An appellate court in the State of Washington just answered an interesting question about an intersection between the Longshore Act and the Jones Act. The issue was “whether an injured maritime worker who accepts voluntary benefits and settles his claim under the Longshore and Harbor Workers’ Compensation Act (LHWCA), when there is no adjudication of his status as a non-seaman under the LHWCA, is barred from pursuing claims against the vessel owner for personal injuries under the Jones Act.” Apparently not. The court held “that, because Jeremy Gibson’s maritime worker status as a non-seaman was never adjudicated under the LHWCA and the compensation order did not expressly resolve this issue under the LHWCA . . . Gibson’s Jones Act claims are not barred, and election of remedies, equitable estoppel, and collateral estoppel do not apply.” The facts of the case are fairly simple. The injured worker fell through a hatchRead more
Borrowed Welder Was Not a Seaman
A new case out of the Fifth Circuit addresses seaman status for a welder. The welder was employed by a contract company. During his employment with the contractor, the welder worked “on various rigs, barges, and vessels” owned by the contractor’s clients. But, “he spent less than thirty percent of his time in service of any one vessel or group of vessels.” One day, the welder went to work on a barge, the D/B SUPERIOR PERFORMANCE, and he was injured in a gas explosion while welding inside a well platform. At the time of the accident, the welder was working a job that was scheduled to last two months. An important issue in the welder’s case was whether he was a “seaman.” The Supreme Court has articulated a two-prong test to determine seaman status under the Jones Act: An employee’s duties must contribute to the function of the vessel or to theRead more
What is a Jones Act Seaman? What is the 30% Rule?
One of the most asked questions in Jones Act litigation is, “What does it mean to be a seaman?” The United States Court of Appeals for the Fifth Circuit just clarified its answer…again. In Alexander v. Express Energy Services Operating, the injured worker was a lead hand/operator in the defendant’s “plug and abandonment (“P & A”) department, which specializes in plugging decommisioned oil wells on various platforms off the coast of Louisiana for [the defendant’s] customers.” The worker’s job duties included: Ensuring that everything was up and running properly on the deck of the platform; Ensuring that the plugging operations were successful; Working with the P & A team to check the pressure of well gauges and valves Removing the bridge plug from the well, placing a nipple in the well, and pumping fluids down the well to kill it. Once the well was plugged, then the P & ARead more
Just For Fun: Strongpoint Law Firm Playing Cards
What client gift is best suited for Strongpoint Law Firm? A pen? A paperweight? How about playing cards? I just received Strongpoint Law Firm’s first batch of playing cards. And as you can likely tell, I am flush with joy over the finished product. (I’ll stop with the bad puns now.) In all seriousness, I am lucky to have great clients–folks that become family over the course of their claim. If the new playing cards make my clients happy, then the cards make me happy, too. As you can tell from the picture, Strongpoint Law Firm represents injured workers and their families in claims arising under the Defense Base Act, the Longshore and Harbor Workers’ Compensation Act, the Jones Act, and in personal injury matters. If Strongpoint Law can help you, contact me (Jon Robinson) immediately. I can be reached by phone at (985) 246-3194, by e-mail at [email protected], orRead more
Supreme Court to Confer on Jones Act Punitive Damages
Will the Supreme Court hold that punitive damages are available in a Jones Act case? We will soon find out. In McBride v. Estis Well Service, the Supreme Court will have to review an en banc decision from the Fifth Circuit discussing the availability–or more precisely, the unavailability–of punitive damages. McBride involved the claim by the estate of a deceased seaman (among others) for unseaworthiness under general maritime law and negligence under the Jones Act after a truck-mounted drilling rig toppled over, killing one seaman and injuring others. Initially, a panel at the Fifth Circuit determined that punitive damages were available under the Jones Act. Following a rehearing en banc, the Fifth Circuit reversed course, determining that punitive damages are not available under an unseaworthiness claim because such damages are precluded by the Jones Act. A survivor’s recovery in a wrongful death Jones Act claim is limited to the recoveryRead more
The Supreme Court Denied Review in Dize and Other Maritime Cases
The Supreme Court is back in session. On October 6, 2014, the Court issued its Orders list, wherein a large number of cases were denied certiorari. Accordingly, the Court will not review: Dize v. Association of Maryland Pilots. The question presented in Dize was whether, when applying the Chandris, Inc. v. Latsis thirty-percent rule–that, ordinarily, a qualifying “seaman” under the Jones Act must spend thirty percent or more of his time in service of a vessel in navigation–a court may consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or whether a court must categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held. Gonzalvez v. Celebrity Cruises, Inc. The petitioners asked the Court to consider whether seamen are statutorily exempt from the 3-month limitationsRead more
Jones Act Employees Could Not Sue a Dual-Listed Company
On August 12, 2014, the Eleventh Circuit published a decision discussing jurisdiction and business entity structure in the context of a Jones Act lawsuit. The plaintiffs were three injured sea workers, each of whom collected maintenance and cure. Those were the benefits that the injured sea workers and other employees agreed to in their contracts with Cunard Celtic Hotel Services, Ltd. The plaintiffs became unsatisfied with the extent of their maintenance and cure, believing that the contracts impermissibly limited their compensation. So, they filed a class action against Carnival Corporation and Carnival PLC. The Defendants’ corporate structure was particularly important here. Cunard operated “under the corporate umbrella of Carnival Corporation & PLC–the dual-listed company (“DLC”) comprised of Carnival Corporation (a Panamanian corporation headquartered in Miami, FL) and Carnival PLC (a British corporation headquartered in Southampton, England).” The district court dismissed the plaintiffs’ lawsuit, determining that the court did “not haveRead more
Brief in Opposition Filed in Dize, a Jones Act “Seaman Status” Case
The Brief in Opposition has been filed in Dize v. Association of Maryland Pilots, the case concerning seaman status for maritime workers who spend time in the service of a moored vessel. The Brief in Opposition is a good read that questions the existence of the circuit split advanced by Ms. Dize in her petition. Here is the Introduction to the Brief in Opposition (with internal citations omitted where possible): In Chandris, Inc. v. Latsis, 515 U.S. 347 (1995), this Court held that, to qualify as a “seaman” under the Jones Act, an employee “must have a connection to a vessel in navigation (or an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” With respect to the “duration” element of that requirement, the Court endorsed “an appropriate rule of thumb”: “A worker who spends less than about 30 percent of hisRead more
Rhode Island Addresses the Scope of a Seaman’s Entitlement to Unearned Wages
In a lengthy decision, the Supreme Court of Rhode Island addressed a number of Jones Act-related issues, ultimately holding: (1) that the trial justice’s unearned wages jury instruction, which was part of his instructions to the jury with respect to the plaintiff’s claim for maintenance and cure, was erroneous and resulted in prejudice to the defendant; (2) that the trial justice overlooked and misconceived material evidence in the course of granting the plaintiff’s motion for a new trial on his claims for negligence under the Jones Act and breach of the warranty of seaworthiness; and (3) that the trial justice erred in applying Rhode Island’s prejudgment interest statute, rather than following federal maritime law, which would have required the plaintiff to request an instruction whereby the issue of awarding prejudgment interest (vel non) would be submitted to the jury. As to the unearned wages jury instruction, the court stated (withRead more
Supreme Court Petition Filed in Dize v. Association of Maryland Pilots
On April 18, 2014, counsel for Jennifer Dize, the personal representative of the Estate of William Smith Dize, filed a interesting and very well-written petition for certiorari in the Supreme Court of the United States. The issue: To qualify as a “seaman” under the Jones Act, 46 U.S.C. § 30104, a maritime worker who “contribute[s] to the function of [a] vessel or to the accomplishment of its mission” must have “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995) (internal quotation marks and alteration omitted). In assessing “substantiality,” this Court has endorsed a “rule of thumb” that, ordinarily, a qualifying seaman must spend 30 percent or more of his time in service of a vessel in navigation, id. at 371, but this CourtRead more
