Admiralty and Maritime

By: R. Chauvin Kean

Generally, a contract is the law between parties, which has long been the position of the U.S. Supreme Court. However, as most well know, this principle is not without limitation. On January 15, 2019, in New Prime v. Oliveira, the Court unanimously held that disputes concerning contracts of employment involving transportation workers engaged in foreign or interstate commerce cannot be compelled to arbitrate. 586 U.S. —, 4, 2019 WL 189342, at * — (2019). Also, despite strong, express language in an agreement ordering the parties to arbitrate any of their disputes, a court – not the arbitrator – is the appropriate forum to review and decide the applicability of the Arbitration Act to any contract.

The Federal Arbitration Act declares that an express arbitration clause in a maritime transaction involving commerce shall be valid and enforceable provided the Act does not further limit its application. 9 U.S.C. §§ 1 – 2 (West 2019). However, §1 declares that “nothing contained [in this Act] shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1 (West 2019). Specifically, the Court in New Prime resolved a longstanding issue of whether a “contract of employment” concerned any type of contract for work (such as one involving independent contractors) or only those contracts between an employee – employer. The Supreme Court affirmed the First Circuit’s ruling that in 1925, at the time of the Act’s inception, “contract of employment” was not a term of art; it was a phrase used to describe “agreements to perform work” and was not limited to agreements only between employees and employers as a modern jurist might first think.

New Prime provides two important lessons: first, no contract provision – however ironclad – is immune from court oversight and interpretation. Parties to a contract may attempt to limit their litigation exposure, but cannot be immune from all possibilities, especially when they try to contract around statutes. New Prime is a great example of limited application of a broad federal statute, which, even though is favored by the courts, is limited by Congress. Second, New Prime provides greater clarity in the realm of contracts for work relating to transportation workers. Any “contract for employment” concerning workers engaged in foreign or interstate commerce cannot be contractually compelled into arbitrations regardless of contractual provisions that state otherwise. New Prime, 586 U.S. at 15. It’s also worth noting that the type of workers engaged in foreign or interstate commerce has vastly expanded over time as our society grows further connected. Thus, companies should be mindful that even though contracts of employment might attempt to limit litigation through arbitration provisions, a court may not be inclined to order the parties into arbitration based on New Prime and the employee’s/independent contractor’s scope of work.

This is a horizontal, color, royalty free stock photograph shot with a Nikon D800 DSLR camera. The sky at dusk reflects pastel colors on the tranquil water's surface. Lilly pads float on this wetland landscape. Trees fill the background.

By Daniel Stanton

As fundamental as the concept of jurisdiction might be, it is often assumed to exist and therefore glazed over in a plaintiff’s petition or a defendant’s notice of removal. But jurisdiction is one of the foundational elements upon which our judicial systems, both state and federal, are built. Thus, it is a necessary element of every case that has ever been – whether it is addressed in a written opinion or not. Often bound up with the issue of jurisdiction is the thornier issue of the substantive law applicable to a case. And, the law that prevails may be the difference between the life and death of a case. Recently, in the case of Frickey v. Shell Pipeline Company, L.P., No. 15-4884 (Nov. 14, 2016), the Eastern District of Louisiana reminded us of the importance of a court’s jurisdictional basis and law that accompanies that determination.

Plaintiff in this case was a commercial crabber who spent much of his life plying the waters of South Louisiana for sport and trade. On the night of March 21, 2014, Plaintiff was piloting his 16-foot mud boat on a frogging outing with a friend. At approximately 8:30 p.m. that evening while traveling through the Avondale Ring Canal (aka “Marcello’s Canal”) in search of his quarry, Plaintiff’s boat struck a submerged pipeline belonging to Shell. The pipeline was marked by an unlit, but large and reflective sign warning of the presence of a submerged petroleum pipeline. Plaintiff was allegedly injured during the allision and subsequently filed suit on September 30, 2015, in the EDLA invoking the court’s admiralty and diversity jurisdiction.

The issue of the court’s jurisdiction came into question on a motion for summary judgment filed by Shell seeking the dismissal of Plaintiff’s suit for lack of jurisdiction. And at first glance, admiralty jurisdiction may have seemed obvious: a fisherman, hurt on a vessel while traveling over water. But the question of the existence of admiralty jurisdiction is not so easily determined. Starting at the beginning, the court explained that its admiralty jurisdiction flows forth from Article III of the U.S. Constitution in which federal district courts were vested with jurisdiction over cases of “admiralty or maritime jurisdiction.” And quoting the U.S. Supreme Court, the primary purpose of federal admiralty jurisdiction is to “protect commercial shipping.” With this goal in mind, a two-part test for determining whether admiralty jurisdiction exists over a tort action has been developed, but in its evaluation of Plaintiff’s claim, the district court did not make it past the first requirement: the tort must occur on navigable waters or be caused by a vessel on navigable waters.

Considering the Avondale Ring Canal, the court found the canal to not be a navigable waterway. To be a navigable waterway, the waterway must be used or must be capable of being used in its ordinary condition as a “highway for commerce.” An artificial canal can be a navigable water body if it connects ports and places in different states as part of a “highway of commerce.” But the courts of the Eastern District have previously found that drainage ditches that provide outlets for rainwater are not navigable waterways. As can be seen in the repetitive use of the word by the court, navigability is “inexorably” tied to being susceptible to use for commercial purposes. The evidence produced in this case demonstrated that the Avondale Ring Canal was a manmade drainage canal on private property. It had been constructed for the sole purpose of water drainage and flood protection. And of pivotal importance, as a result of its shallow depth and debris littered bed, it had no capacity to support commerce. Plaintiff produced no evidence that the Avondale Ring Canal had ever been used to support commerce or had ever been determined to be a “navigable” waterway by any government entity. Plaintiff simply failed to produce any evidence that would support the contention that the Avondale Ring Canal did support or was susceptible of supporting commerce. Because the Plaintiff’s alleged injury did not occur on a navigable waterway, the court did not possess admiralty jurisdiction and could not apply substantive maritime law.

In addition to admiralty jurisdiction, Plaintiff also invoked the court’s diversity jurisdiction because all of the parties were citizens of different states. But with diversity jurisdiction comes the application of the host state’s prescriptive periods. And in Louisiana, torts have a one-year prescriptive period as opposed to the three-year prescriptive period for maritime personal injury actions. Plaintiff’s suit was filed more than a year after his alleged injury. Therefore, the suit was time barred under Louisiana law, and the court, after finding that admiralty jurisdiction did not exist and therefore maritime law did not apply, dismissed Plaintiff’s case in its entirety.

As the plaintiff in this case learned, jurisdiction is a pivotally-important element of any case. Not only can it determine which court can hear a plaintiff’s case, but in some instances it may also dictate the law applicable to the plaintiff’s claims. And, especially in cases of personal injuries occurring on the often shallow waters of South Louisiana, it may determine whether a plaintiff has a case at all.

storm

By Michael J. O’Brien

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 wrongdoer and “deter by virtue of the gravity of the offense.” [1]  Molzof v. U.S., 502 U.S. 301, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). The availability of punitive damages as an avenue of potential recovery can drastically alter a Jones Act personal injury case.

For example, if punitive damages are “on the table,” one can expect that counsel for the injured seaman will insert a demand for punitive damages into the lawsuit and, thereafter, consistently beat the drum throughout the litigation that punitive damages are warranted. This, in turn, inquires defense counsel to change its evaluation of the case and recommend higher reserves to its clients to cover the potential for an award of punitive damages. The availability of punitive damages can also affect settlement negotiations when counsel for the injured seaman demands a higher settlement amount for even the most basic slip and fall by alleging liability for punitive damages.

The issue of whether punitive damages are available to the Jones Act seaman, was, until recently, a well settled question—they are not available. The calm waters of punitive damages were stirred with the 2009 decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009),where the U.S. Supreme Court firmly established that punitive damages were available to an injured Jones Act seaman for the willful and wanton failure of the ship-owner to pay maintenance and cure.

Since Townsend, the Plaintiffs’ bar has been attempting to expand the availability of punitive damages to an injured seaman’s negligence and unseaworthiness claims. To this end, the Plaintiffs’ bar proclaimed a partial victory on October 2, 2013, when Judge Higginson, of the U.S. Fifth Circuit held that punitive damages were available to seaman as a remedy for the general maritime law claim of unseaworthiness. McBride v. Estis Well Service, 731 F.3d 505 (5th Cir. 2013). However, eleven months later, the Fifth Circuit, sitting en banc, reversed the original panel’s decision and held that punitive damages are not recoverable for either negligence or unseaworthiness. Let us now examine how we have arrived at this point.

B. The High Point—In re Merry Shipping

If the availability of punitive damages to an injured seaman can be imagined as a wave, the peak of that wave would be In re Merry Shipping, Inc., 650 F.2d 622 (5th Cir. Unit B 1981). In Merry Shipping, it was firmly established that punitive damages were recoverable under the General Maritime Law when the shipowner had violated the duty to furnish and maintain a seaworthy vessel. The Merry Shipping Court acknowledged that the shipowner’s duty stemmed from the recognition of “the hazards of marine service that unseaworthiness places on the men who perform it and their helplessness to ward off such perils.” As such, the theory was that punitive damages would serve to deter and punish owners whose reckless acts increased the hazards of marine service. It must also be noted at this juncture that punitive damages were also available at this time for the willful and wanton failure to pay maintenance and cure.

C. The Wave Falls—Miles v. Apex Marine Corp.

Nine years later, the punitive damage wave began to fall with the Fifth Circuit’s opinion in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990). The Miles Court noted that in 1920, Congress enacted the Jones Act, 46 U.S.C. § 30104, and the Act extended to seamen the same negligence remedy for damages afforded to railroad workers under the Federal Employers’ Liability Act (“FELA”). FELA only allowed for the recovery of pecuniary damages. Accordingly, the Miles Court reasoned that Jones Act claimants’ remedies were limited to pecuniary losses alone. As discussed above, punitive damages are separate and apart from pecuniary damages. After Miles, punitive damages would be unavailable to the Jones Act seaman in a Jones Act negligence action and an unseaworthiness action. Merry Shipping had been effectively overruled. [2]

D. The Wave Bottoms Out—Guevera v. Maritime Overseas Corp.

The low point of the punitive damage wave was marked by the Fifth Circuit’s decision in Guevera v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995). Guevera was a maintenance and cure case that, for a time, eliminated the availability of punitive damages for the willful and wanton failure to pay maintenance and cure. Citing the reasoning of Miles, the Guevera court held that the punitive damages were not available for failure to pay maintenance and cure, even if willfulness was demonstrated. Guevera, 59 F.36 at 1504. Thus, as of Guevera, punitive damages were simply not an available avenue of recovery for the Jones Act Seaman in an action for either Jones Act negligence, unseaworthiness, or maintenance and cure. Punitive damages had effectively disappeared from maritime law. This was to be the case for the next 14 years.

E. The Wave Rises—Atlantic Sounding v. Townsend

The punitive damage wave began surging upward again with the U.S. Supreme Court’s decision in Atlantic Sounding Co. v. Townsend, 557 U.S. 404, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009). The Townsend Court revisited the issue of a seaman’s claim for punitive damages for the willful failure to pay maintenance and cure. In an opinion hailed by injured workers (and their counsel), everywhere, the Townsend Court abrogated Guevera and ruled that a seaman may seek punitive damages associated with a claim for maintenance and cure. In reaching its ultimate decision, the Townsend Court acknowledged that punitive damages had long been available at common law, that the common law tradition of punitive damages extended to claims arising out of maritime law, and that nothing in maritime law undermined the applicability of this general rule in the maintenance and cure context. Furthermore, nothing in the Jones Act eliminated pre-existing remedies, such as punitive damages for maintenance and cure available to seaman.

As is often the case after U.S. Supreme Court decisions, the impact of Townsend differed greatly depending on which side of the “v.” a party found itself. Injured workers read Townsend to either overrule or severely undermine Miles. Employers and ship owners read Townsend to carefully distinguish its facts from Miles, and more importantly, reaffirm that Miles remained “good law.” To be sure, Townsend began to “toss” the once peaceful waters of punitive damages. Smelling blood in the water, counsel for injured workers began routinely adding claims for punitive damages to their Jones Act negligence, unseaworthiness, and maintenance and cure claims. It did not matter if the case was the most basic unwitnessed slip and fall or the most serious case of loss of life and limb—each case came with a punitive damage claim. With the above context in mind, we now turn to McBride which, for a short time, brought punitive damages back to the high point of Merry Shipping.

F. Storm Tossing the Waters — McBride v. Estis Well Service, LLC

i. The Facts

On March 9, 2011, the barge Estis Rig 23 was operating in Bayou Sorrell, a navigable waterway in the State of Louisiana. The Estis 23 was a keyway barge containing a truck mounted drilling rig. There is no way to “sugarcoat” the fact that on March 9, the day of the tragedy, the vessel was in incredibly poor condition. The deck contained numerous holes covered with sheets of plywood. The hull contained several holes that allowed the influx of water causing the barge to list to the port side. The crew inserted rags and pieces of wood into the holes in the hull to slow the sinking. Each morning, when the crew arrived at the barge, they had to pump water out of the barge’s hull to level it before they could start working.

On top of the issues related to the daily sinking of the barge, the truck needed to be attached to the barge by at least 5 cables and the derrick should have been attached to the barge with a minimum of 4 cables. However, the truck was only connected to the barge by a single cable and no cables whatsoever attached the derrick to the barge.

On March 8, the Estis 23’s crew pulled and racked vertically approximately 12,000 feet of pipe weighing approximately 90,000 lbs. Overnight, the barge again flooded and listed to the port side. The racked pipe fell towards the port side of the barge causing the monkeycboard to twist. [3]  The pipe hung outside of the derrick with the twisted monkey board as the only thing preventing the pipe from toppling over.

When the Estis 23 crew returned on March 9 and saw the situation first hand, they conducted a safety meeting and decided that the safest possible method was to use a crane and additional barge to remove the pipe. Specifically, the crane would hold the top of the derrick to prevent it from falling over while the crew moved the pipe onto a second barge. A request was made for a crane and second barge. This request was denied by the home office due to time and cost concerns. Instead, the crew was ordered by the onsite supervisor to straighten the monkey board and pipe manually using ratchets and cables. However, the crew was only able to shift the pipe and monkey board a few inches.

At this point, the crew again requested a crane and additional barge to perform this job. This second request was again denied by Estis’s president and owner. The onsite supervisor instructed his crew to find more cables. The Estis 23’s crew was sent to the nearby Estis Rig 68 to retrieve additional cables and additional man power in the form of Skye Sonnier – an Estis deckhand assigned to Rig 68.

The crew connected the additional cables to the monkey board and pipe. While using the ratchets, the crew heard several loud pops. The derrick and all of the pipes began falling. The crew ran for their lives in an attempt to evacuate the barge. Prior to the arrival of Mr. Sonnier, the Estis 23’s crew had discussed an evacuation plan to be implemented at the first sign of trouble. As the derrick and pipe began falling, the rig 23’s crew implemented the evacuation plan.

Unfortunately, Mr. Sonnier was never advised of the evacuation plan. Sonnier evacuated in the wrong direction. He became trapped between two tanks, and he was struck by the side of the truck. He was pinned between the truck and one of the tanks. Sadly, Mr. Sonnier died while pinned beneath the weight of the truck. His injuries were severe, and they included compressive blunt force injuries of the thorax, multiple rib fractures, punctured lungs due to rib chards, and a ruptured heart.

The facts of this matter are chilling. The accident was entirely preventable. As such, it is easy to see how the McBride case would become the battleground to revisit the prohibition on punitive damages in both Jones Act negligence and unseaworthiness cases.

 ii. Round 1 –  McBride v. Estis Well Service, L.L.C., 872 F. Supp. 2d 511 (W.D. La. 2012)

The McBride Plaintiffs asserted claims for punitive damages due to Estis’s alleged gross, willful, wanton, and/or reckless conduct that allegedly constituted the callous disregard of or indifference to, the safety of the Estis crewmembers. Estis filed a Motion for Summary Judgment to dismiss the punitive damages claims.

Estis claimed that the Jones Act only permitted recovery of pecuniary losses whether for personal injury or wrongful death. Since punitive damages are not pecuniary in nature, Estis argued that punitive damages could not be recovered on Jones Act claims. Further, under the reasoning of Miles v. Apex Marine Corp, the McBride Plaintiffs could not recover punitive damages because their unseaworthiness claims overlap their Jones Act claims. Hence, the punitive damage claims should be dismissed.

In opposition, the McBride Plaintiffs argued that Townsend left open the question whether punitive damages were available under the Jones Act. The Plaintiffs also contended that the U.S. Supreme Court’s ruling in Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) suggested that they could recover punitive damages via their General Maritime Law claims. Finally, they contended that the Supreme Court’s ruling in Townsend, which abrogated Guevara v. Maritime Overseas Corp., 59 F.3d 1496 (5th Cir. 1995), reinstated the holding of Merry Shipping as the controlling precedent in the U.S. Fifth Circuit. As discussed above Merry Shipping stood for the proposition that punitive damages were in fact available to a Jones Act Seaman.

On May 16, 2012, Magistrate Judge Hanna of the United States District Court for the Western District of Louisiana – Lafayette Division – issued his memorandum ruling addressing whether punitive damages were available to a seaman under the Jones Act and/or General Maritime Law who was killed or injured in Louisiana territorial waters after Townsend. In his 22 page opinion, Magistrate Judge Hanna ultimately reasoned that nothing in Townsend made punitive damages available to the McBride Plaintiffs. He found that the reasoning of Miles was to promote uniformity between the statutes and the General Maritime Law. DOHSA did not allow for non-pecuniary damages. The Jones Act did not allow for non-pecuniary damages based on the jurisprudential interpretation of FELA. In promoting uniformity, the Supreme Court decided that the same rule would apply to the General Maritime Law that was applicable to a wrongful death/survival action under the Jones Act, and nothing in the holding of Townsend altered that result.

The McBride Plaintiffs moved to certify the Judgment for an immediate interlocutory appeal. Judge Hanna granted this motion as the issues presented were “the subject of national debate with no clear consensus.”

iii. Round 2 – McBride v. Estis Well Service, LLC 731 F.3d 505 (5th Cir. 2013)

The Fifth Circuit accepted Plaintiffs’ interlocutory appeal. Briefs were filed, and oral argument was heard. A decision was published on October 2, 2013. Judge Higginson, writing for the three person panel, addressed the “narrow issue” of whether a seaman may recover punitive damages for his employer’s willful and wanton breach of the General Maritime Law duty to provide a seaworthy vessel.

In reversing Judge Hanna, the three judge panel concluded that punitive damages indeed remained available to seaman as a remedy for the General Maritime Law claim of unseaworthiness. Judge Higginson relied heavily on Townsend and reaffirmed the Fifth Circuit’s holding in Merry Shipping.

Recognizing the impact of Townsend, Judge Higginson advised that momentum in the direction towards the disappearance of punitive damages from maritime law had been “sea-tossed” with the abrogation of Guevara and the restored availability of punitive damages for maintenance and cure claims under General Maritime Law. Effectively, the panel claimed that Townsend established a straight-forward rule: if a General Maritime Law cause of action and remedy were established before the passage of the Jones Act, and the Jones Act did not address that cause of action or remedy, then that remedy remains available under the cause of action unless and until Congress intercedes. It cannot be disputed that the cause of action for unseaworthiness and remedy of punitive damages were both established long before the passage of the Jones Act. Further, the Jones Act did not address either unseaworthiness or its remedies. Thus, using Townsend’s “straight forward rule,” punitive damages are available for unseaworthiness. The Court itself acknowledged that it was “less clear” whether punitive damages were awarded for unseaworthiness prior to the passage of the Jones Act. Yet, the point is essentially moot as the panel held that its decision would be unchanged.

iv. Round 3 – McBride v. Estis Well Service, LLC 768 F.3d 382 (5th Cir. 2014)

Estis filed a Petition for Rehearing En Banc. On February 24, 2014, the Fifth Circuit granted the requested en banc rehearing based on the majority vote of the active judges. Keeping in mind that the granting of an en banc rehearing is appropriate only in “extraordinary” circumstances, it is obvious that the majority of the active Fifth Circuit judges felt the issue of punitive damages in maritime law was an issue of great importance. In addition to the requisite briefs of the parties, industry groups, including the Offshore Marine Service Association, the American Waterways Operations and the International Association of Drilling Contractors, filed amicus briefs to reverse the decision of the three judge panel.

Oral argument was conducted on May 14, 2014, and the Court issued its opinion on September 25, 2014. In a close 9-6 vote, the Fifth Circuit held that seamen cannot recover punitive damages for unseaworthiness. The reasoning of the majority opinion was simple yet effective. Writing for the majority, Judge Davis confirmed that Townsend did not alter the holding in Miles. Indeed, the majority opinion specifically noted that the Supreme Court in Townsend reaffirmed the holding in Miles. Miles, which “remains sound,” limited Jones Act seamen to pecuniary damages in negligence and unseaworthiness claims. Punitive damages are non-pecuniary; as such, they are not available. Thus, at present, the only punitive damages available to a seaman are for the willful and wanton non-payment of maintenance and cure.

v.  Final Round – McBride v. Estis Well Service, LLC

The “final round” in any lawsuit is whether the case will be heard and ultimately decided by the United States Supreme Court. The “word on the street” is that the McBride Plaintiffs will petition the U.S. Supreme Court for a Writ of Certiorari. Thus, the bell signaling the final round in McBride is about to be rung.

CONCLUSION

The wave of punitive damages has risen and fallen over the years. Since the peak of Merry Shipping, the availability of punitive damages to the Jones Act seaman had fallen so far that punitive damages were simply not available to the injured seaman after Guavera. Townsend signaled a surge in the wave. Yet, the wave has now crested, at least in the Fifth Circuit, with the decision in McBride. It will be interesting to monitor the other circuits and see if they will fall in line with the McBride decision. Only time, and perhaps a few crafty arguments advanced by counsel for injured seamen, will determine whether the punitive damage wave will rise again.

___________________________

[1]  There is no discernable difference between punitive and exemplary damages.

[2]  Anderson v. Texaco, Inc., 797 F. Supp. 531319 (E.D. La. 1993) (Miles compels the conclusion that a plaintiff who is statutorily barred from receiving a punitive award cannot recover punitive damages by couching his claim in the judge-made general maritime law of negligence and unseaworthiness.)

[3]  A monkey board is the platform on which the derrick man works when tripping pipe. It is mounted above the drill platform in the derrick.

By Tod J. Everage

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

By Sean T. McLaughlin

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

By Daniel B. Stanton

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

by Sean T. McLaughlin

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

by R. Lee Vail

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

by Tod J. Everage

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