Articles Posted in Admiralty/Maritime

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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.

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If you are injured during the course of your employment, you may have a cause of action against your employer for your injury. But beware of time limitations. Even if you have a solid cause of action, you must be careful to ensure that you file your claim before the time allotted for filing has elapsed. Otherwise, your claim might become “prescribed.” This means that a court will not hear your claim because too much time has passed. See Lima v. Schmidt, 595 So.2d 624, 629 (La. 1992). It is important to seek legal counsel immediately upon discovering any possible work-related injuries. A good lawyer will help you keep track of these deadlines to ensure any legal claims you may have do not become barred. The following case demonstrates the problems that can arise when you wait too long to bring your claim before the court.

In this case out of the Louisiana Fourth Circuit Court of Appeal, Mr. Larry Dufrene filed a lawsuit against his employer, Harvey Gulf, for damages arising from hearing losses he allegedly suffered while employed with Harvey Gulf. Mr. Dufrene submitted that his injuries were suffered in the course of his duties with his employer. Mr. Dufrene argued that in his time as a seaman for Harvey Gulf, from 1977 to 2010, he sustained significant hearing loss as a consequence of his duties and employment.

Because Mr. Dufrene was employed as a seaman with Harvey Gulf, the Jones Act and general maritime law applied. Maritime law is comprised of the laws and regulations governing activities at sea or in navigable waters. Under the Jones Act and maritime law, Mr. Dufrene had three years from the date of his injury to file his claim. See Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991).

Offshore-PlatformContract interpretation can be tough, but having a competent attorney review documents before you sign them goes a long way in avoiding surprises further down the line. This is important because the words that are not there are often just as important as the words that are, a lesson learned the hard way by Chet Morrison Well Services, L.L.C.

In 2008 Chet Morrison was retained by Palm Energy Offshore, L.L.C. to service two mineral wells at sea. To that end Chet Morrison contracted with Offshore Marine Contractors, Inc. to charter the Nicole , a vessel with extendable legs that are used to stabilize the ship at sea while the ship performs maintenance work on the mineral wells.

The Nicole Eymard departed Louisiana on July 18th and worked at a well located in the C37 block until July 27th. On the 27th the Nicole Eymard was sent to a well located in the WD55 block at the request of Palm Energy. After the repairs were completed on August 1st it was discovered that one of the legs of the Nicole Eymard was stuck. The ship remained there until August 18th when Offshore Marine Contractors ordered the leg severed. Once back in port the Nicole Eymard went through repairs, which were finished on October 10th.

offshore-gas-platform-1223799-683x1024The Jones Act is a set of federal rules that protects American workers injured while working at sea. Also referred to as the Merchant Marine Act of 1920, this law allows qualifying sailors who have been involved in accidents or become sick while performing their duties to recover compensation from their employers. So does everyone that is injured or who becomes sick while working offshore automatically qualify for benefits under the Jones Act? Not always. In the following case that stems from an oil platform injury we see how the courts evaluate the seaman status (status necessary to receive benefits) under the Jones Act.

Michael Alexander was employed by Express Energy Services Operating, L.P.’s plug and abandonment department which plugs decommissioned oil wells in various locations off the coast of Louisiana. In 2011, Michael’s foot was injured while working a project on a platform. Michael and the crew were working on the platform at the time of his injury but the crane that injured him was located on a liftboat operated for the benefit of the crew. Michael filed his action under the Jones Act (46 U.S.C. § 30104) seeking maintenance and cure benefits. Express filed a motion for summary judgment contradicting Michael’s seaman status stating that Michael was a platform-based employee who failed to satisfy the test for seaman status. A motion for summary judgment is a legal filing that states the law does prevents the other party in the lawsuit from proceeding for various reasons. In this case Express filed their summary judgment motion stating that Michael was not a seaman under the provisions of the Jones Act.

For the court to have decided against summary judgment, Michael would have had to show that there was a possibility of his employment status qualifying as a seaman and falling under the Jones Act. To qualify as a seaman an employee has to prove two things laid out by the Supreme Court in the Chandris case (515 U.S. 347 (1995). The first thing to prove is that the employee’s duties contribute to the running of the ship or vessel. The second thing to prove is that the employee performs a substantial amount of his duties on board the ship or vessel. The second part of this test is the most important to the analysis of seaman cases and is in place to separate the employees who are entitled to the protection of the Jones Act from the land-based employees who are not exposed to the same risks as employees who spend a majority of their time at sea.

Jones-Act-Maritime-1024x681Maritime law provides special remedies for seamen who are injured at sea such as maintenance and cure. These remedies may be sought from the seaman’s employer or vessel owner. Maintenance is a daily stipend for day-to-day living expenses for seamen who fall ill or are injured while in service of a vessel. See Jauch v. Nautical Servs., Inc., 470 F.3d 207, 212 (5th Cir. 2006). Cure is the payment of medical expenses. See Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1499 (5th Cir. 1995). These maritime damages are not dependent on the vessel owner’s or employer’s fault, but are treated as an implied term of any contract for maritime employment. A seaman may even recover maintenance and cure for preexisting medical conditions. This is unless the seaman knowingly or fraudulently conceals his or her condition from the vessel owner at the time he or she was employed. A recent case from the United States Fifth Circuit Court of Appeal explains how pre-existing injuries can complicate claims for maintenance and cure.

Willie Meche was the captain of the crew boat Miss Catherine, which served as a drilling rig off the Louisiana coast. On June 20, 2008, the crew boat was under tow to a location near Cote Blanche, Louisiana. Mr. Meche claimed that he was injured while lifting a hatch to check the oil on the vessel. He alleged that stormy conditions that day caused a wave to hit his boat and throw him over a railing. Mr. Meche filed a lawsuit against his employer and owner of the vessel, Key Marine Services, as well as his supervisor, Alex Doucet. Mr. Meche sought compensation under the Jones Act and general Maritime law, including claims for maintenance and cure against both defendants.

The District Court held that the defendants wrongfully refused to pay Mr. Meche maintenance and cure. It that Mr. Meche could recover maintenance and cure from both defendants because he aggravated a preexisting spinal injury when he lifted the hatch on the vessel. While the defendants argued that Mr. Meche forfeited his right to these remedies by lying about his preexisting medical conditions on his pre-employment questionnaire, the District Court rejected this argument. It found that Mr. Meche did not intentionally conceal his medical history, and was thus entitled to maintenance and cure.

It is vital to know proper court procedures at the outset of litigation or else an otherwise valid claim might be thrown out of court without ever being heard. One prime example is the need to send initial court documents to a defendant within a set deadline (sending such documents, such as a citation or summons, is known as service of process). Case in point, the Lafayette Parish Court of Appeal, in Boka v. Oller, recently upheld the dismissal of a claim without even considering the merits because service of process was delivered too late. Therefore, it is important to know the rules before bringing a lawsuit or a good claim might be lost due to a mere technicality, such as delivering papers too late. For a non-lawyer, an attorney can be instrumental in making sure proper procedures are followed so that the party has a chance to present their case in court.

In Lafayette Parish, Louisiana Code of Civil Procedure Article 1201 requires that service of the citation must be requested within a deadline of ninety days from commencement of the action. Article 1201 also notes that service of process on defendants is “essential” and “without them all proceedings are absolutely null.” The deadline for service is to ensure that defendants are aware of an action and have enough to prepare. Therefore, as a delay in service is deemed unfair to the defendant, a court may dismiss a claim if service of process is sent too late.

There are some limited exceptions to the rule, but, due to the risks involved in these exceptions, generally a party should attempt to serve process on time. For example, one exception permits late service if there is good cause for the delay. However, as the court is unlikely to accept run-of-the-mill excuses for delays, proving a good cause for failure to serve process on time can be difficult. As noted below, the court in Lafayette Parish found that there was no good cause for late service as the plaintiff knew the defendant’s address.

The Jones Act is a law that provides seamen the chance to bring personal injury suits against the owners and operators of vessels they are working on in cases where the owner or operator was negligent or in some other way at fault for the injury. One of the types of damage allowable under the Jones Act is that of maintenance and cure. In maritime law, maintenance is the employee’s daily living expenses and cure is the employee’s medical bills. If an employer has to pay maintenance and cure, they will only have to pay such costs until the seaman is either fit for duty, or at a point where added medical treatment will not improve his condition. This case goes into further detail about what is necessary for a plaintiff to receive an award for maintenance and cure in a Jones Act case, and the relationship between maintenance and cure and worker’s compensation in Louisiana.

In this case, the plaintiff was performing sandblasting and plating work on an offshore rig. While performing this work, the plaintiff slept and ate aboard the M/V Howard McCall, stored equipment on the vessel, and used the vessel as a work platform on several occasions. After the initial work on the rig was done, the plaintiff was brought back to the vessel to perform sandblasting work on the vessel itself. During this period of work, the plaintiff sustained injuries while exiting the ship’s wheelhouse. The plaintiff soon began receiving payments from the Louisiana Worker’s Compensation Commission who was the employer’s insurer.

Subsequently the plaintiff filed suit against both of the owners and the operator of the vessel under the Jones Act. The plaintiff made three basic claims: 1) the owners and operator of the vessel were negligent in maintaining the safety of the vessel, 2) the vessel was unseaworthy, and 3) the owners and operators owed him costs for maintenance and cure. During the jury trial, the negligence and unseaworthiness claims were dismissed, and the remaining claim of maintenance and cure was the only claim left. The jury found in the plaintiff’s favor and awarded him awards of maintenance and cure. The defendants appealed the jury’s award.

The Jones Act deals with injuries suffered by employees working on American sea-going vessels and their rights to workers’ compensation for those injuries. The Act requires employers to “maintain a reasonably safe work environment.” Another important feature of the Jones Act is that not only is the employer liable for the negligence of their employees, but also any amount of negligence on the employer’s part will result in some level of liability. In other words, in a Jones Act case, if one employee negligently injures another, both the offendin employee and their employer are liable.

The case of Martinez v. Offshore Specialty Fabricators, Inc. deals with a Jones Act claim and really brings to light how important it is to obtain quality legal representation. Mr. Martinez was a seaman employed by Offshore Specialty Fabricators as a mechanic. On May 26, 2008, he and his supervisor, Mr. Smith, went aboard a ship owned by Offshore to repair a defective winch. Both Martinez and Smith testified that the work space was very cramped and required them to bend over while swinging a sledgehammer for almost an hour when suddenly Martinez felt a pop in his neck. Smith testified that he saw Martinez visibly twitch and asked what was wrong. Martinez informed him that something was wrong with his neck, and Smith immediately told him stop working.

Shortly after the injury he told an on-board medic about soreness in his arm due to using the sledgehammer. Two days later Martinez visited another medic and told him that he was unable to move his head or jaw without shooting pain in his neck and shoulder. He was also interviewed by a claims adjuster hired by Offshore and told the adjuster that his injury was due to the cramped working conditions and hammering.

Under Louisiana law, there are very specific rules about how to properly serve someone, and one of the important aspects of service that an attorney has to get right is the timing of it. Furthermore, not only does the service have to be carried out in a timely manner, but it also has to be perfected properly.

This particular Supreme Court of Louisiana case dealt with service on a state entity, and it is important for your attorney to be aware of any differences that exist with regard to service requirements depending on who the other party is. According to the applicable state law, La. R.S. 13:850, “perfecting” a service request requires that the appropriate filing fees and transmission fees have been received by the clerk of the court and that the original signed document has been received by the clerk. All of this must be received within the proper timeframe. As stated in La. R.S. 13:850, the proper timeframe for perfection in this case is seven days.

In this case, the service request was received within the required ninety-day timeframe (ninety days since the filing of the petition), and the service request was perfected five days later once the requisite documents and fee payments were received by the clerk of the court. The question then is whether or not this counts as proper request for service: Was the request for service properly received within ninety days even though perfection of the request was outside of that ninety-day timeframe?