Articles Posted in Admiralty/Maritime

oil-power-1182675-1-1024x768Waiting until the last minute to do almost anything is not recommended but it is especially true if you are seeking to bring a claim for damages. That is what some fishermen found out when they sought to bring claims under the Oil Pollution Act of 1990 (OPA) for damages that resulted from an oil spill.  The oil spill came from a barge owned by American Commercial Airlines, LLC (ACL) that had been involved in a collision on the Mississippi River in the Port of New Orleans on July 23, 2008.

On July 25, 2011, the fishermen claimants filed an action against ACL in the United States District Court for the Eastern District of Louisiana.  The district court denied ACL’s motion for summary judgment but certified to the United States Court of Appeals for the Fifth Circuit two issues of law regarding the requirements for proceeding under OPA.  One issue was whether the claimants met the requirements when they did not personally sign the claim forms and did not provide specific requested items in support of their claims. The other issue was whether the claimants had to make a proper presentment at least 90 days before the three year limitation period ran out.  The first issue pertained to all claimants but the second issue involved only those claimants who first presented their claims on or after July 22, 2011, because those claimants had not waited the 90 days after first presenting their claims to file an action in order to not be barred by the three year limitation period.

Individuals and entities harmed by an oil spill may file claims for damages under OPA.  To promote settlement and avoid litigation, there are specific procedures under OPA that claimants must follow.  See  Johnson v. Colonial Pipeline Co. , 830 F. Supp. 309 (E.D. Va. 1993).  Under OPA’s presentment requirement, claimants must first present their claims to the responsible party and then wait until that party denies all liability or until 90 days from the time of presentment have passed before filing an action against that party.  See OPA, 33 U.S.C. § 2713 (2016).

container-barge-1238820-1024x321The fate of a claim brought under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) is often determined based upon the weight the Administrative Law Judge (“ALJ”) gives certain evidence. But how should the ALJ weigh conflicting evidence from different sources? This question was recently addressed by the United States Fifth Circuit Court of Appeals in Petron Industries Inc. v. Courville.

Ryan Courville suffered injuries to his thoracic spine while lifting equipment aboard a barge. Because of how Mr. Courville sustained his injury, he was eligible for compensation under the LHWCA. Soon after the injury, Mr. Courville sought medical treatment from multiple different doctors in an effort to alleviate the pain caused by his spinal injury. His initial treating physician recommended physical therapy but did not think surgery was necessary at the time. Mr. Courville, because of his continued pain, sought a second opinion. Mr. Courville’s second physician recommended more physical therapy and prescription medication. Still experiencing pain, Mr. Courville sought a third opinion. Mr. Courville’s third physician, a pain management specialist, tried additional physical therapy, which proved equally unsuccessful. Mr. Courville was then referred back to his second physician who ultimately recommended surgery.

Under the LHWCA, “[o]nce an employee establishes that his injury was work-related, he is entitled to all reasonable and necessary medical expenses related to that injury.” Amerada Hess Corp. v. Director, 543 F.3d 755, 761 (5th Cir. 2008) (citing 33 U.S.C.A. § 907 (2015)). Mr. Courville asked for Petron Industries and American Home Insurance’s (collectively, “the Petitioners”) to pay for the surgery pursuant to the LHWCA. Disagreeing that surgery was necessary, the Petitioners sought additional medical opinions. The Petitioners’ first physician opined that it was “more likely than not” that surgery would be needed. The Petitioners’ second physician stated that surgery would not be needed and that Mr. Courville could return to a “medium duty” job.

misc-rig-oil-ship-yard-equipme-1468457-1024x768In the insurance industry, one of the most important issues to consider when determining whether a claim is covered under a policy is the wording of the contract. Whether it is home, auto, life, or, as in this case a marine insurance policy, the exact words of the contract will control whether or not a specific claim will be paid out. Equally important are the laws which will control how those words are interpreted. And in a recent case out of Louisiana, one insured was out of luck over the interpretation of one small word.  

In a recent Louisiana case, Union Oil Company of California, which owned an offshore drilling platform near the coast of Louisiana, contracted with Shaw Global Energy Services Inc. (“Shaw”) from Delcambre, Louisiana, to perform sandblasting and painting for the platform. In 2003, Michael Cash, an employee of Shaw, was injured by an employee of Max Welders, Inc. while being transferred by crane from a platform to a supply vessel. Mr. Cash filed a lawsuit against Max Welders, its primary insurance company, and its marine excess insurer, Liberty Insurance Underwriters, Inc. (“Liberty”).  During the course of the lawsuit, Liberty notified Max Welders that they were declining to cover the incident with Mr. Cash because the act of ferrying Mr. Cash to and from the platform fell under an exclusion in the excess insurance policy. The exclusion Liberty pointed to was a platform exclusion where they would not cover anything “arising out of the ownership, use or operation of . . . platforms.”  Max Welders, the primary insurer, and Mr. Cash settled for the policy limit of one million dollars. But because of the severity of Mr. Cash’s injuries, Max Welders agreed to pay an additional four hundred thousand dollars.

Max Welders brought a cross-claim against Liberty alleging the platform exclusion did not apply and that coverage should be extended to cover the four hundred thousand dollars in excess payment.  The United States District Court for the Western District of Louisiana agreed with Max Welders that the platform exclusion did not apply because the word “use” in the insurance policy was ambiguous.  The District Court reasoned that because the transferring of Mr. Cash to the vessel was not within the intended purpose of an oil rig platform (extracting energy) that the exclusion did not apply and the insurance company had to pay Max Welders for the four hundred thousand dollars.  Liberty appealed to the United States Fifth Circuit Court of Appeal.    

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.

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.

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