Case Summaries (July 2016-September 2016)

Case Summaries (July 2016-September 2016)


Dominican National Found to be “Navigator” under Maritime Drug Law Enforcement Act Sentencing Enhancement – The Defendant Persis Trinidad (a Dominican national) was arrested while transporting cocaine from Columbia to the Dominican Republic. Trinidad and another defendant were intercepted by the United States Coast Guard in a vessel approximately 80 nautical miles south of the Dominican Republic. After his arrest, Trinidad agreed to plead guilty to one count of possession with intent to distribute cocaine. During sentencing, the District Court followed the recommendation of the probation officer in the presentence report, adding a two-level sentencing enhancement from the Maritime Drug Law Enforcement Act “MDLEA”, for a captain, navigator, or other operations officer aboard a vessel because Trinidad was a “navigator.” The defendant appealed the enhancement to his sentence, arguing that he was not a navigator because he merely steered the vessel and did not know how to program the GPS nor did he actually handle it. The First Circuit affirmed the District Court’s decision, that he qualified as a “navigator”, because he had steered for at least part of the trip and thus must have at least referenced the GPS in order to stay on course in the middle of the ocean. The District Court reasoned that use of the navigational device qualified as “navigating” within the meaning of the MDLEA and the First Circuit rejected Trinidad’s argument that a navigator must have knowledge of how to program or adjust a GPS, rather than just relying on it to keep the vessel on course. United States v. Trinidad, 839 F.3d 112 (1st Cir. 2016).

Submitted by George M. Chalos, CHALOS & Co., P.C.


Federal Arbitration Act “Look-Through” to Underlying Substantive Argument Expanded for Federal-Question Jurisdiction – Drew Doscher, the Plaintiff, commenced arbitration against his former employer, Sea Port Group Securities, for various breach of contract claims and was awarded almost $2.3 million of the $15 million sought. Thereafter, Doscher filed a petition to have his arbitration award against Sea Port vacated and modified in part because the arbitration panel 1) acted in manifest disregard to federal law, and 2) failed to make sure documentary evidence was fully and timely available to him, which would qualify for vacatur under § 10(a)(3). On the first issue, the Second Circuit quickly disposed of Doscher’s argument because federal law did not create the cause of action asserted in the arbitration, and the Exchange Act does not impose a duty to comply with FINRA rules to the arbitrators or non-SRO parties, only the organization itself. On the second issue, the Second Circuit reviewed its then-standing precedent (Greenberg v. Bear, Stearns & Co., 220 F.3d 22 (2d Cir. 2000), in light of the Supreme Court’s decision in Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262 (2009), which indicated that courts may “look through” the face of a petition coming under the FAA to the substantive issues in the underlying case to look for jurisdiction. In applying the Supreme Court’s decision, the Second Circuit concluded that the various sections of the Act were intended to be limited as to when remedies could be provided, rather than limited as to the jurisdiction of the courts based on the timing of a filing in relation to the commencement of arbitration. This interpretation allows the courts to consistently apply remedies provided in the FAA, such as modification or compelling arbitration, to cases as needed in the same controversy provided they have federal-question jurisdiction. The Second Circuit overturned Greenberg, vacated the finding of the District Court, and remanded for further proceedings instructing the District Court to conduct the federal question analysis consistent with Vaden. Doscher v. Sea Port Grp. Sec,. LLC, 832 F.3d 372 (2d Cir. 2016).

Submitted by George M. Chalos, CHALOS & Co., P.C.


Lack of Admiralty Jurisdiction When Captain Hurts a Passenger – A recreational vessel passenger brought a maritime personal injury action against the vessel, its captain, its owners, and other related parties arising from an incident in which the captain threw a plastic coffee cup at the passenger, striking him in the head. After a bench trial, the District Court of the Virgin Islands entered judgment in favor of the passenger and against captain and the vessel. The captain and vessel appealed. When a party seeks to invoke federal admiralty jurisdiction over a tort claim, the claim must satisfy conditions both of location and of connection with maritime activity. The connection aspect of the test is a conjunctive two-part inquiry: first, the court must assess the general features of the type of incident involved to determine whether the incident has a potentially disruptive impact on maritime commerce, and second, the court must determine whether the general character of the activity giving rise to the incident shows a substantial relationship to traditional maritime activity. The first prong of the connection test requires the court to assess the potential disruptive effects that the type of incident involved could have on maritime commerce, not whether the particular incident at hand actually disrupted maritime commerce; in so doing, the court must describe the incident at an intermediate level of possible generality. The Third Circuit found that the captain’s actions, in throwing coffee cup from land at the passenger, who was standing on an anchored vessel, did not have a potentially disruptive impact on maritime commerce, and thus district court did not have federal admiralty jurisdiction over the passenger’s personal injury claims arising from the incident; throwing a small inert object from land at an individual onboard an anchored vessel did not create any potential for disrupting the course of the waterway or obstructing the free passage of commercial ships on the water and had no potential to damage nearby commercial vessels. Hargus v. Ferocious and Impetuous, LLC, --- F.3d ----, 2016 WL 6081355 (3rd Cir. Oct. 18, 2016).

Waiver of Personal Jurisdiction Defense – Nearly three decades ago three former seamen sued their employers alleging violations of the Jones Act, 46 U.S.C. § 30104 et seq., and general maritime law resulting from their harmful exposures to asbestos. After a complicated procedural history that eventually saw their lawsuits consolidated in the Asbestos Multidistrict Litigation (“MDL”) in the United States District Court for the Eastern District of Pennsylvania, that Court dismissed their cases for lack of personal jurisdiction. The seamen appealed, arguing that the employers waived their personal jurisdiction defenses. Personal jurisdiction restricts judicial power not as a matter of sovereignty, but as a matter of individual liberty, for due process protects the individual’s right to be subject only to lawful power. Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived. A party is deemed to have consented to personal jurisdiction, and thereby waived it as a defense, if that party actually litigates the underlying merits or demonstrates a willingness to engage in extensive litigation in the forum. The Court of Appeals held that the employers waived their right to assert a personal jurisdiction defense because they had expressed a willingness to litigate their lawsuits in the Northern District of Ohio to a federal judge many years earlier. Those waivers were held to be confirmed by their various post-transfer filings. The employers’ subsequent efforts to preserve their personal jurisdiction defenses in their pleadings did not change the importance of their prior waivers. Thus, the court had personal jurisdiction over the employers. In re: Asbestos Products Liability Litigation, --- Fed.Appx. ----, 2016 WL 4395353 (3rd Cir. August 18, 2016).

Employment Battle – Shipping associations and unions brought an action against the Waterfront Commission of New York Harbor, challenging a Commission rule that required shipping companies and other employers to certify that prospective employees had been referred for employment pursuant to federal and state nondiscrimination policies, interfered with their collective bargaining rights. The district court dismissed their claims for failure to state a claim and the Third Circuit affirmed on the following grounds: (1) The regulation was a valid amendment to underlying interstate compact; (2) The regulation was not limited to deep-sea longshoremen; (3) The regulation did not violate rights of employees to collectively bargain; and (4) failure of Commission to conduct public hearings did not violate due process rights of associations and unions. New York Shipping Association Inc v. Waterfront Commission of New York Harbor, 835 F.3d 344 (3rd Cir. 2016)

Submitted by S. Scott Bluestein, Bluestein Law Firm, P.A


Tension Leg Platform not a Vessel for Longshore Purposes as to Employee Building Housing Module on Land – Baker, a marine carpenter working for Gulf Island Fabricators, was injured at a dockside fabrication yard while building housing modules destined to be installed on the tension leg offshore platform (TLP). He filed a Longshore claim for benefits claiming he was covered as a “shipbuilder” and alternatively under the Outer Continental Shelf Lands Act (OCSLA). The Fifth Circuit affirmed the legal and factual conclusion by the Administrative Law Judge that the tension leg platform was not a vessel for the purpose of the Longshore Act, noting that while the TLP would float and was going to be towed to location on the Outer Continental Shelf (OCS), it had no means of self-propulsion, no steering mechanism or rudder, no raked bow and was going to be anchored in place and serve as a work platform for the twenty year life of the oil field. The Court concluded that under Lozeman, “a reasonable observer, looking to [the TLP’s] physical characteristics and activities, would [not] consider it designed to a practical degree for carrying people or things over water.” Since the TLP was not a vessel, the employee was not engaged in “maritime employment” as a shipbuilder, even though his work location was a “maritime situs.” Additionally, the Fifth Circuit affirmed the ALJ’s determination that there was no significant causal link or nexus between the employee’s injury while building the housing module on dry land and natural resource extractive operations that the TLP would perform on the OCS to have Longshore coverage under the OCSLA, particularly where the employee’s work did not require him to travel to the OCS at all for the ultimate installation of the module on the OCS. The employee is seeking rehearing. Baker v. Director, Office of Workers’ Compensation Programs, 834 F.3d 542 (5th Cir.2016)

Drilling Employee Prior Employment on Drilling Vessels Does Not Qualify for Seaman Status – Felder had worked for Nabors aboard various drilling structures for 12 years before his claim. More than thirty percent of his work was aboard various Nabors’ vessel drilling rigs during the course of his overall employment with Nabors. However, for the one and a half years before his incident, his current work history was exclusively on platform drilling rigs. The Fifth Circuit affirmed the District Court’s summary judgment denying Jones Act seaman status to the employee noting that there was no evidence that the reassignment to platform rigs rather than vessel rigs was temporary and that the possibility of a future transfer to a vessel assignment was only speculative. Felder v. Nabors Offshore Corp., 2016 WL 5349281 (5th Cir. 2016). (This case was not selected for publication by the Court in West’s Federal Reporter.)

Longshore Employee Unable to Prove “Active Control” of Vessel Owner for 905(b) Liability – The Fifth Circuit affirmed a District Court’s summary judgment ruling in favor of the vessel owner under Section 905(b) of the Act. Noting that the plaintiff’s exclusive remedy against the vessel owner is under Section 905(b) of the Longshore Act, which permits a covered maritime worker to recover damages for personal injury caused by the negligence of a vessel, the Court stated that the Scindia case’s scope of a vessel’s duty to a Longshoreman has as its underlying principal that “the primary responsibility for the safety of the longshoremen rests upon the stevedore.” The Court further noted that the “active control” duty of the vessel for 905(b) liability is premised on the presence or existence of a “hazard” under the active control of the vessel. In this case, there was no direct or circumstantial evidence of a hazard on the walkway where the longshoreman slipped. There was no evidence submitted that any cargo leaked, dripped, or spilled at any time prior to the incident, or that any person tracked any type of slippery substance onto the walkway of the vessel. There was evidence that someone had observed only naturally-occurring moisture due to humidity on the deck. None of the witnesses observed any foreign substances on the deck. Thus, the Court found no violation of the active control duty by the vessel owner. Furthermore, the Court commented that the lack of a non-skid surface alone has never been held to be sufficient to give rise to a finding of liability under the active control duty exception. Kitchens v. Stolt Tankers B.V., 2016 WL 4120678 (5th Cir. 2016). (This case was not selected for publication by the Court in West’s Federal Reporter.)

In a Tort Allision Case, Attorney’s Fees Awarded to Plaintiff for Defendant’s Abuse of the Judicial Process – The Defendant’s towing vessel allided with a vessel that had been converted from military and commercial use by the owner for his private use. The Defendant vessel owner challenged both its liability for causing the allision/collision as well as the pre-casualty value of the damaged vessel. The District Court ultimately found the Defendant liable for the allision and that the damaged vessel was a total constructive loss with a much higher pre-casualty value than set out by the Defendant’s two experts. The District Court further awarded the Plaintiff attorney’s fees finding that the Defendant’s handling of the case was an abuse of process and in bad faith because the Defendant contested liability up to and through trial even though the Defendant “clearly knew the extent of its liability based on the circumstances of the case and the actions of its captain” and that the Defendant presented two expert witnesses on damages “so lacking they could not even properly name the vessel [at issue].” The Fifth Circuit affirmed the District Court’s ruling after a review of the District Court’s award under an abuse of discretion standard and the findings of fact under a clearly erroneous standard. The Fifth Circuit noted that federal courts possess “inherent power” to assess fees as sanctions when the losing party has “acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” Moench v. Marquette Transp. Co. Gulf–Inland, L.L.C., 2016 WL 5485122 (5th Cir. 2016).

Oral Ship-Repair Contract Enforceable under Maritime Law – The parties orally agreed for Defendant to inspect and repair engines on two offshore crew vessels which had been out of service for some time. There was a dispute as to the extent of the services agreed upon. Shortly after the Defendant repair company completed its work on some of the engines, the engines failed on the vessels. The District Court granted the Defendant repair company summary judgment dismissing the Plaintiff’s claims for inadequate repairs, finding that the Plaintiff could not prove that Defendant failed to do the promised work or that the repairs were inadequate or substandard. Also, the District Court denied a motion by the Plaintiff to alter the judgment under Rule 59(e) based on the fact that the Court had not ruled on the Plaintiff’s motion to supplement its opposition with depositions from experts on the potential cause of the failures. The Fifth Circuit reviewing the summary judgment de novo reversed the District Court finding that the Plaintiff’s opposition established that there was a genuine dispute of material fact as to whether it was more probable than not that Defendant repair company negligently performed the repairs to the engines. The Fifth Circuit found that the Plaintiff’s evidence did tend to indicate that the engines showed some signs of inadequate repairs and that since each party presented reasonable theories of what caused the engines to fail, the case should be remanded to be decided at a bench trial with evidence presented by both sides. Operaciones Tecnicas Marinas, S.A.S. v. Diversified Marine. 2016 WL 4169131 (5th Cir. 2016). (This case was not selected for publication by the Court in West’s Federal Reporter.)

Coiled Tubing Trainee Non-Seaman – Plaintiff, a field specialist trainee, worked for the Defendant on various locations on land, inland waters, offshore vessels and offshore platforms. Plaintiff performed mostly coiled tubing jobs throughout his employment with the Defendant. During an assignment to remove a stuck tool from a well on an offshore platform, Plaintiff was assisting the Liftboat crane operator to derig equipment from the platform. Plaintiff became concerned about a hydraulic hose getting caught on the gangway between the Liftboat and platform and was injured when he tried to move it on his own. The plaintiff sued his employer in State Court and Defendant employer removed the case to Federal court on the basis of diversity jurisdiction, the Outer Continental Shelf Lands Act, and an allegation that the Plaintiff employee fraudulently pled Jones Act seaman status to avoid removal jurisdiction. The District Court granted summary judgment finding that the plaintiff was not a Jones Act seaman and denied remand. The Fifth Circuit affirmed finding that whether the plaintiff’s time working aboard a vessel is viewed by hours worked or days worked, he did not spend 30% of his time in the service of a single vessel or fleet of vessels. Skinner v. Schlumberger Technology Corporation, 2016 WL 3667576 (5th Cir. 2016). (This case was not selected for publication by the Court in West’s Federal Reporter.)

Potential Claims against Charterer for Directing Vessel into Pirate-Infested Areas – Plaintiff, a vessel captain captured and held by pirates, sued Chevron and his own direct employer in State Court asserting Jones Act claims against both of his employers. Plaintiff was operating a vessel supporting a Chevron platform in the “pirate-infested areas in West Africa” when he was captured. Chevron removed the case to Federal court and moved to dismiss the Jones Act claims against Chevron based on its non-employer status. Plaintiff moved to remand and alternatively for leave to amend the lawsuit to “clarify his general maritime law claims” against Chevron as a non-employer such as Chevron’s failure to provide anti-terrorist security. The District Court converted the motions into summary judgment motions, ultimately granting Chevron’s motion to dismiss and denying the Plaintiff’s motion for leave to amend as the proposed amendments “would be futile” for adding a basis of liability against Chevron as a matter of law. The Fifth Circuit reversed District Court’s denial of leave to amend as being “futile” under a de novo standard of review rather than an abuse of discretion standard, since the denial of the amendment was the same as a dismissal of the claim under Rule 12(b)(6). The Fifth Circuit concluded that the Plaintiff’s intended amended allegations as expressed in its motion for leave, if established, supported a basis upon which relief could be granted under general maritime law against Chevron for Chevron’s knowledge of the “real risk of piracy,” Chevron’s “request that the [Vessel] take an unaccompanied support trip that would pass by the source of the recent threats” and that Chevron “broadcast his route information and locations over easily-accessible VHF radios.” The Fifth Circuit therefore vacated the judgment dismissing Chevron and remanded the matter to the District Court to allow for the amendment to the pleadings. Thomas v. Chevron U.S.A., 832 F.3d 586 (5th Cir. 2016)

LHWCA Presumption Rebutted – Employee toolpusher claimed an injury while working on a drilling rig on the Outer Continental Shelf when he fell six feet out of his top bunk onto the floor. Although he reported the incident, he did not fill out an accident report. The employee continued to work his normal schedule of 14 days on/14 off for over a year until removed for non-injury reasons. Fourteen months after the incident, he filed a Longshore claim for benefits. The Administrative Law Judge (ALJ) found that the employee made a prima facie case for the injury creating a §920(a) presumption that the injury arose out of his employment, shifting the burden to the employer to rebut through facts and not speculation that the injury was not work-related. The ALJ concluded that the employer rebutted the presumption by showing that: the employee worked continuously until removed for non-injury reasons; failed to report the injury for over a year; the medical records from his family physician failed to support an injury beginning from the date of the fall but began a year after the fall; the employee’s refusal of a new work assignment was not for injury reasons but because he was upset about another employee’s accident; and there were normal MRI scans a year after the accident. Additionally, the ALJ noted that the employee refused to cooperate with the employer’s investigation and engaged in strenuous activity at home post-fall. Also, there was evidence submitted that some of the physicians indicated that the employee’s spinal degeneration was not related to an accident and the employee had sought assistance from his stepson in helping him “find a doctor who would support his claim.” The Fifth Circuit affirmed the Benefits Review Board finding that ALJ’s decision was supported by “substantial evidence” that “credible evidence shows that [the employee] was not a credible witness and did not sustain any severe injuries from his bunk bed fall.” Woods v. Director, Office of Workers’ Compensation Programs, 2016 WL 5115363 (5th Cir. 2016). (This case was not selected for publication by the Court in West’s Federal Reporter.)

Submitted by Douglas W. Truxillo, Onebane Law Firm


Jones Act Negligence – Slip and Fall – Summary Judgment Denied – Plaintiff deckhand sued his employer Defendant American Steamship Company after slipping and falling on iron-ore pellets left on the dock. He asserted claims of unseaworthiness under general maritime law, maintenance and cure under general maritime law, and negligence under the Jones Act. Defendant moved for summary judgment on all three claims. Summary judgment was granted as to the maintenance and cure claim because Plaintiff admitted that Defendant met its maintenance and cure obligations. Summary judgment also was granted on the unseaworthiness claim because the dock, which was owned by another defendant (ONM), was not an “appurtenance” of Defendant’s vessel, despite the fact that Plaintiff was holding a mooring line attached to the vessel at the time of the fall. The Court also found that Plaintiff’s alternative argument—that the vessel’s officers were “incompetent in the exercise of their supervision under the circumstances”—was unsubstantiated. However, the Court denied summary judgment on the Jones Act claim. The Jones Act allows employers to be held responsible for injuries caused by the negligence of their agents—here, ONM, which had a services agreement with Defendant and had control of the dock. Further, Plaintiff raised factual issues regarding the lack of illumination of the dock, his crewmates’ knowledge of the hazardous dock condition, and his improper training by Defendant. Brown v. Carmeuse Lime & Stone, Inc., 2016 U.S. Dist. LEXIS 93006 (N.D. Ohio 2016).

Limitation of Liability Act Case – Engine Room Explosion – Summary Judgment Denied – Petitioners, the Motsingers, filed a Shipowners’ Limitation of Liability Act petition and a renewed motion for summary judgment after an explosion in the engine room of their boat injured a guest and damaged a nearby boat and boat slip. The Court denied the renewed motion for summary judgment. The Sixth Circuit adopted two elements for determining an owner’s liability under the Limitation of Liability Act: “(1) negligence or unseaworthiness and (2) the owner’s privity or knowledge of the negligence.” Summary judgment was denied because there were key factual disputes related to the Motsingers’ purported negligence and competence to operate the boat, such as whether an alarm was ringing right before the explosion, whether Tom Motsinger was a “novice” at boat operation and maintenance, and whether the Motsingers could have accessed the engine room to inspect a hose that had been identified by marine surveyors pre-purchase as cracked. In re Motsinger, 2016 U.S. Dist. LEXIS 135561 (W.D. Ky. 2016).

Jones Act Negligence – Injured Worker Not “Seaman” – Plaintiff warehouseman/deckhand sued his employer, Defendant Soo Marine Supply, a ship chandler operating a single vessel, under the Longshore And Harbor Workers’ Compensation Act and the Jones Act after he slipped and fell while moving pallets of frozen food in a refrigerator. The Court held that he could not sue under the Jones Act because he did not qualify as a “seaman.” Because the Jones Act does not define “seaman,” the Court used the two-prong rule adopted by the Supreme Court case of Chandris, Inc. v. Latsis, 515 U.S. 347, 347 (1995): “[a] worker who spends less than about 30 percent of his time in the service of a vessel in navigation should not qualify as a seaman under the Jones Act[,]” but departure from this guideline “will certainly be justified in appropriate cases.” The Court determined that Plaintiff did not meet the 30% rule of thumb based on the hours he logged for work. The Court also determined that no departure was justified in this case. First, just because a longshoreman is necessarily engaged in the mission of the ships he loads and unloads, this fact alone does not make him a seaman. The fact that Soo Marine had only one ship to which all of its employees were dedicated was also not salient, because that would imply that “[a]ny longshoreman working for a company with a dedicated fleet of cargo ships would likewise be a seaman.” Second, although Plaintiff was on the path to becoming a crane operator or captain aboard Soo Marine’s vessel, the Jones Act does not conclusively regard crane operators or captains as seamen and there is no evidence conclusively supporting that they would be considered seamen under the Jones Act. Lewan v. Soo Marine Supply, 2016 U.S. Dist. LEXIS 99944 (E.D. Mich. 2016).

Submitted by Eric S. Daniel, Thompson Hine LLP


United States Immunity – Flood Control Act; Discretionary Function Exception – Petitioner Ingram Barge Company’s vessel’s fourteen-barge tow broke apart and allided during an unsuccessful attempt to navigate the Marseilles Dam (a United States Army Corps of Engineers operated “run-of-the-river facility” not designed for flood water storage) during a high-water situation. During the attempted canal transit, the lockmaster allegedly offered to lower the gates 16 feet, but then raised the gates in mid-transit. Afterward, the river waters overflowed the dam and flooded the town of Marseilles, resulting in real and personal property damage. Various claimants sought damages. The United States sought immunity pursuant to the Flood Control Act or alternatively the discretionary function exception. The United States also moved to dismiss Petitioner Ingram’s contract and promissory estoppel claims. The Court denied summary judgment under the Flood Control Act, because there were issues of material fact surrounding whether the lockmaster was engaged in “flood-control activity,” which would be subject to immunity under the Act, or only acted to aid the Ingram vessel to navigate the dam. The Court granted summary judgment under the discretionary function exception based on the United States v. Gaubert, 499 U.S. 315 (1991) discretionary function analysis: the texts of the federal statute (33 U.S.C. § 1) and its related regulation (33 C.F.R. § 207) allowed for discretion generally or in the face of emergencies, and the claimants failed to identify policies restricting the lockmaster’s actions in this situation, did not provide any evidence that the high-water situation was not an emergency, and could only point to an Illinois Waterway provision that was irrelevant because the gates specified in that provision were not involved in the incident at issue. Furthermore, the operation of the dam was policy-based, as there was evidence that the Corps was concerned about property damage, personnel and public safety prior to the attempted transit, the claimants pointed out facts tending to show the lockmaster’s negligence (which is irrelevant to the analysis), and there was evidence the Corps was balancing competing policy interests in deciding whether and when to lower and raise the dam gates during the transit. The Court also discussed the “Good Samaritan” due care requirements under Indian Towing Co. v. United States, 350 U.S. 61 (1955), which some courts have viewed as a separate analysis to the discretionary function analysis, but other courts have viewed as instructive on the scope of the discretionary function analysis. After reviewing the relevant case law, the Court determined that Indian Towing speaks to the government’s state-law liability under the Suits in Admiralty Act, not to the discretionary function exception, and that in this case, even if Petitioner had detrimentally relied on the lockmaster’s actions, it would not preclude dismissal based on the discretionary function exception. The Court continued that even if Indian Towing were relevant to the discretionary function exception, the alleged presence of detrimental reliance alone would not bar the application of the exception, as there was no evidence here that the government assumed a duty “to take certain particular actions and then wholly failed to do so.” With regard to Petitioner Ingram’s contract-law claims: (1) the Court dismissed the promissory estoppel claim, as the United States has not waived its immunity to such claims under the Tucker Act and there is no evidence that such claims can be brought under the Suits in Admiralty Act; (2) the Court denied the United States’ motion to dismiss the breach of contract (implied-in-fact) claim as untimely and noted that the government has waived sovereign immunity for implied-in-fact contract claims under the Tucker Act and the Suits in Admiralty Act. In re Ingram Barge Co., 2016 U.S. Dist. LEXIS 90632 (N.D. Ill. 2016).

Submitted by Eric S. Daniel, Thompson Hine LLP


Longshore and Harbor Workers’ Compensation Act (LHWCA) – “Longshoreman” Defined – The Claimant was a handyman who injured himself while repairing the roof of a building located near the docks. The Claimant did not work on vessels; load or unload vessels; nor did he typically work on docks. The issue was whether Wakeley qualified as a longshoreman and, as such, was entitled to claim benefits under the Longshore and Harbor Workers’ Compensation Act. The Claimant could qualify: (1) by performing the work of a longshoreman, i.e., working on a boat or as dockhand loading and unloading boats or operating equipment used on and around the waterfront; and (2) by working in a “covered situs,” that is, working on “navigable waters,” or on an “adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” 33 U.S.C. § 903(a). The Court found that to qualify for benefits, an individual must be an ‘employee’ as that term is defined in the Act. The Court emphasized that the Act, as remedial legislation, should be liberally construed and extended coverage to employees engaged in construction work on maritime facilities, even if the worker’s specific job duties are not maritime in nature. Accordingly, the Court ruled that the Benefit Review Board did not err when it concluded that the Claimant was a covered employee based on the ALJ’s conclusion that maritime tools “may” have been stored in the building. Knutson Towboat Co. v. Wakeley, 2016 U.S. App. LEXIS 17421 (9th Cir., September 23, 2016)

Maintenance and Cure: Willful Concealment Defense – In two related matters, the respective Defendants moved for summary judgment on the ground that the Plaintiff was not entitled to maintenance and cure because he willfully failed to disclose his medical conditions before his employment when specifically asked about them. The Court found as a matter of law that the Defendants satisfied the materiality prong of the willful concealment defense recognizing Ninth Circuit precedent holding that where a seaman is asked to disclose pertinent information during a prehire medical examination or interview, and intentionally conceals or misrepresents material facts, he is not entitled to an award of maintenance and cure. The Court rejected the argument that the willful concealment defense requires an employer to show that it absolutely would not have hired a seaman if the seaman had revealed his medical conditions when asked about them. The Defendants asked about specific health conditions relevant to the work that the Plaintiff would perform on a preemployment questionnaire, an updated health assessment, and other documents that it used to make hiring decisions. The Defendants also testified that the company would have conducted further inquiry and may not have hired the Plaintiff had the seaman disclosed his pulmonary conditions. Am. Seafoods Co. LLC v. Lanu Naufahu, 2016 U.S. App. LEXIS 18191 (9th Cir. Wash. Oct. 6, 2016); Coastal Vills. Pollock, LLC v. Naufahu, 2016 U.S. App. LEXIS 18194 (9th Cir. Wash. Oct. 6, 2016)

Passenger Personal Injury: Duty of Vessel Owner/Operator – The 9th Circuit affirmed an award of summary judgment in a passenger negligence action brought against a cruise line because the condition that caused the passenger injury, namely walking on pavement that gave way, was not unique to maritime travel and the cruise line did not have a duty to warn since it did not have actual or constructive notice of the risk-creating condition. The Court rejected the argument that the cruise line should have known of the risk because one local newspaper in Mazatlán had reported the deteriorating conditions in the months preceding the Plaintiff’s fall. The Court remarked that the Plaintiff cited no authority requiring cruise ship operators to review newspapers from every port of call, let alone do so that extensively. The Court also rejected the argument that a cliff diver; a local vendor; and a Tropical Tours guide knew about the dangerous conditions indicating that the Plaintiff failed to establish that the cruise line was related to these individuals or entities, or that they advised the cruise line of the defects. The Court found that the information the cruise line routinely relied upon was extensive, and none of it provided a basis for concern. Reming v. Holland Am. Line, Inc., 2016 U.S. App. LEXIS 18531 (9th Cir. Wash. Oct. 14, 2016)

Submitted by Michael W. McLeod, Rumrell, McLeod & Brock, PLLC


Limitation of Liability – Duty to Warn – Appellant Aramark Sports and Entertainment Services rented a boat to three couples. Before renting the boat out, Aramark did not warn the boaters of the forecasted high winds, which the boat was not designed to withstand. The boat sank in high wind and rough water, killing two of the three couples. Before the heirs and estates of the deceased couples (“Claimants”) sued Aramark for wrongful death, Aramark filed a limitation-of-liability complaint in federal court under the Limitation of Liability Act, 46 U.S.C.S. § 30501 et seq., which was denied by the District Court. After Aramark appealed, the 10th Circuit conducted the two-step inquiry on limitation or exoneration. Because Claimants did not assert unseaworthiness and Aramark did not claim lack of privity or knowledge, the inquiry focused on “whether negligence by Aramark caused the accident.” The Court held that Aramark had no duty to warn about the weather, because the boaters could have easily taken preventative measures themselves, and had no duty to refuse rental of the boat due to weather, which would limit personal choice in the context of recreation. However, the Court did impose on Aramark the duty to warn the boaters that the boat was not designed for high winds. The Court vacated and remanded the case to determine whether Aramark breached this duty and whether Aramark’s defense that the decedents’ own negligence was a superseding cause in their deaths had merit. In re Aramark Sports & Entm’t Servs., LLC, 2016 U.S. App. LEXIS 13888 (10th Cir. 2016).

Submitted by Eric S. Daniel, Thompson Hine LLP


Arbitration Agreement Enforceable for Contract with U.S. Seaman’s Traveling to and from Foreign Country – In a case of first impression, the Eleventh Circuit confirmed that a seaman’s work in international waters on a cruise ship that calls on foreign ports constitutes “performance . . . abroad” under the United Nations Convention of the Recognition and Enforcement of Foreign Arbitral Awards. 9 U.S.C. §202. Plaintiff, a U.S. citizen, was a musician who worked on board the cruise ship that sailed from Florida to foreign ports in the Caribbean. After the plaintiff sued his employer under the Jones Act, the employer moved to compel arbitration since the Convention made arbitration agreements enforceable between U.S. citizens if the contractual relationship “envisages performance or enforcement abroad.” The Plaintiff argued that he only played music while the vessel was in international waters and not in the foreign ports, so that his contract did not envisage performance abroad. The Eleventh Circuit rejected that argument and concluded that “performance abroad included a seaman’s work traveling to or from a foreign country.” Alberts v. Royal Caribbean Cruises, Ltd., 834 F.3d 1202 (11th Cir. 2016). See also, Francis D’Cruz v. NCL (Bahamas),Ltd. 2016 WL 4501655 (11th Cir. 2016) reaching the same conclusion based on the Alberts binding precedent.

Non-Maritime Canal – No Admiralty Jurisdiction for Tort – In action by a vessel passenger who was injured striking his head on a pipe while passing under a canal bridge, case was dismissed by District Court for lack of Admiralty jurisdiction. The Eleventh Circuit affirmed the dismissal finding that the evidence showed that there was an artificial obstruction which prevented the canal from being able to support interstate commerce and, therefore, the tort did not occur on “navigable water,” the location requirement for a tort to fall within Federal Admiralty jurisdiction. The record showed that the canal did not have a navigable connection to a river, bay or ocean, but was confined within the State and did not form part of an interstate waterway. The “historically navigable” standard used to determine whether waterbodies might be governed by State or Federal law in other context, such as State or Federal ownership of water-bottoms and other statutes, is not applicable to determining admiralty jurisdiction for tort, as such analysis serves no purpose of protecting maritime shipping and commerce. Tundidor v. Miami-Dade County., 831 F.3d 1328 (11th Cir. 2016).

Submitted by Douglas W. Truxillo, Onebane Law Firm


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