Tod Everage

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It took one of the newly-minted judges on the Eastern District bench to finally adopt a working definition for the types of “perils of the sea” that Jones Act seaman are exposed to when analyzing the second prong of the Chandris, Inc. v. Latsis, 515 U.S. 346 (1995) test. That test requires the plaintiff, claiming to be a Jones Act seaman, to “demonstrate a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and its nature.” Id. at 368. The two prongs of Chandris are: (1) the plaintiff must show that his duties contribute to the function of the vessel or the accomplishment of its mission, and (2) the plaintiff must demonstrate a connection to a vessel (or an identifiable group of vessels) in navigation.

In Duet v. Am. Comm’l Lines, LLC, No. 12-3025, 2013 WL 1682988 (E.D. La. April 17, 2013), Judge Jane Triche Milazzo, in denying remand, found that a plaintiff who was injured while working aboard the defendant’s vessel was not a Jones Act seaman. Duet, a mechanic, was assigned by his employer to work at a barge repair facility owned and operated by ACL Transportation Services, LLC. The facility consisted of “a number of barges tied together and moored to the riverbank in order to create a stationary work platform (the “floating dock”),” that extended 1-2 miles along the river. The barges serviced by the facility remain in the river but are moored to the floating dock. ACL also owns and operates several smaller push boats to help move the barges in and out of the facility, as well as shift the barges within the floating dock itself. Duet was not assigned to any specific vessel, but performed his mechanic duties on barges and push boats alike. He only boarded the push boats as necessary to complete his work on those boats or to be transported to the more remote locations within the facility that required his work. However, when necessary to reposition barges at the floating dock to facilitate repairs, he would occasionally work as a deckhand, and on two occasions had left the facility by boat to assist in sea trials and help save a sinking vessel. Duet was injured while working aboard one of the vessels and sued several defendants and his employer, alleging to be a Jones Act seaman.Continue Reading Eastern District of Louisiana Adopts Definition for “Perils of the Sea” for Seaman Status Analysis

Recently the U.S. Fifth Circuit rendered an opinion in Barker v. Hercules Offshore, Inc., et al., 713 F.3d 208 (5th Cir. 2013), that touched on several areas of substantive and procedural aspects of marine litigation that all maritime lawyers should be aware of.  For example, the Court provided interesting commentary on the maritime nexus prong for cases involving injuries on MODUs and the availability of bystander claims under Maritime law.  However, this article focuses on the Fifth Circuit’s holding that “[m]aritime law, when it applies under OCSLA, displaces federal law only as to the substantive law of decision and has no effect on the removal of an OCSLA action,” and thus, OCSLA’s own federal question jurisdiction is sufficient to remove such cases without another independent basis for subject matter jurisdiction, regardless of the citizenship of the parties.  After twice declining to address this issue, leaving district courts to render conflicting decisions, see Hufnagel v. Omega Servs. Indus., Inc., 182 F.3d 340 (5th Cir. 1999); Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996), the Fifth Circuit finally decided to speak.

Traditionally, lawsuits filed in state court, to which maritime law provides the substantive rule of decision, were not removable due to the “saving-to-suitors” clause governing admiralty claims without another jurisdictional grant, such as diversity.  The issue on appeal was “whether maritime law, when it provides the substantive rule of decision under OCSLA, abrogates OCSLA’s grant of federal question jurisdiction and prohibits removal of an action filed in state court absent complete diversity.”  Barker, 713 F.3d at 219.  With an absence of guidance on the issue, district courts had “fallen on both sides of this issue.”  In reaching its conclusion, the Court chose to follow the line of cases that recognized that the determination of the substantive law of decision is a separate and distinct inquiry from subject matter jurisdiction and removal.  See, e.g., Broussard v. John E. Graham & Sons, 798 F.Supp. 370, 373 (M.D. La. 1992); Fallon v. Oxy USA, Inc., No. 2049, 2000 WL 1285397, at *3 (E.D. La. Sept. 12, 2000).Continue Reading U.S. 5th Circuit Holds that OCSLA Removal is Proper in Maritime Cases

The U.S. Fifth Circuit recently issued its ruling in Beech v. Hercules Drilling Co., No. 11-30415, 2012 WL 3324283 (5th Cir. Aug. 14, 2012), clarifying its standard for finding an employer vicariously liable for the actions of its employees under the Jones Act. In doing so, the Fifth Circuit reversed a ruling by Judge Carl Barbier of the U.S. District Court for the Eastern District of Louisiana which found that the co-employee of a Jones Act plaintiff was acting in the course and scope of his employment when he accidentally shot and killed the plaintiff on the Jones Act employer’s jack-up rig.
Continue Reading Fifth Circuit Clarifies and Reiterates its Standard for “Course and Scope of Employment” Under Jones Act