Articles Posted in Admiralty/Maritime

big-oli-rig-1239227-1024x769Decisiveness can be an excellent quality, especially in a judge.  Court dockets are usually quite full and it can take a very long time for cases to be resolved. Whenever there is a confusion over which law to apply, however, patience is the greater virtue.  In a lawsuit, lawyers will often request relief under various laws in hopes that one will bring success.   In a recent case out of Venice, Louisiana, the  Louisiana Fourth Circuit Court of Appeal reminded an Office of Workers’ Compensation Judge (“WCJ”)  just how important patience is when issuing an order in a case with competing theories of recovery.   

Shawn Johnson was a mechanic for The Wood Group working on its oil production platforms when he was injured in a boat collision on Grand Pass on March 12, 2014.  Grand Pass is a fishing channel, known as “the jump”, which is located close to Venice, Louisiana, in St. Bernard Parish.  After the accident, Mr. Johnson filed claims for compensation under both the Louisiana Workers’ Compensation Act (“LWCA”) and the federal Longshore and Harbor Workers’ Compensation Act (“LHWCA”).  At a December 19, 2014, hearing, the WCJ dismissed Mr. Johnson’s LWCA claim with prejudice asserting the WCJ lacked jurisdiction because the claim did not fall under the LWCA. The dismissal with prejudice would prohibit Mr. Johnson from refiling his LWCA claim.  Mr. Johnson’s LHWCA claim before a federal court was still pending at the time of the dismissal.

In the judgment, the WCJ did not explicitly find that Mr. Johnson’s claim was covered by the LHWCA.  Instead, she found that his claim did not fall under the LWCA. In her reasoning, the WCJ said that there is no longer concurrent jurisdiction so if a claim falls under any federal statute, that would preclude a state claim. The WCJ did not wait however for a definitive determination by the federal court on whether Mr. Johnson’s claim fell under the LHWCA.  If both claims were dismissed with prejudice Mr. Johnson would be completely deprived of relief.  Mr. Johnson appealed the case to the Fourth Circuit only requesting that the case is dismissed without prejudice (meaning it could be refiled) just in case the LHWCA claim did not survive.

barge-1544176-661x1024Sometimes we are asked to do a task at work that we do not feel qualified to perform. We think things like, “Hey, that wasn’t in my job description.” Well, that’s essentially what happened to Mark Barto but, unfortunately, attempting to perform his assigned task resulted in a back injury that led Mr. Barto to file a lawsuit.

Mr. Barto worked for Shore Construction, LLC (“Shore”) and was assigned by his company to perform the duties of a rigger on a derrick barge operated by McDermott, Inc. (“McDermott”). Unfortunately, Mr. Barto was met with the rare task of inspecting and providing maintenance on a cable crane. In fact, this type of job is done approximately once every two years. Mr. Barto had no experience providing this kind of maintenance and yet his superiors requested that he assist and then re-spool the cable. Mr. Barto was given no guidance on how to do the task and, according to the affidavits of a crewmember, he was “one of the lowest ranking riggers on the barge.”

To allow himself to effectively complete the task, Mr. Barto set up a makeshift scaffold within the spooling frame, as he seen someone else performing the task do. In this case, he laid a fir board across the frame to stand on in order to reach the cables.

boat-1392202-1024x683On the sea, a life jacket can save your life. In the courtroom, the life jacket that can save your case is provable and relevant facts. Seaman, Frank Glaze, recently found this to be true when a Louisiana Court dismissed his Jones Act personal injury case due to a lack of evidence.

Mr. Glaze was injured while he performed maintenance on the M/V SNIPE as relief captain for Higman Barge Lines.  Mr. Glaze contended that he suffered “numbness in his hands” as he worked with the needle gun. He also claimed elbow, knee, and lower back pain occurred soon after he completed his work.  Because of these injuries, Mr. Glaze sued his employer seeking relief under the Jones Act.

First, under “The Jones Act” Mr. Glaze claimed his injuries were the result of nonperformance of a “job safety analysis” and no policy regarding the length of time for a seaman to utilize a needle gun nor methods for proper use. Next, he claimed the M/V SNIPE was an “unseaworthy vessel” because of “unsafe methods of work.” Mr. Glaze further argued that the work technique was unsafe because: (1) the “job safety analysis” was not completed; (2) there were no “housekeeping” procedures in place; and (3) he was only allotted a small window of time to “chip and grind the rub rail.”

feet-in-a-stream-1395322-1024x768Evidence in a trial can take almost any shape or form.  For murder trials, people think of weapons.  For fraud cases, perhaps incriminating documents comes to mind.  For a personal injury case, the options are almost limitless yet likely “flip flop” is not the first image that pops up; especially in a maritime case.  Yet in this case, Garrard Myers makes quite the fuss over the state of his sandals.

Mr. Myers was working aboard Hercules Offshore Services, L.L.C.’s (“Hercules”) drilling rig in 2013 when he injured his left ankle coming out of the shower.  Mr. Myers subsequently filed a lawsuit against Hercules pursuant under the Jones Act and general maritime law.  See 46 U.S.C. § 30104 et. seq.  Mr. Myers alleged that Hercules’ drilling rig was unseaworthy and that Hercules was negligent in failing to provide handrails or slip-resistant surfaces in the vessel’s showers.  

At trial, conflicting facts were presented on the cause of Mr. Myers injury.  Mr. Myers stated that he simply slipped on the shower floor.  Hercules representative Randall O’Brien testified however that Mr. Myers stated his flip flop broke and then he fell in the shower.  Mr. O’Brien also testified that an incident report stated that Mr. Myer’s shoe broke and Mr. Myers signed this report.  Moreover, Mr. Myers admits to signing the report yet denies having read the portion of the report about his broken flip flop.  Mr. Myers at trial denied that his flip-flop was ever broken or that he communicated about his flip flops to anyone.  Mr. Myers even brought the supposed shower shoes to trial to show they were intact.

oil-1441845-1-768x1024It’s a common scenario: someone is injured or property is damaged because another party failed to use reasonable care. This situation is far from rare in the legal profession, and the responsible party is usually held accountable for their negligence with civil lawsuits. But what happens when the injured person attempts to hold the wrong party responsible? It seems unlikely, but as James Johnson discovered, it is possible and the consequences can alter the course of a lawsuit’s final outcome.

James Johnson was shot in the leg while working as a superintendent on a drilling rig located near the coast of Nigeria. On November 8, 2010, Nigerian gunmen invaded Johnson’s rig and an attacker shot him, causing a severe injury that triggered months of complications. The night before the incident, rig hands moved a piece of equipment in front of the stairs that connected the rig to the platform in order to work on a device connected to the moving equipment. When rig hands noticed the assailants’ boat approaching the next day, they attempted to raise the stairs from the platform but were unable to do so because the equipment blocked the stairs. The gunmen used the lowered stairs to board the rig.

Johnson attempted to hold the rig hands’ employers responsible. Under the concept of vicarious liability, an employer can be held responsible for employees’ wrongful actions if those actions took place during the course of employment. Stoot v. D & D Catering Serv., Inc., 807 F.2d 1197, 1199 (5th Cir. 1987). Johnson brought multiple claims for negligence under maritime law and the Jones Act against many parties, one of which was GlobalSantaFe Corporation (GSF). Each of the companies Johnson named related to one another through a complex corporate structure.

plataforma-1339356Being an employee aboard a ship in the Gulf of Mexico can be hard work, and it can also be dangerous work.  For Mark Baldwin, who worked as a sandblaster and painter for Cleanblast, LLC, danger presented itself when he was assigned to the vessel Brody Paul and serviced oil platforms located in the Gulf of Mexico.  Baldwin allegedly suffered severe injuries to his back and neck when he fell while working on a Tennessee Oil and Gas Company platform.  In a personal injury lawsuit, Baldwin claimed that Cleanblast failed to provide the proper equipment to complete the task.  However, the trial court dismissed the case, granting Cleanblast’s motion for summary judgment because it found that there was no genuine issue of material fact as to whether Baldwin, the plaintiff, was a seaman for Jones Act purposes.  Baldwin appealed and the Third Circuit reversed, finding that a jury should decide whether the plaintiff’s work duties qualified him for seaman status under the Jones Act.  See  46 U.S.C. § 688.

The most important aspect of this case is the Third Circuit’s interpretation of the Supreme Court’s ruling in Chandris, Inc. v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), which discussed the requirements for seaman status under the Jones Act.  In Mark Baldwin’s case in Louisiana, he alleged that he suffered injury because Cleanblast failed to provide the proper equipment to blast the risers on the rig they were instructed to service.  The plaintiff argued that as an employee covered by the Jones Act, Cleanblast “violated its non-delegable duty to provide him with a safe work environment.”  In order to be covered by the Jones Act, an employee must qualify as a “seaman.”  Cleanblast argued that the plaintiff was not a seaman and presented testimony by the plaintiff in a deposition wherein he admitted that he spent less than 30% of his time at work in service of the vessel to which he was assigned.  In fact, Cleanblast calculated that he spent “at most 28.65 percent” of his time at work in service of a vessel and posited that he spent most of his time working on oil platforms.  This percentage is important because in Chandris the Supreme Court held that there are two requirements for seaman status under the Jones Act.  First, the employee must “contribute to the function of the vessel or to the accomplishment of its missions.”  Second, the employee must have a link to a vessel or vessels in navigable waters that is “substantial in terms of both duration and nature.”

Cleanblast focused its motion for summary judgment on the durational requirement and pointed to the Supreme Court’s statement in Chandris that it is a “rule of thumb” that “a worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act.”  Based on Baldwin’s admission to spending less than 30 percent of his time in service of the vessel, Cleanblast argued that it was entitled to summary judgment and the trial court agreed, essentially holding that the 30 percent figure mentioned by the Supreme Court was a dispositive rule.

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While many of us think of pirates as something that only exist on television or in the movies they do still exist throughout the world.  While they no longer sack and plunder ships for gold they do cause great havoc by kidnapping ships and invading oil rigs off the coast of Africa.  But can a foreigner who was kidnapped while working on an oil rig off the coast of a foreign land sue his employer under the Jones act for failing to protect him while he was working on the sea?  The following case out of New Orleans Louisiana discusses these concepts and answers that question.

Robert Croke, a citizen of Canada, was working aboard an oil rig off the coast of Nigeria. He claims that gunmen boarded the rig, kidnapped him, and then held him hostage for ten days. After his hostage experience, Croke filed a lawsuit in New Orleans Louisiana against PPI Technology Services, L.P., and GlobalSantaFe Offshore Services, Inc. According to Croke, PPI was his employer while GlobalSantaFe was another employer of rig workers. In his lawsuit against both companies, Croke’s legal theory is negligence: he argues that both companies were negligent because they did not have measures in place that would have forestalled the incident. Since Croke is a Canadian citizen, and his alleged kidnapping occurred in Nigerian waters, the district court dismissed the case under the foreign seamen exclusion provisions of the Jones Act.

Not being happy with the dismissal Croke then appealed that decision to the United States Court of Appeals Fifth Circuit. The appeals court first looked to Croke’s assertion that the district court did not properly apply the foreign seaman exclusion provisions of the Jones Act. Specifically, the court looked at the following section. 46 U.S.C. § 30105(b) which states in summary that maintenance and cure (maintenance is payment for daily living expenses and cure is for medical cost) cannot be received under federal maritime law if the injured party is not a United States Citizen and further an exclusion applies if the accident occurs in non United States territorial zoned waters.

sand-footprint-1539133-768x1024Not all Workers Compensation insurance claim decisions are black and white.  Sometimes those claims can include an overlap with other federal statutes that may or may not also provide coverage.  When those circumstances arise insurers need to base their decisions on the facts and the law and not for financial gain.  If done properly the denial of a valid claim does not automatically subject an insurer to penalties in Louisiana as the following case demonstrates.  

Global is a temporary employment agency that provides short-term workers for various construction and industrial purposes. On August 21, 2010 Global employee Librado De La Cruz sustained an injury while cleaning a beach impacted by the Deepwater Horizon oil spill. Global’s workers’ compensation insurer, Commerce and Industry Insurance Company (“Chartis”), denied the claim, refusing to provide benefits, because the insurer believed the employee’s eligibility for benefits under the federal Longshore and Harbor Workers’ Compensation Act (LHWCA) relieved its obligation.  Global believed this decision was not only wrong but that it was also made in made bad faith so they filed a lawsuit to challenge Chartis.

De La Cruz’s activities on August 21 brought into question whether or not the Chartis workers’ compensation policy covered his injury. He spent two hours that day loading and unloading a vessel at the pier. He then spent the next six or seven hours cleaning the beaches. While cleaning the beaches, he allegedly sustained the injury lifting a bag of oil-laden sand that would later be loaded onto a truck and transferred to a vessel for removal. The location of his injury was a few feet from Gulf waters and around a half-mile from the pier at which the vessel was docked. His duties and location were not in dispute.

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Servicing drilling platforms is big business in the Gulf of Mexico.  To transport pipes and other supplies out to the oil platforms ships or large vessels are often used. Unfortunately not all vessels are in “shipshape” as a recent case out of the Eastern District of Louisiana shows.

On May 28, 2013, the RICKY B, a boat operated by D&B Boat Rentals (“D&B”), began taking on water in its engine room while servicing drilling platforms in the Gulf of Mexico. The following day, after several attempts to stop the flooding, the RICKY B contacted Crosby Tugs, L.L.C. (“Crosby”) for assistance. At this point, the RICKY B had lost power and its crew was abandoning ship. Crosby agreed to dispatch a tug to tow the RICKY B to shore. When the tug arrived several hours later, RICKY B was sitting low in the water. The tug, following the owner and operator of D&B’s instructions, attached a tow line and towed the vessel to shallower waters at speeds of no more than five knots without pumping the water in engine room. However, after about 13 minutes into the towing, the RICKY B completely submerged and sunk to a rest on the bed of the Gulf of Mexico.

D&B filed suit against Crosby to recover expenses incurred in the boat sinking, alleging that Crosby negligently towed the RICKY B without pumping the water first, and at too high speeds, causing the boat to sink. After conducting a bench trial, the district court ruled in favor of Crosby. The Court found that D&B presented insufficient evidence to establish that Crosby acted with either negligence or gross negligence. The district court held that the nature of the services provided by Crosby were salvage, not towing; and because the damage ultimately suffered by the D&B was indistinguishable from the purpose of the salvage operation (i.e., to prevent the sinking), a gross negligence standard applied in determining Crosby’s liability instead of ordinary negligence. The standard of ordinary negligence is conduct that deviates from the proverbial “reasonable person,” whereas grossly negligent conduct is that which has fallen so far below the ordinary standard of care that one can expect, to warrant the label of being “gross.” Moreover, in this case, the district court held that even if the court applied an ordinary negligence standard that D&B presented insufficient evidence to prove Crosby’s ordinary negligence. Furthermore, under the Pennsylvania Rule, D&B is required show that the statutory violations of the RICKY B were not the cause of the accident, which they did not. The Pennsylvania Rule creates a rebuttable presumption of causation against an entity involved in a maritime accident if that entity is in violation of a maritime rule or regulation intended to prevent that type of accident.  See Pennzoil Producing Co. v. Offshore Express, Inc., 943 F.2d 1465, 1472 (5th Cir. 1991).

workers-1215831-1-1024x683It  seems an insurance company’s first response to a claim is to deny the claim. The Louisiana Workers’ Compensation Corporation (“LWCC”) is no exception. The following case out of Loreauville Louisiana demonstrates the  arguments that can be made and standards to assess whether an injured employee is due LWCC’s benefits or benefits as a longshoreman.

Luis Hernandez was working on the Bayou Teche in Loreauville when he suffered an injury while cutting timber. Mr. Hernandez was hired to build a boat ramp into the Bayou Teche. He was injured  while working in a grassy area between thirty and one hundred feet away from the boat ramp. Mr. Hernandez filed a claim for compensation with the Office of Workers’ Compensation in 2014 after  receiving his injuries. He was employed by UNO Enterprises, LLC and Louisiana Workers’ Compensation Corporation was UNO’s workers’ compensation carrier. LWCC denied  coverage of the claim asserting that Mr. Hernandez was a longshoreman under the Federal Longshoreman & Harbor Workers’ Compensation Act (“LHWCA”) found in the United States Code in Title 33. Therefore,  the LWCC reasoned that their policy did not provide for coverage for Mr. Hernandez but rather the LHWCA applied.

Good lawyers know to challenge an insurance company’s claim denial, which is what Mr. Hernandez’s  attorney did in this case. After a lower court decision an appeal was filed and the Louisiana Third Court of Appeals received the case to utltimately decide whether the LHWCA did apply and thus whether LWCC would be required to provide workers’ compensation coverage to Mr. Hernandez.