In a new unpublished decision, the Fifth Circuit affirmed a district court’s grant of summary judgment against an injured worker. The plaintiff was injured while “attempting to inspect a lower compartment on [a] ship.” He fell down a ladder after climbing under a locked chain. Following his injury, the injured plaintiff filed suit under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act, general maritime law, and state law. The district court held that it lacked jurisdiction because the vessel on which the plaintiff was injured had never been completed. Further, the defendant enjoyed government contractor immunity such that it was shielded from liability. Finally, the district court determined that the mechanism of the plaintiff’s injury was an open and obvious condition. The Fifth Circuit agreed, stating: The ship had not yet earned vessel status. Although the ship had completed sea trials, it “was still being outfitted and inspectedRead more
Maritime Law Did Not Apply to Guest’s Drunk Driving Accident
The Supreme Court of Texas recently determined that admiralty jurisdiction did not apply to a horrific drunk driving crash simply because the driver responsible for the crash had been drinking on a small, chartered fishing boat. The facts were not disputed. A technology company hosted a business retreat at a lodge in Aransas Pass near the Gulf of Mexico. On that retreat, one of the company’s clients drank excessively on a fishing boat. The boat returned to the lodge, at which time the client left to drive home. One-and-a-half hours later, the “significantly intoxicated” client crossed into oncoming traffic and struck a motorcycle. Both motorcycle riders lost their left legs. They sued the technology company, arguing that it negligently allowed their client to drink excessively. Texas does not recognize such social host liability, so the plaintiffs asserted that federal maritime law applied to the case because the client became intoxicatedRead more
Around the Longshore and Maritime Blogosphere
Happy Friday, everyone. Here are some great Longshore and maritime related posts that I recommend reading. The LexisNexis Workers’ Compensation Law Community published two interesting articles. First up is Karen Koenig’s Update from the Benefits Review Board (May 2014). In addition to important statistics about the Board’s caseload, the article addresses the Board’s recent interpretation of Section 2(3)(F) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”). Congress amended Section 2(3)(F) in 2009. It now excludes from coverage “individuals employed to build any recreational vessel under sixty-five feet in length, or individuals employed to repair any recreational vessels, or to dismantle any part of a recreational vessel in connection with the repair of such vessel . . . if [the individual is] subject to coverage under a state workers’ compensation law.” Next up is The Loyola Current, which is published by the Loyola New Orleans Maritime Law Journal. Recent postsRead more
Second Circuit Addresses the Economic Loss Rule
In Atlantic Petroleum, the Second Circuit determined that economic losses are not recoverable for an unintentional maritime tort in the absence of a physical injury. The court also refused to create a fact-specific exception for foreseeable losses caused by a government entity. As summed up by the court: The issue on this appeal is whether, under maritime law, an owner of a vessel may be awarded damages for economic loss due to negligence in the absence of physical damage to its property. For many years a number of courts have derived from the Supreme Court’s opinion in Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927), a “rule” prohibiting such damages. Plaintiff–Appellant American Petroleum and Transport, Inc. (“American”) appeals from the October 11, 2012, judgment of the United States District Court for the Southern District of New York (Paul A. Engelmayer,Read more
New Maritime Articles on SSRN
In case you are in the mood for some light reading, there are a few new articles at the Social Science Research Network that are worth checking out. First, check out If It Looks like a Vessel: The Supreme Court’s ‘Reasonable Oberserver’ Test for Vessel Status by David R. Maass: What is a vessel? In maritime law, important rights and duties turn on whether something is a vessel. In Stewart v. Dutra Construction Co. (2005), the United States Supreme Court held that a vessel need only be “practically capable” of maritime transport. But Stewart left open an important question: Should courts consider the owner’s intended use for the structure in determining whether it counts as a vessel under the statute? Earlier this Term, in Lozman v. City of Riviera Beach (2013), the Supreme Court answered that question and held that courts should consider only objective facts about the structure’s designRead more
Second Circuit Gives Seamen Overtime Pay as a Component of Unearned Wages
A class of seafarers who were discharged from service on Maersk ships due to illness or injury sought overtime pay that they would have earned from the time of their discharge until the end of their respective voyages. After an adverse judgment from the Southern District of New York, the defendant appealed to the Second Circuit. The issue on appeal was “whether unearned wages recoverable by ill or disabled seafarers under general maritime law include overtime pay that they would have earned had they completed their voyages.” The Second Circuit concluded that these seamen were entitled to overtime pay as a component of unearned wages. It reasoned: “Under general maritime law, seamen who have become ill or injured while in a ship’s service have the right to receive maintenance and cure from the owner of the vessel. Ammar v. United States, 342 F.3d 133, 142 (2d Cir.2003). In addition, aRead more
Supreme Court Refuses to Review Minton. Punitive Damages Are Not Available Under the LHWCA.
Yesterday the Supreme Court of the United States denied certiorari in Minton v. Exxon Mobil Corp. That means that the Court will not review the Virginia Supreme Court’s determination that punitive damages are unavailable in Section 905(b) actions. Specifically, the Virginia Supreme Court stated that because “punitive damages are not a remedy made available within the terms of the LHWCA, and the language plainly restricts the damages to those remedies explicitly made available, they are extinguished as a category of recovery in LHWCA claims.” Click here for the Supreme Court’s Order List where it denied certiorari. Click here for Virginia’s Exxon Mobil Corp. v. Minton, — S.E.2s —-, 2013 WL 119661 (Va. 2013). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore and Defense Base Act Blog.)
Fifth Circuit: No Right to Restitution for Maintenance and Cure Payments
When Plaintiff was hired, he completed a pre-employment medical questionnaire. Plaintiff failed to disclose his serious preexisting back problems, affirmatively answering “no” to several inquiries about those problems. After working for Employer for a few months, Plaintiff allegedly injured his back. Employer paid maintenance and cure for five years. After Plaintiff filed suit for additional maintenance and cure, Employer learned through discovery about Plaintiff’s extensive back problems. Employer won a partial summary judgment on a McCorpen defense, which extinguished liability for maintenance and cure because Plaintiff’s failure to disclose the prior back problems. Then, Employer filed a counterclaim against Plaintiff to recover the maintenance and cure payments already made. The district court issued an opinion awarding Employer restitution for the sums previously paid. The Fifth Circuit, in a 2-1 opinion, determined that the district court erred by awarding restitution, no matter the egregious facts concerning Plaintiff’s maintenance and cure claim. In short, restitution is not availableRead more
Eleventh Circuit Defines “Navigable Waters”
The Eleventh Circuit answered a question “almost as old as the doctrine of admiralty jurisdiction itself.” The question: what are navigable waters? According to the Eleventh Circuit, “a waterway is navigable for admiralty-jurisdiction purposes if, in its present state, it is capable of supporting commercial activity.” The Eleventh Circuit begrudgingly stated that it was bound by prior precedent, Richardson v. Foremost Ins. Co., 641 F.2d 314 (5th Cir. 1981). In Richardson, the Fifth Circuit addressed whether a tort claim based on a collision between two pleasure boats on a waterway that was “seldom, if ever, used for commercial activity” fell within the federal courts’ admiralty jurisdiction. 641 F.2d at 315–16. The court noted that for admiralty jurisdiction to exist in a tort case, two requirements must be met: (1) there must be a significant relationship between the alleged wrong and traditional maritime activity (the nexus requirement) and (2) the tortRead more
The Fifth Circuit Explains the Application of Maritime Law to Jack-Up Rigs and Removal of OCSLA Claims
After watching his friend and co-worker die as a result of an accident on a jack-up rig attached to the Outer Continental Shelf (“OCS”), Plaintiff filed suit in a Texas state court. Plaintiff conceded that he did not sustain a physical injury, but he alleged to have suffered severe emotional distress from witnessing his friend’s death. Further, the emotional distress caused physical problems. In response to Plaintiff’s state court lawsuit, Defendants removed the action to the United States District Court for the Southern District of Texas under the federal question jurisdiction of the Outer Continental Shelf Lands Act (“OCSLA”). The federal district court then determined that Plaintiff could not recover under either Texas law or maritime law and granted Defendants’ motion for summary judgment. Plaintiff appealed the district court’s decision and the Fifth Circuit affirmed. The “difficult question” the court had to answer was “whether federal, state, or maritime law provides theRead more
