Yesterday the Supreme Court of the United States (“SCOTUS”) issued a summary disposition in Lemelle v. St. Charles Gaming Co., Inc. We previously discussed Lemelle here. Briefly, in Lemelle, an intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino. The plaintiff filed suit seeking damages under general maritime law, which he argued preempted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. The dispute became one of vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the casino riverboat was not a vessel. Interestingly, Louisiana’s Third Circuit cited to a prior federal Fifth Circuit opinion that discussed how the casino was only “theoretically” capable of maritime transport. De La Rosa v. St. Charles Gaming Co., 474 F.3d 185, 187 (5th Cir. 2003). But Louisiana’s Third Circuit did not stop there. It also determined that the CROWN was “practically” incapableRead more
A Navy Ship is Not a “Product” for Strict Products Liability Law
The Eastern District of Pennsylvania recently addressed arguments testing the intersection between maritime and product liability law, all of which stemmed from a plaintiff’s exposure to asbestos on various Navy ships during the 1960s and 1970s. At that time, the plaintiff was employed as a welder by the Department of Defense. The issues of first impression before the court were (i) whether “maritime law recognize[s] a sophisticated user and/or sophisticated purchaser defense and, if so, to what causes of action does the defense(s) apply”; and (ii) whether a Navy ship is a “product” within strict products liability law. Section 388 of the Restatement (Second) of Torts provides guidelines for the “sophisticated user” defense: One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm causedRead more
Louisiana Third Circuit Follows Suit, Holds Casino Boat Not a Vessel
An intoxicated patron fell down the stairs of the M/V CROWN CASINO, a riverboat casino owned by St. Charles Gaming Company, Inc. the plaintiff filed suit seeking damages under general maritime law which, he argued, pre-empted a Louisiana statute limiting liability for loss connected with the service of alcoholic beverages. La. Rev. Stat. Ann. § 9:2800.1 (2012). The parties then filed cross motions as to whether the casino boat had vessel status. The Court of Appeal of Louisiana, Third Circuit, determined that the M/V CROWN CASINO was not a vessel for maritime purposes. A “vessel” is “every description of watercraft or artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. The Supreme Court, in Stewart v. Dutra Constr. Co., 125 S.Ct. 1118, 1127 (2005), determined that “a watercraft is not ‘capable of being used’ for maritime transport in any meaningful senseRead more
Nigerian Law, Not U.S. Law, Applied to Vessels Alliding in Nigeria
The Turkish-flagged vessel of Company #1 allided with the Greek-flagged vessel of Company #2 in the Port of Lagos, Nigeria. Company #1 is a Turkish company, and Company #2 is a Greek company. Following the allision, the Greek-flagged vessel required temporary repairs in Nigeria and then extensive repairs in Turkey. Because the repairs caused loss of use damages, Company #2 sued Company #1 in the Eastern District of Louisiana after Company #2 arrested Company #1’s vessel during an unrelated call to a U.S. port. An interlocutory appeal was granted by the Fifth Circuit to consider which country’s law–U.S. or Nigeria–applied to the controversy. Importantly, Nigerian law does not recognize loss of use claims. The Supreme Court previously articulated eight factors a court should consider when determining whether U.S. or foreign law applies: (1) the place of the wrongful act; (2) the law of the flag; (3) the allegiance of domicile of the injured party;Read more
W.D. Wash: Loss of Consortium Available in Unseaworthiness Claim
In an opinion that is interpretive of the landmark decision in Atlantic Sounding Co., Inc. v. Townsend, 129 S.Ct. 2561 (2009), U.S. District Judge Pechman denied defendant’s 12(b)(6) motion to dismiss by holding that the spouse of an injured seaman may seek damages for loss of consortium under general maritime law. Loss of society damages were deemed to be unavailable to survivors of seamen who brought claims under the Jones Act or under general maritime law under Miles v. Apex Marine Corp., 498 U.S. 19 (1990). The Miles Court based its holding on the U.S. Supreme Court decision in Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59 (1913), which held that loss of society damages were not available under the Federal Employers Liability Act (“FELA”). The Miles Court reasoned that the Jones Act, which incorporated the FELA, required the application of the Vreeland decision as judicial “gloss.” Id. atRead more
LA Third Circuit: Moored Casino Boat Is Not a Vessel
In a split decision, the Louisiana Court of Appeal, Third Circuit, determined that a floating casino permanently moored to to a dock is not a vessel. The M/V Crown was originally placed into service as a functioning gambling boat that would cruise the Calcasieu River in Lake Charles. Thereafter, the Louisiana legislature amended gambling laws to prohibit gambling boats from conducting cruises or excursions. In accordance with law, the M/V Crown was docked, and it stopped conducting cruises. Since then, the vessel has been held to the dock by four steel cables. Utilities, such as electricity and phone service, were attached to the M/V Crown from land-based sources. Further, the M/V Crown has not been licensed by the Coast Guard since the Louisiana legislature’s gambling law amendments took effect. Still, though, the M/V Crown has all of the equipment necessary for maritime navigation, making navigation a theoretical possibility. The question of whether aRead more
Maintenance and Cure Is Not Contingent on IME Attendance
Although it may be limited to the facts of the case, a Washington state court determined that an employer could not condition a seaman’s receipt of maintenance and cure upon her attendance at an independent medical examination (“IME”). In Mai v. American Seafoods Company, LLC, the seaman was injured when a 40-pound box struck her knee. After multiple arthroscopic surgeries, the seaman’s treatment consisted mainly of going to a gym and taking pain medications. The employer “abruptly ended” maintenance and cure payments. One month later, the seaman’s treating physician determined that she was a candidate for a total knee replacement (“TKR”). Five days before the scheduled surgery, the employer faxed notice that it would not pay for the surgery absent an IME. Further, maintenance and cure would not be paid because of the seaman’s refusal to participate in the IME. Maintenance (a daily subsistence allowance) and cure (medical treatment) isRead more
A McCorpen Defense Has Only Three Elements
In an unpublished decision, the Fifth Circuit affirmed a district court’s denial of maintenance and cure benefits, and punitive damages, against a claimant’s former employer. The facts demonstrated that the claimant underwent a hip replacement surgery prior to his employment, and that he was on prescription pain medicines when he under went a pre-employment physical. The claimant never disclosed this injury to his employer. Maintenance and cure requires a vessel owner to provide compensation and medical care to an injured seaman, “even if the seaman’s injury stems from a pre-existing illness or condition, unless, the seaman knowingly concealed this condition from his employer when he was hired.” If there was concealment, an employer may lodge a McCorpen defense. McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547, 548 (5th Cir. 1968). Such a defense applies “when an employer subjects a seaman to a medical examination as part of the hiring processRead more
Vessel Has Tort Immunity for Fishing Observer’s Injury
Pursuant to the Marine Mammal Protection Act, the Secretary of Commerce may require a vessel to allow onboard a government observer to monitor the vessel’s compliance with fishing regulations. 16 U.S.C. § 1361 et seq. These observers are federal employees, and not the employees of the vessel. Generally, vessels enjoy tort immunity for injuries that may happen to these observers. This immunity does not apply, however, if the observer is injured while “engaged by the owner, master, or individual in charge of a vessel to perform any duties in service to the vessel.” See 16 U.S.C. § 1383a(e)(7)(B). Here, the plaintiff was working as a fisheries observer aboard the F/V Lady Karen when she was injured by a snapped cable. At the time of her injury, the plaintiff left her post momentarily, to take a bathroom break. She argued that because her injury occurred during her bathroom break, she wasRead more
Louisiana Loss of Consortium Claim for OCSLA Injury
On February 27, 2009, while working on an offshore platform, the plaintiff-employee was injured when a crane allegedly fell on him. The parties did not dispute that the Outer Continental Shelf Lands Act (“OCSLA”) applied to the claim. Instead, the dispute concerned whether the plaintiff-wife could assert a loss of consortium claim under Louisiana law. The defendant filed a motion for summary judgment arguing that the plaintiff-wife’s claim must be dismissed. Ultimately, the Eastern District of Louisiana concluded that “workers injured on fixed man-made structures situated on the Outer Continental Shelf and their families may utilize the state tort law of the adjacent state,” and that Louisiana tort law provides a cause of action for loss of consortium claims. The defendant’s motion was denied. Henderson v. McMoran Oil, No. 09-5626, slip op. (E.D. La. Oct. 18, 2010). (Note: I originally published this post on Navigable Waters: A Maritime, Longshore andRead more
