constitutional Challenge to Jones Act

Several Hawaii residents and businesses have brought suit against the federal government challenging the constitutionality of the "Jones Act."  The complaint can be downloaded here.

The suit notes that because the Jones Act requires cargo to be transported on U.S. flagged ships between U.S. ports, Hawaii residents pay more for their goods.  It purports to be class action on behalf of all persons impacted by the Jones Act's application to Hawaii maritime trade.

The complaint alleges claims under Art. I, Section 8 of the Constitution; 42 U.S.C. 1983 and Federal Rule of Civil Procedure 57.  There may be some jurisdictional problems with these claims, so it will be interesting to see if the plaintiffs can survive the government's inevitable motion to dismiss.

Background:
Defendant, Cashman Equipment Corporation ("Cashman"), appealed a judgment in favor of plaintiff, Richard Craven ("Craven"), in a maritime negligence case.

Cashman, owner of a dilapidated dredge the Conical. Cashman removed a crane from the deck of the Conical creating a three foot by three foot hole. The barge was moved to another location and leased by Offshore Specialty Fabricators ("OSF") who was instructed to place the rented barge in a position that required securing three barges and shifting the group along the river, to be done at night.

Craven, an OSF employee, boarded the barge to prepare it for shifting. Craven walked along the barge, without a functioning headlight on his safety helmet to assist another employee and fell through the hole left after removal of the barge's crane.

Craven sued both Cashman for maritime negligence and OSF under the Jones Act.  OSF and Cravel settled prior to trial and OSF filed a cross-claim against Cashman for reimbursement. The district court found Cashman 85% at fault, OSF 10% at fault, and Craven 5% at fault. The lower court denied Cashman's petition for limited liability because the barge was a "dead vessel" and found because Cashman had knowledge and privity of the hole.

Cashman appealed the distribution of fault and the limitation of liability rulings. OSF appealed the district court's failure to award prejudgment interest on OSF's recovery of past maintenance and cure expenses.

Issue:
Were Cashman and OSF successful in appealing the district court's judgment ruling in favor of Craven?

Held:
Cashman argued that the factual findings that they had knowledge or should have seen the hole in the barge. The District Court found that Cashman's operations manager at the time, and an equipment manager, saw or should have seen the whole. This Court did not find that the district court erred in finding that Cashman had knowledge of the dangerous condition.

As for Cashman's appeal on the issue of whether Limitation should be allowed because it was a "dead ship" this Court held that because sufficient knowledge and privity was found on Cashman's part, than this issue nee not to be determined.

Accordingly, this Court affirmed the district court's rulings.

Comment:
A vessel owner will attempt to limit their liability if an accident occurs on their ship as a result of a negligent condition. The owner of a vessel cannot limit his liability if he had knowledge and privity of the condition that caused the harm.

Here, the knowledge was imputed to Cashman because their supervisors, were "agents" to Cashman and therefore Cashman had knowledge or should have had knowledge of the three foot by three foot hole in the deck of the barge.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Plaintiff, Tim T. Ngyuen ("Ngyuen"), appealed trial court judgment finding Sundown Energy L.P. not liable for Ngyuen's injuries because it did not operate or control the site in site in question, and that Eland Energy was the borrowing employer of Nguyen and as a result immune from tort liability.

Mr. Ngyuen brought an action under the Longshore Harbor Worker's Compensation Act ("LHWCA") as a result of injuries sustained while performing his duties as a welder on property owned by Sundown Energy L.P.("Sundown").

Ngyuen filed an action pursuant to the LHWCA, because defendant, Weston, did not have coverage for claims filed under the LHWCA, Ngyuen filed a tort action naming Weston, Sundown Eland, and Quality Pipeline and Construction Inc. under 33 U.S.C. §§904 which allows a direct action against an employer when there is no coverage and compensation is not paid.

Defendants filed a motion for summary judgment at trial court, which were granted, and Ngyuen appealed.

Issue:
Did the lower court err in granting defendants' motion for summary judgment?

Held:
The first issue decided on appeal is whether borrowed servant status is applicable under both the LWCA and LHWCA. Ngyuen argued that summary judgment is premature because it has yet to be determined if he can recover workers' compensation pursuant to the LHWCA.

Eland and Sundown argued that it didn't matter which compensation Act applied because the issues of liability are the same and use the same criteria regardless. Accordingly whether Ngyuen's claims arise under workers' compensation or the LHWCA is not a material fact precluding summary judgment.

This Court considered whether Ngyuen was a borrowed employee by Eland and thus, immune from tort liability.

The deposition of Weston asserted that he hired Nguye to perform welding services but an Eland employee directly supervised and had authority to issue instruction to Weston employees. Also, Nguyen performed work on Eland's facility. Moreover, Eland agreed to operate and maintain the premises Nguyen performed the work. Nguyen also testified that Eland employees gave the bulk of the supervision and direction at the site, which all support a finding of borrowed employee.

Accordingly, this Court found no genuine issue of material fact whether Nguyen was a borrowed employee and thus, affirmed the ruling of the district Court.

Comment:
To determine whether an employee is a "borrowed servant" the courts examine several factors. The factors include (1) Who had control over the employee and the work he was performing beyond mere suggestion of details or cooperation (2) Whose work was being performed? (3) Was there an agreement between the original and borrowing employer (4) Did the employee acquiesce in the new work situation? (5) Did the original employer terminate his relationship with the employee? (6) Who furnished the tools and place for performance? (7) Was the new employment over a considerable length of time? (8) Who had the right to discharge the employee? And (9) Who had the obligation to pay the employee?

These factors, all balanced together determine whether en employee is "borrowed" for purposes of employer liability.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Plaintiff, David Anthony Mier ("Mier") alleged that while a crew member of defendant's, Wood Towing LLC ("Wood Towing") vessel he slipped and fell in a slippery substance on a barge owned by ARTCO. Mier alleged unseaworthiness, negligence, and that he is entitled to maintenance and cure.

Wood Towing has moved for partial summary judgment dismissing the negligence and unseaworthiness claim while ARTCO moved for summary judgment to dismiss Mier's claims under general maritime law.

Issue:
Did the Court grant the defendants' motions for summary judgment?

Held:
Wood Towing claimed that Mier's testimony at his deposition established that his slip and fall were caused solely by Mier's own negligence and inattentiveness to an open and obvious condition. Wood Towing stated that Mier had been on the barge earlier in the day with plenty of opportunity to observe the slippery area and that because Mier has testified he is an experienced deckhand he should have noticed it.

Mier's co-worker testified that the puddle did not appear to be slippery and Mier further contended that Wood Towing had a duty to inspect the barge prior to plaintiff's fall.

The Court dismissed Mier's claims of unseaworthiness but denied Wood Towing's motion for summary judgment against Mier's Jones Act claims.

Second, ARTCO denied owing a duty to Mier because it was unaware of any hazardous condition on the barge at the time of plaintiff's accident and because it had no way of knowing that such existed.
However, Mier contended that ARTCO's inspection report, from 15 days earlier, contained a blank section relative to the barge's deck and whether it was clean.

Accordingly, this Court denied ARTCO's motion for summary judgment because it was unable to determine, based on the facts presented, whether ARTCO had a duty to Mier.

Comment:
Under some circumstances, a Jones Act employer's duty toward his employee may include a "duty to inspect the third party's property for hazards and to take precautions to protect the employee from possible defects".

The plaintiff here was able to introduce evidence creating genuine issues of material fact whether the defendant had a duty to inspect and make sure the barge, owned by a third party, was safe to work on.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Plaintiff, Dusty Hutchison, ("Hutchison") appealed a judgment by a trial court dismissing his Jones Act claim against defendant Seariver Maritime ("Seariver") as abandoned.

In February 2001, Hutchison filed a seaman's petition for damages alleging he was injured on April 2, 2000 while employed as a Jones Act seaman aboard a vessel owned and operated by defendant.

Throughout 2001 and 2002, the parties conducted discovery, including depositions. Additionally, various motions related to discovery were filed in the record of these proceedings.

On March 18, 2005, a scheduling order form was filed into the record and provided that the discovery cutoff date would be September 1, 2005, and the pretrial conference would be scheduled for October 14, 2005.

On August 29, 2005 New Orleans was devastated by Hurrican Katrina forcing counsel for both parties to be displaced. The parties filed a joint motion to extend the deadline. No other pleadings or filings had taken place until Seariver filed a motion to dismiss Hutchison's action based on abandonment.

Hutchison opposed the motion arguing that both parties had begun selecting dates to bring the matter to trial and Seariver had offered to file a scheduling order with the court in September, 2007.

The trial court found that there were no steps in the prosecution of the case in excess of three years. Moreover all Hutchison relied upon were certain correspondences between opposing counsel that were not formal discovery. Accordingly the lower court found that those correspondences were not sufficient to interrupt the abandonment period.

Hutchison appealed the lower court's ruling.

Issue:
Did the trial court erred in granting Seariver's motion to dismiss based upon abandonment?

Held:
Hutchison asserted that the trial court erred in granting Seariver's motion to dismiss and that the applicable time period governing abandonment of cases necessarily delayed by Hurricanes Katrina and Rita is five years instead of three years.

This Court found, after reviewing the correspondence between the two parties, that there had been an exception to the abandonment rule applies to this case. By virtue of a letter dated September 6, 2007 by Seariver, which requested dates from Hutchison's attorney so that a scheduling order could be filed with the trial court. Moreover, this Court found the act of requesting a scheduling order is an act inherently inconsistent with intent to treat a case as abandoned.

S