Admiralty and Maritime


A. Introduction to Punitive Damages

Pecuniary damages are awards designed to restore “material loss which is susceptible of pecuniary valuation.” Michigan Central Railroad. Co. v. Vreeland, 227 U.S. 59, 71, 33 S.Ct. 192, 57, L.Ed. 417 (1913). Punitive or exemplary damages do not compensate for a loss; instead, they are imposed to punish the

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

Pursuant to 28 U.S.C. § 1333, federal courts have original subject matter jurisdiction over general maritime law claims. However, 28 U.S.C. § 1333(1), commonly known as the “savings to suitors clause,” preserves a plaintiff’s right to instead file a general maritime law action in state court. Until recently, a defendant sued in state court for a general maritime law claim could not remove the case to federal court unless an independent basis of subject matter jurisdiction existed (such as diversity). See Tennessee Gas Pipeline v. Houston Cas. Ins. Co., 87 F. 3d 150 (5th Cir. 1996). As explained below, several district courts have concluded that recent revisions to the removal statute, 28 U.S.C. § 1441, have changed this rule and now allow general maritime law claims to be removed to federal court without an independent basis of subject matter jurisdiction.

The basis for the U.S. Fifth Circuit’s prohibition against removal of a general maritime law claim unless an alternative basis of subject matter existed was the provision contained in the then-current version of 28 U.S.C. § 1441(b) which stated that “any civil action of which the district courts have original jurisdiction founded on a claim or right under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties.” The U.S. Fifth Circuit concluded that this portion of the then-current version of 28 U.S.C. § 1441(b) – combined with the U.S. Supreme Court’s holding in Romero v. International Terminal Operating Co., 358 U.S. 354 (1959), that general maritime law claims do not “arise under the Constitution, laws, or treaties of the United States” – precluded the removal of general maritime law claims unless an independent basis of subject matter jurisdiction existed.

Continue Reading Because of Revisions to 28 U.S.C. Section 1441, Several District Courts Have Concluded That General Maritime Law Claims Can Be Removed to Federal Court Without an Independent Basis of Subject Matter Jurisdiction

In its most recent decision regarding Longshore and Harbor Workers’ Compensation Act (LHWCA) coverage, namely New Orleans Depot Services, Inc. v. Director, Office of Workers’ Compensation Programs, 718 F.3d 384 (5th Cir. 2013) (en banc), the United States Fifth Circuit Court of Appeals defined “adjoining” as used in the LHWCA to mean “bordering on or contiguous with navigable waters.” In doing so, the Court expressly overruled its own precedent found in Texports Stevedore Co. v. Winchester, 632 F.2d 504 (5th Cir. 1980) (en banc), and the Court adopted the interpretation of the statutory language proffered by the Fourth Circuit Court of Appeals in Sidwell v. Express Container Services, Inc., 71 F.3d 1134 (4th Cir. 1995).

Continue Reading The Fifth Circuit’s Latest Longshore and Harbor Workers’ Compensation Ruling

Traditionally, a party seeking injunctive relief from the courts bears the burden of proving four elements: (1) a substantial likelihood of success on the merits of their claims; (2) a substantial threat that failure to grant the injunction will result in irreparable injury; (3) the threatened injury outweighs any damage that the injunction will cause to the adverse party; and (4) the injunction will not have an adverse effect on the public interest.  See Johnson Controls, Inc. v. Guidry, 724 F. Supp. 2d 612 (W.D. La. July 12, 2010); Mississippi Power & Light v. United Gas Pipeline Co., 760 F. 2d 618 (5th Cir. 1985).  Due to the first element – a substantial likelihood of success on the merits – a court that is asked to rule upon a request for injunctive relief in effect pre-judges the entire case.  Although in most cases this is not problematic (and can potentially lead to the matter being resolved without the need for a full trial on the merits), the presence of a mandatory arbitration clause in the parties’ contract can lead to problems.

Continue Reading If a Contract Includes a Mandatory Arbitration Clause, the Parties Should be Aware that Injunctive Relief from the Courts can be Available Without the Necessity of Satisfying the Traditional Four-Element Test

Floating oil and gas production facilities, such as the Single Point Anchor Reservoir (“SPAR”), are designed to operate in deep water environments where construction of a traditional fixed platform is not feasible. Unlike a fixed platform, floating production facilities are constructed on a floating hull.  Fields v. Pool Offshore, Inc., 182 F.3d 353 (5th Cir. 1999).  The hull is typically moored to the seabed with wire or synthetic rope attached to suction piles and/or anchors.  The structures are typically capable of limited movement by manipulation of mooring lines.  Although it is typically a complicated, expensive, and time-consuming endeavor, floating production facilities are capable of being detached from the seabed and towed from one location to another.

The 2005 U.S. Supreme Court decision in Stewart v Dutra Construction Company, 543 U.S. 481 (2005) caused many to question whether floating production facilities (traditionally not considered a vessel) may qualify as a vessel under maritime law.  Due to certain language in the decision, Stewart provided what some consider a more expansive definition of which structures may qualify as a “vessel” for purposes of maritime law.   The Stewart Court analyzed the vessel status of the Super Scoop dredge, a floating platform with a bucket that removes silt from the ocean floor and dumps it onto adjacent scows. The Super Scoop is in some ways similar to a SPAR because it has limited means of self-propulsion, but can navigate short distances by manipulating its anchors and cables.  In Stewart, the Court concluded that the Super Scoop’s practical capability of transporting equipment and people over water rendered it a vessel. 

Continue Reading Vessel Status of Floating Production Facilities After Lozeman v. Riviera Beach

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