In Bollinger Shipyards, Inc. v. Director, Office of Worker’s Compensation Programs, U.S. Dept. of Labor, (5th Cir. 2010) the United States Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter.

The Bollinger plaintiff, Jorge Rodriguez, fell and allegedly injured himself while welding for his employer, Bollinger Shipyards, Inc.  At the time of his alleged injury, Rodriguez had been working for Bollinger for approximately eight months, having initially obtained employment by falsely holding himself out as a United States citizen.  Rodriguez presented Bollinger with a false Social Security Card.  Bollinger initially paid Rodriguez temporary disability benefits and reimbursed him for a portion of his medical bills.
 

The primary question on appeal was whether an undocumented immigrant could be eligible for benefits under the LHWCA.  Bollinger argued that Rodriguez’s injury caused him no loss of wage earning capacity because he had no legal wage earning capacity at the time he was injured.  As such, Bollinger argued that Rodriguez was per se ineligible under the Act.  Bollinger further argued that the Benefit Review Board’s ruling undermined the Congressional policies embedded in the Immigration Reform and Control Act of 1986.  Bollinger relied on a line of Supreme Court cases, including Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 (2002), which made the distinction as to whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid a conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.

The Director, OWCP and several amici curiae filed briefs in support of Rodriguez’s eligibility for benefits under the LHWCA, arguing that failing to require workers’ compensation for immigrant workers encourages employers to hire undocumented workers.  The Fifth Circuit reviewed the statutory language of the LHWCA and concluded that the statute provides coverage to undocumented immigrants.  The Court found the precise language of §909(g) persuasive.  Section 909 (g) states that “[c]ompensation under the [the LHWCA] to aliens not residents (or about to become nonresidents) of the United States or Canada shall be the same in amount as provided for residents.”  The Fifth Circuit noted that other courts, have concluded that the unmodified term “alien” encompasses both documented and undocumented immigrants.  The court noted that compensation under the LHWCA is a non-discretionary statutory remedy.  Unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee.  Further, the court held that awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, because Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits.

Finally, the court held that Fifth Circuit precedent has been that undocumented immigrants are eligible under the LHWCA, citing Hernandez v. M/V Rajaan, 841 F.2d 582, amended after rehearing, 848 F.2d 498 (5th Cir. 1988), the court held that Rodriguez was entitled to benefits because Bollinger failed to provide any evidence that Rodriguez was “about to be deported or would surely be deported.”  The court also found persuasive the D.C. Circuit’s opinion in Rivera v. United Masonry, Inc., 948 F.2d 774, 775 (D.C. Cir. 1991), in which the court declined to take into consideration an immigrants undocumented status when determining his eligibility for benefits.

Bollinger filed a petition for review which was denied in all respects. (5th Cir. April 22, 2010).  Although the Fifth Circuit seems to have made it clear that undocumented immigrant will remain eligible for benefits under the LHWCA, the court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the U.S.
 

In Solana v. GSF Development Driller I, et al., 587 F.3d 266 (5th Cir. 2009), the United States Fifth Circuit reiterated the longstanding rule that generally, a seaman belonging to a vessel in peril cannot claim a salvage compensation for saving his vessel.

The facts in Solana are quite interesting.  As Hurricane Katrina approached the Gulf Coast, Global Santa Fe (GSF) evacuated its jack-up and anchored rigs in the Gulf of Mexico, which included the Development Driller I (DDI), a $350 million dollar semi-submersible drilling rig. The DDI’s power was shut off and its crew was evacuated.  Solana, a 20 year GSF employee and Offshore Installation Manager (OIM) of the DDI, and Lally, a ballast control operator and senior dynamic positioning operator, were among those employees who were evacuated from the rig.
 

Solana and Lally later filed suit seeking an award of pure salvage because they were part of the team that ultimately salvaged the vessel.  Solana and Lally likely envisioned an enormous “payday” as the DDI was worth more than 350 million dollars.  GSF moved for Summary Judgment asserting the longstanding rule that crew members are not entitled to a salvage award for assistance rendered to their own vessel.  Solana and Lally countered with the argument that in certain circumstances, crew members can be salvors.  Specifically, Plaintiffs cited existing jurisprudence holding that extraordinary events may occur in which a seaman’s connection may be dissolved de facto, or by operation of law, or they may exceed their proper duty, in which case they may be permitted to assert a claim as salvors.  The Fifth Circuit disagreed holding that the rule barring a crew member from a salvage award is longstanding and rooted in a crew member’s duty to save both ship and cargo.  Obviously, it is unwise to tempt a crew member to let their ship and cargo slip into a position of danger in order to claim a salvage award.

Ultimately, the Fifth Circuit held that Solana and Lally did not volunteer service to the DDI when it was in distress as volunteers within the parameters of the law of salvage.  Instead, Solana and Lally had been asked by GSF to board the DDI following Katrina, and they expressly agreed to do so.  Moreover, they expected to be compensated by GSF for their efforts to stabilize the DDI after it was damaged by Katrina regardless of whether those efforts were successful.  A binding agreement to pay for salvage services irrespective of the success of the enterprise will defeat a claim for pure salvage.  As such, Solana and Lally’s claims for pure salvage were dismissed.
 

It is a fairly common practice for individuals purchasing pleasure yachts to take calculated steps to minimize sales taxes on their purchases. In fact, a simple “Google” search on the subject reveals many websites offering free advice on this issue. One of the tactics suggested by several websites seems fairly simple: instead of the individual purchasing the yacht, the individual forms a corporation, and the corporation purchases the yacht.

In Kelly v. Porter, Inc., 687 F. Supp. 2d 632 (E.D. La. 2010), the Eastern District of Louisiana made it clear that individuals who purchase recreational vessels through corporate entities cannot recover for any emotional distress or loss of enjoyment that the individual LLC member sustains when the vessel is damaged. The Kelly plaintiff wished to purchase a yacht for his own personal use. In an attempt to minimize the sales tax on that purchase, the Kelly plaintiff formed a new limited liability company (LLC) and named himself the sole member. Although the yacht was titled in the name of the LLC, the Kelly plaintiff considered himself to be the “true” owner of the yacht.

Shortly after it was purchased, the yacht was extensively damaged when it took on water while docked in its slip. The Kelly plaintiff and the LLC filed suit against the defendants alleging that they sustained “emotional damages” and “loss of enjoyment” due to the yacht being damaged. In response, the defendants filed a motion for summary judgment seeking to have all of the claims of the individual plaintiff dismissed for lack of standing. The defendants cited La. R.S. 12:1329, which states that the members of a LLC do not have an ownership interest in property owned by the LLC. Although the Kelly plaintiff attempted to claim that he was the “equitable” owner of the yacht, the Court disagreed and dismissed all of his claims.

Additionally, the defendants sought to have the LLC’s claims for “emotional damages” and “loss of enjoyment” (i.e., “non-pecuniary damages”) dismissed as well. The Court dismissed those claims, citing a litany of cases holding that corporations “cannot recover non-pecuniary damages such as loss of enjoyment or emotional damages.”

This decision makes it clear the Courts will not allow would-be yacht purchasers to “have it both ways.” Therefore, the author suggests that individuals considering purchasing a yacht should carefully consider all of the consequences of purchasing a yacht through an LLC and make a well-informed decision.
 

The Limitation of Liability Act provides, inter alia, that a vessel owner may petition a district court of competent jurisdiction for limitation of liability within six months of receiving written notice of a claim.  See generally 46 U.S.C.A §§ 30501-30512 (West 2010).  If the vessel owner fails to petition the court and the six month period lapses, it is thereafter precluded from seeking the Act’s protection.  The Act, however, does not address the effect that one co-owner’s failure to file a petition for limitation has on another co-owner’s right to subsequently seek limitation of liability. In other words, if co-owner “X” of a vessel receives notice of a claim against it and fails to file for limitation of liability within the requisite six-month period, is co-owner “Y,” who did not receive notice, precluded from filing for limitation of liability?

The court addressed a scenario in which a vessel was owned by a corporation with a lone shareholder.  The shareholder received notice of a claim against her, but the corporation did not.  Six months passed without any filing for limitation of liability.  Thereafter, the corporation sought protection under the Limitation of Liability Act.  After determining that the shareholder and the corporation were both owners of the vessel, the court addressed whether notice to one owner (the shareholder) and her subsequent failure to file for limitation, precluded the other owner (the corporation) from filing same.  The court held that the corporation had never been on notice of any claim against it and as such, it could seek protection under the Act.  Thus, in the aforementioned scenario, if co-owner “X” fails to file for limitation of liability within six months of receiving written notice, and co-owner “Y” subsequently receives notice of a claim against it, co-owner “Y” is not prejudiced by the failures of co-owner “X.”

Notably, LADY JANE cites no authority to support its holding nor is LADY JANE cited in any other federal opinions.  It appears that, at this time, LADY JANE is the only authority on this matter.
 

It is well known that a seaman who is injured on the job can file suit against his employer in negligence due to the statutory provisions of the Jones Act. 45 U.S.C.A §§ 30104.  However, in a Jones Act suit, the injured seaman is prohibited from recovering “non-pecuniary” damages from his employer, a category which includes punitive damages and loss of consortium. (1).  This limitation on recoverable damages is due to the language of Jones Act itself. Miles v. Apex, 498 U.S. 19 (1990).

In addition to bringing claims against his employer pursuant to the Jones Act, a seaman injured on the job often also files claims against non-employers. These claims are not dependant on the Jones Act, but rather general maritime law. In this situation, plaintiffs often attempt to recover non-pecuniary damages from the non-employer. Plaintiffs suggest that since there is no specific prohibition against the recovery of non-pecuniary damages in general maritime law, then why should an injured seaman be denied recovering non-pecuniary damages from non-employers?
 

Although Scarborough was decided by the U.S. Fifth Circuit in 2004, Plaintiffs continually try to ignore it. For example, in Walker v. Rowan Companies, Inc., 2009 WL 2030605 (E.D. La. July 9, 2009), the plaintiff attempted to recover non-pecuniary damages from a non-employer under the general maritime law. In an attempt to avoid the rule of Scarborough, the plaintiff argued that a distinction should be made when the alleged negligence occurred on land, as opposed to at sea. In rejecting the plaintiff’s claim, Judge Engelhardt of the Eastern District of Louisiana noted that it was bound by Scarborough, and that the location of the alleged negligence bore “no significance.” Id. at *2.

Thus, it is highly recommended that non-employer defendants in such lawsuits should attempt to dismiss a plaintiff’s claims for non-pecuniary damages at an early stage by way of a motion for summary judgment. 

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 (1) “Non-pecuniary” references non-economic damages, such as loss of enjoyment, etc. Although pain and suffering is certainly non-pecuniary, the Courts have made an exception to the rule for such damages.
 

Due to the non-pecuniary nature of pain and suffering, Jones Act seamen will often use various methods to provide the trier of fact with a concrete basis for a damage award for pain and suffering.  One method that Plaintiffs may utilize is to introduce their medical bills for the sole purpose of highlighting the cost of their medical care.  Once the bills have been admitted, Plaintiffs will argue to the trier of fact that the high dollar amount of their medical bills corroborate their pain and suffering.  Alternatively, Defendants may introduce medical bills and point to the low cost of a Plaintiff’s medical care to prove the Plaintiff’s lack of pain and suffering.

In a recent ruling closer to home, United States District Judge Lance Africk agreed that the amount of expense associated with Plaintiff’s medical bill would not assist the Jury in arriving at a pain and suffering award.  Judge Africk held that “such evidence does not tend to prove a matter at issue in the case, or an inference of any consequential fact.”  As such, the medical bills were excluded.

It is important to note that the jurisprudence cited above is applicable only when a party attempts to introduce medical bills to prove/disprove a seaman’s pain and suffering.  Medical bill can be relevant and admissible if they are the subject of a dispute in the case.  If, for example, in a maintenance and cure action, the employer/vessel owner has denied Plaintiff cure, then the medical bills will be relevant and admissible.  Medical bills may also be relevant in the event that an employer/vessel owner argues that the cost of a Plaintiff’s medical treatment is not fair and reasonable pursuant to the cure doctrine.
 

In Atlantic Sounding Co., Inc., et al. v. Townsend, the United States Supreme Court held that punitive damages are available to a seaman if his employer/vessel owner has willfully failed to fulfill its maintenance and cure obligation. This decision effectively overrules recent United States Court of Appeals jurisprudence, such as Guevara v. Maritime Overseas Corp, 59 F.3d. 1496, 1995 AMC 2409 (5th Cir. 1995) and Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1995 AMC 2022 (9th Cir. 1995), which interpreted the prior Supreme Court case of Miles v. Apex Marine Corp., 498 U.S. 19, 1991 AMC 1 (1990) to bar claims for punitive damages against vessel owners for the willful failure to pay maintenance and cure.

The Supreme Court based its decision on three legal principles: (1) punitive damages have long been available in common law; (2) the common law tradition of punitive damages extends to maritime claims; and (3) there is no evidence that claims for maintenance and cure are excluded from this general admiralty rule. The Court noted that Congress has not enacted legislation departing from the above common law principles. More importantly, the Jones Act, which provides a vehicle for an injured employee to sue his employer/vessel owner, did not eliminate punitive damages. Thus, the Court held that a seaman may advance a claim for punitive damages against his employer/vessel owner.

It is important to note that the Supreme Court did not decide whether Townsend was entitled to a punitive damage award; instead, the Court determined that he had the right to bring a punitive damage claim. Townsend must ultimately prove that Atlantic Soundings’ failure to pay maintenance and cure was willful and wanton to recover punitive damages.

It is likely that a seaman advancing a claim for punitive damages will be held to the same burden of proof that is necessary for an award of attorney’s fees in a maintenance and cure action. Attorney’s fees incurred by a plaintiff in prosecuting a claim for maintenance and cure may be awarded for the failure of an employer to properly investigate and pay maintenance and cure claims. Vaughan v. Atkinson, 369 U.S. 527, 1962 AMC 1131 (1962). Yet, an award of attorney’s fees for the failure to pay maintenance and cure is only appropriate under the most egregious circumstances. A vessel owner who acted reasonably in refusing to pay maintenance and cure is liable only for the amount of maintenance and cure he failed to pay.

However, if an employer/vessel owner lacks a reasonable defense to the payment of maintenance and cure and has exhibited callousness and indifference to the seaman’s plight, he is liable for attorney’s fees. As such, the award of attorney’s fees is proper only if the employer has been found to have acted in a fashion that is callous and recalcitrant, arbitrary and capricious or willful, callous and persistent in refusing to pay maintenance and cure. Morales v. Garijack, Inc., 829 F.2d 1355, 1358 (5th Cir. 1987). This is a high burden and can only be decided on a case by case basis.
 

Still, the Fifth Circuit notes: "If Cenac had established a health insurance plan that covered both work-related and non-work-related injuries and contained specific language requiring that benefits received under the plan be set-off against a judgment adverse to the tortfeasor [Jones Act employer], then a court might find that the plan was intended to indemnify the tortfeasor from liability."  [See Allen v. Exxon Shipping Co., 639 F.Supp. 1545, 1549 (D.Me. 1986).]

Leroy Johnson, a Jones Act Seaman employed as a tankerman by Cenac Towing, injured his back while carrying a 175-pound cross-over hose aboard a Cenac vessel. Johnson had applied for employment with Cenac on two occasions. Both times, Johnson indicated that he had never suffered any on-the-job injuries and that he did not have any physical conditions that might interfere with or hinder his job performance. In connection Cenac’s pre-employment physical examinations, Johnson completed medical history questionnaires. Both times, Johnson indicated that he had never hurt his back and had never received disability compensation. Yet Johnson had suffered work-related injuries on two occasions prior to his employment with Cenac. In 1994, Johnson sustained neck and back injures that left him disabled for 10 months; Johnson underwent neck surgery for these injuries. In 2001, Johnson re-injured his back and was disabled for 13 months; Johnson received steroid injections for the re-injury.

Johnson then injured his back in 2005 while working for Cenac. Johnson applied for and received insurance benefits for his back injury under an employer financed insurance plan, which provided coverage only for non-work-related injuries.

District Judge Sarah Vance denied plaintiff maintenance and cure benefits on the grounds that plaintiff had willfully concealed his pre-existing medical conditions. Judge Vance awarded plaintiff damages under the Jones Act. While Judge Vance found the plaintiff’s injuries to be aggravations of his pre-existing conditions, the Fifth Circuit found that Judge Vance’s ruling was unclear as to whether the plaintiff had been contributorily negligent by willfully concealing his prior injuries from Cenac. The Fifth Circuit remanded the case to the District Court to determine whether plaintiff had been contributorily negligent in “exposing himself to heavy labor with a weakened back.” The Fifth Circuit’s decision did not make a determination on Johnson’s contributory negligence.
 

In a major victory for business interests involved in maritime operations and what many commentators say is a harbinger of things to come, the United States Supreme Court recently struck down the $2.5 billion punitive damage award against ExxonMobil in a case involving claims for individual economic damages filed by landowners, native Alaskans and commercial fisherman following the 1989 grounding of the Exxon Valdez. See Exxon Shipping Company, et al v. Grant Baker, et al, 554 U.S. ____(June 25, 2008).  The Court determined that the upper limit for punitive damages in maritime cases was a 1:1 ratio to compensatory damages and sent the case back to the appellate court to reduce the punitive damage award to $507.5 million which was the amount of compensatory damages (those agreed upon in settlement and those awarded following trial) that the trial court determined were relevant for purposes of determining punitive damages.

After deciding that punitive damages were available under maritime law against corporations and that the Clean Water Act does not prohibit punitive damages in maritime oil spill cases, the Court launched a 28-page discussion of the history of punitive damages, the purpose of punitive damages, predictability of punitive damage awards and finally, the amount of punitive damage awards available in maritime cases.[2]

In reviewing the history of punitive damages, the Court noted that the concept of punitive damages is found in ancient times, in the Code of Hammurabi, in which a tenfold penalty was available for stealing a goat. The modern concept of punitive damages dates back to at least 1763 when damages “for more than the injury received” were awarded.  However, the Court recognized that punitive damages are not universally accepted with some states prohibiting them entirely and others (including Louisiana) limiting the availability of punitive damages to only those cases in which statute specifically authorize them.  The Court also noted that historically, the purpose of punitive damages was to punish certain, extraordinary, harmful conduct and to deter others from that same harmful conduct. 

The Court, in coming to a decision, analyzed punitive damage awards in other cases from the perspective of whether they were fair and predictable. The court reasoned that the law is based on a basic premise of fairness (thus punitive damages should be fair) and that penalties should be reasonably predictable so that even the “bad man” has some ability to predict the consequences when choosing how to act.

The Court concluded that in deciding whether the punitive damage award against ExxonMobil met these two criteria, it could pick from three approaches. The first involved a “verbal” approach that established criteria for judicial review of punitive damage awards to determine whether they were excessive. This approach was rejected because this criterion would not provide the predictability that the court was seeking. The second approach was a quantitative approach that would set a dollar cap on punitive damage awards similar to the maximum sentences in criminal law. This was also rejected because there are no “standard” torts or contract injuries that would allow the court to set an across the board maximum. 

The third approach, and the one the court adopted, was to use a ratio or maximum multiple. Again, referring to studies of previous punitive damage awards, the court determined that setting a maximum ratio of punitive damages to compensatory damages of 1:1 satisfied the goals of preventing unpredictable and excessive awards, retribution and deterring future misconduct. 

This approach was consistent with the Court’s decisions relating to its due process analysis in determining whether punitive damage awards rendered under state law meet constitutional muster. In State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408 (2003), the Court rejected a mathematical formula for determining whether a punitive damage award violated constitutional notions of due process, but did find that “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.” State Farm, 538 U.S. at 425. The Court went on to say in State Farm  that “[w]hen compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee.” 

The dissenting opinions focused on the Court’s decision to make maritime law rather than use traditional judicial review standards like “abuse-of-discretion” until Congress determines whether to impose specific rules on punitive damages in maritime cases.

 The ExxonMobil decision sends a clear signal that this Court is willing to limit punitive damages to accomplish the goals of fairness and predictability and may be willing to consider additional limits on punitive damage awards under the constitutional due process standards.

In the recent case of Cain v. Transocean Offshore USA, Inc., et al., No. 05-300963, the United States Court of Appeals for the Fifth Circuit affirmed its long standing decision that a watercraft under construction is not a “vessel in navigation” for purposes of the Jones Act.

The determination of whether a vessel is “in navigation” is a critical part of the “seaman status” analysis. Congress did not define the term “seaman” when it passed the Jones Act. Thus, it has been left to the Courts to interpret and define that term. The U.S. Supreme Court’s most recent holding defines a “seaman” as an “employee whose duties contribute to the function of a vessel or to the accomplishment of its mission, and who has connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” Chandris, Inc. v. Latsis, 515, U.S. 347, 354 (1995).  

The Fifth Circuit has long held that a vessel under construction is not a vessel. It reaffirmed this decision in Cain, in which, the Plaintiff was employed by Transocean and assigned to work aboard the M/V CAJUN EXPRESS a semi-submersible mobile offshore drilling rig under construction in Singapore. In 2000, the M/V CAJUN EXPRESS underwent sea trials and was moved from Singapore to Grand Isle, Louisiana  with tugboat assistance. Construction continued throughout the move. Upon arriving in Grand Isle, the M/V CAJUN EXPRESS was moored to a “floating shipyard” for completion of construction. In September 2000, while the M/V CAJUN EXPRESS was moored and under construction, the Plaintiff was (allegedly) injured when he walked into a low-hanging light fixture. Approximately eight months later (April/May 2001), the M/V CAJUN EXPRESS was completed and began drilling operations in the Gulf of Mexico.

The Plaintiff filed suit under the Jones Act alleging that his injuries were the result of Transocean’s negligence and the unseaworthiness of the M/V CAJUN EXPRESS.  Transocean moved for summary judgment arguing that the Plaintiff was not a Jones Act seaman at the time of his injury because the M/V CAJUN EXPRESS was not yet a vessel in navigation. There was no question that the M/V Cajun Express was still under construction at the time of Plaintiff’s injury. It lacked vital equipment to make it a fully functional and operational oil drilling rig. Indeed, no drilling contractor would have found the M/V CAJUN EXPRESS fit to drill in the Gulf of Mexico.   However, the District Court denied Transocean’s motion citing the U.S. Supreme Court’s decision in Stewart v. Dutra Construction Co., 543 US 41 (2005) as authority overruling the Fifth Circuit’s precedent concerning watercraft under construction. 

The Fifth Circuit reversed the District Court’s decision and held that Stewart did not extend the definition of “vessel” to include watercraft under construction. The Fifth Circuit reasoned that Stewart “examined an already completed structure in use for its intended purpose.” Steward did not concern what to do with ships and other structures under construction. Accordingly, the Fifth Circuit’s ruling that a vessel under construction is not a vessel “in navigation” remains “good law.”

The Transportation Worker Identification Credential (TWIC) is a new security measure established by Congress through the Maritime Transportation Security Act (MTSA) to ensure that individuals who pose a threat do not gain unescorted access to secure areas of the nation’s maritime transportation system. The TWIC is a tamper-resistant “smart card” containing an individual’s biometric (fingerprint) template to allow for a positive link between the card itself and the individual. The TWIC card is valid for five years.  

Workers who require unescorted access to secure areas of ports, vessels, and outer continental shelf facilities will require a TWIC card. This includes mariners holding Coast Guard issued credentials, non-credentialed mariners in a vessel crew, facility employees who work in a secure area, truckers bringing/picking up cargo at a facility, agents, port chaplains, longshoremen, drayage truckers, surveyors, chandlers, and other maritime professionals. Facility security officers and personnel responsible for security duties are also required to obtain a TWIC card. The category of “other marine professionals” would, in this author’s opinion, include attorneys and their experts who may enter a port or other secure area to inspect vessels. 

To obtain a TWIC card, an individual must provide biographic and biometric information (fingerprints), sit for a digital photograph, and successfully pass a security threat assessment (background check) conducted by the Transportation Safety Administration. The TWIC card costs $132.50, and the fee is payable by Visa or Master Card.   A worker applying for a TWIC card should pre-enroll by calling 1-866-DHS-TWIC (1-866-347-8492) or online at www.TSA.gov/TWIC. The pre-enrollment process allows a worker to submit the necessary biographic information before enrolling and speed along the process.

After completing the pre-enrollment process, the worker must schedule a fifteen minute appointment at an enrollment center. The appointment can be scheduled on-line. The worker will then meet with a TSA representative who will review the worker’s application data. The worker will then be fingerprinted and photographed. The worker must bring certain identifying documents (state driver’s license, social security card, passport, merchant mariner’s documents, etc.) to the interview. After completing the interview, the worker must pay for the card which will arrive in 6 – 8 weeks. The entire enrollment process is similar to obtaining a driver’s license at a state department of motor vehicles office. 

The Enrollment Center for the New Orleans area is located at 170 James Drive East, Suite 104, St. Rose, LA 70087. The Enrollment Center opens at 6:30 a.m.  The Baton Rouge Enrollment Center is located at the Safety Council for Louisiana Capital Area, 8180 Siegen Lane, Baton Rouge, LA 70810. Finally, the Houston Enrollment Center is located at the West Gulf Maritime Association, 1717 Turning Basin, Houston, TX 77029. 

If you have any questions regarding the TWIC card or the enrollment process, please do not hesitate to contact the author who recently completed the enrollment process and is waiting the 6-8 weeks for his card to arrive.

The United States Supreme Court recently held that a single standard of causation now applies when assessing the negligence of an employer and employee under FELA. Norfolk Southern R. Co. v. Timothy Sorrell, 127 S.Ct. 799, 166 L.Ed. 2d 638(1/10/07) (U.S. Reporter citation unavailable).  Because the Jones Act is modeled closely upon FELA’s statutory language, federal courts tend to apply the same analysis of negligence issues arising under both statutes. It appears that the Sorrell decision supports the conclusion of earlier maritime cases indicating that a Jones Act employer is held to the same standard of causation in a negligence analysis as his seaman-employee

The Gautreaux decision sets forth the similarities of causation standards for an employer’s negligence under both FELA and the Jones Act. However, the certainty of a uniform causation standard has been repeatedly questioned in the years following the Gautreaux decision. In 2007, the United States Supreme Court ended the uncertainty regarding differing causation standards for employee and employer negligence under FELA. Norfolk Southern R. Co. v. Timothy Sorrell, 127 S.Ct. 799, 166 L.Ed. 2d 638(1/10/07) (U.S. Reporter citation unavailable). Timothy Sorrell, an employee of Norfolk Southern Railway Company sued his employer for injuries incurred while driving a dump truck between railroad crossings. Sorrell claimed that another Norfolk truck forced him off the road and caused him to tip over into a ditch. 

Sorrell filed suit under FELA alleging that his employer failed to provide him with a reasonably safe place to work and that its negligence caused his injuries. Norfolk argued that Sorrell’s own negligence caused the incident. The trial Court instructed the jury to find the employee negligent only if the employee’s negligence directly contributed to cause his injury. In contrast, the Court instructed the jury to find the railroad at fault if its negligence contributed in whole or in part to the employee’s injury. Norfolk objected to the disparity of the instructions, but the trial court overruled the objection. The jury returned a verdict in favor of Sorrell. Norfolk argued on appeal that the same causation standard should apply to the negligence of the employer and the employee. The appellate court affirmed the lower court’s ruling, rejecting Norfolk’s contention. After the Missouri Supreme Court denied discretionary review, Norfolk sought certiorari with the United States Supreme Court, which was granted.

Faced with the issue of whether, under FELA, causation standards for the negligence of an employee differed from the causation standard for the employer’s negligence, the Supreme Court held that a single standard of causation applies to both parties. In its holding the Supreme Court agreed with Norfolk that FELA not only mandates a single standard of causation, but stated that it is far simpler for a jury to conduct a negligence analysis using a single standard. Although the Supreme Court determined that the applicable duty standard was that of "ordinary prudence," in line with the 5th Circuit's decision in Gautreaux, it declined to provide the specific causation standard for the negligence analysis, emphasizing that its task was merely to decide that the same standard of causation applied to both employer and employee.

The U.S. Fifth Circuit Court of Appeals has unequivocally held that a shipowner-employer may pursue a claim for reimbursement of costs for damage to property against its negligent seaman-employee. Withhart v. Otto Candies, 431 F.3d 840 (5^th Cir. 2005). The seaman-employee in Witthart was a mate, or relief captain, who allegedly left the wheel house to attend to personal business while in command of the vessel. During his absence, the vessel, navigating through congested waters with no captain at the helm, collided with and damaged another vessel. 

 The Fifth Circuit recognized that no statutory provision in the Federal Employers’ Liability Act (“FELA”), or in the Jones Act, prohibits a shipowner-employer from pursuing a claim against its negligent seaman-employee for property damage. The Court addressed the fact that Congress did not specifically enumerate the rights of seamen in the Jones Act, but extended to them the same rights granted to railway employees under FELA. The Court indicated that every other federal court to address this issue has concluded that FELA does not deprive an employer of its common law right to sue its employees for property damage caused by the employees. 

The Court acknowledged that the purpose of the Jones Act is to “benefit and protect seamen by enlarging, not narrowing, the remedies available to them,” but added that, “permitting a shipowner-employer to sue its seamen-employee for property damage arising out of the seaman-employee’s negligence will not narrow the remedies available to seamen-employees under the Jones Act.” Further, the Court pronounced that the difficult working conditions prong of the seaman’s due care analysis does not exist to shield seamen from liability for their negligence merely because a seaman may work under difficult conditions.

The issue of recovery of non-pecuniary damages [1] by a Jones Act seaman is one that often confronts both the seaman’s employer and non-employer third-parties from whom damages are sought. No case sets forth a more succinct resolution of this issue than Scarborough v. ClemcoInd., 391 F.3d 660 (5^th Cir. 2004). Under the Fifth Circuit’s holding in Scarborough and its progeny, both Jones Act employers and non-employer third-parties sued by either a seaman or his survivors are able to rest easy knowing that they will not have to pay non-pecuniary damages – at least for now considering that no case has given negative treatment to the Scarborough decision. 

The United States Supreme Court, interpreting the Jones Act/FELA survival provision limiting a deceased seaman’s recovery to losses suffered during the decedent’s lifetime, unequivocally holds that representatives of a seaman’s estate may not recover non-pecuniary losses.  Miles v. APEX Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed. 2d 275 (1990). The Scarboroughcourt’s decision upholds the uniformity principal set forth in Miles by concluding that neither a seaman nor his survivors may recover non-pecuniary damages from either the seaman’s employer or non-employer third-party.

Critics of the Scarborough decision argue that it stepped outside the lines of existing jurisprudential authority by expanding the Miles opinion to address not only Jones Act employers, but also non-employer third-parties. However, as the Scarborough Court stated in its decision, the Miles opinion focuses on the uniformity of damages recoverable by a Jones Act seaman and his survivors, not on the uniformity of the damages to which various defendants might be subjected. Further, the Scarborough decision cites to Davis v. Bender Shipbuilding & Repair Co., 27 F.3d 426, 430 (9^th Cir. 1994), in which the 9^th Circuit states that nothing in Miles’ reasoning suggests that the decision turned upon the identity of the defendant. In fact, not all defendants in Miles were Jones Act employers. Thus, the Fifth Circuit has, at least for now, plainly resolved the issue in favor of the Jones Act employer and non-employer third-parties by limiting recovery of Jones Act seamen and their survivors to pecuniary damages.

[1] Non-pecuniary losses include loss of society, loss of consortium, loss of companionship, loss of love and affection, loss of comfort, grief and mental anguish, and pecuniary damages. Another element of damages that is not recoverable by the estate of a deceased Jones Act seaman is loss of future earnings.  Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed. 275 (1990); In the Matter of Waterman SS Corp., 780 F.Supp. 1093 (E.D. La. 1992). Pecuniary losses include loss of support from past and future earnings (that portion of the decedent’s wages used to provide support for his living family members), loss of value of household services, loss of nurture and guidance to minor children, and pre-death pain and suffering, if any. Decenteno v. Gulf Fleet Crews, Inc., 798 F.2d 138, 1987 AMC 2462 (5^th Cir. 1986). See also, Ivy v. Security Barge Lines, Inc., 606 F.2d 524 (5^th Cir. 1979) (en banc).