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Spongebob Squarepants is a Jones Act seaman - Nautical Nonsense or Maritime Personal Injury Law?
LITIGATING MARITIME PERSONAL
INJURY CASES IN TEXAS
JAMES T. BROWN
Legge, Farrow, Kimmitt, McGrath & Brown, L.L.P.
6363 Woodway, Suite 400
Houston, Texas 77057
ADVANCED PERSONAL INJURY LAW COURSE 2004
Dallas - July 16, 2004
San Antonio - August 6 2004
Houston - August 27, 2004
TABLE OF CONTENTS
I. INTRODUCTION 1
II. THE JONES ACT 1
A. Standing - What is a Jones Act Seaman Anyway?
B. It Looks Like a Vessel, Operates Like a Vessel, But Is That Thing Really A Vessel?
C. Demette v. Falcon Drilling Company: Another Obstacle for Plaintiff to Navigate When Seeking Jones Act Status?
III. CRUISE SHIP LITIGATION AND FORUM SELECTION CLAUSES
A. Crew Claims 7
B. But Sea Nunez v. American Seafoods
C. Passenger Claims 8
IV. LIMITATION OF SHIPOWNERS’ LIABILITY ACT OF 1851-THE LAST REFUGE OF THE DESPERATE MARITIME DEFENSE LAWYER
A. Background
B. The Affirmative Defense of Limitation Under 46 U.S.C. § 183 Comes to State Court
C. Jones Act Suits are Non Removable (Generally)
V. PROCEDURAL TOOLS, PRESUMPTIONS, BURDENS OF PROOF.
A. The Pennsylvania Rule
B. The Rule of The Oregon
C. Venue
D. Preferential Trial Setting
E. Federal Maritime Law Comes to State Court: Subject Matter Jurisdiction and Choice of Law.
F. Admiralty Jurisdiction and Why May That Be Important?
G. Damages
VI. TORT REFORM GOES TO SEA
VII. FEDERAL REGULATION
A. Federal Regulation No Longer Preempts State Common Law Causes of Action in Recreational Boating Cases
B. OSHA Versus the Coast Guard: OSHA Wins
C. Emergency Evacuation Plan: A Duty to Plan, Not Execute
D. Can the Federal Government Tell a Texan How to Drive His Ski Boat?
VIII. PROSECUTING/DEFENDING A LONGSHORE PERSONAL INJURY CASE AT THE U.S. DEPARTMENT OF LABOR OWCP
. OALJ
B. The ALJ’s Decision and Order - The 20(a) Presumption
C. Nature and Extent of the Claimant’s Disability
D. Medical/Surgical Benefits
E. The Order
F. Appeal of the ALJ’s Decision and Order
IX. CONCLUSION 20
I. INTRODUCTION
Imagine you are sitting in your office on a quiet afternoon. In walks SpongeBob SquarePants wearing a cervical collar (square, of course). He relates to you that his employer, Mr. Krabs, owner the Krusty Krab Restaurant, sent him out on a boat to catch seafood for the signature dish, the Krabby Patty. While on the boat, he falls in fish grime and is severely injured. Or perhaps Admiral Horatio Hornblower, recently retired from the sea, has purchased a tourist barge that he operates on the San Antonio River. He comes in your office reporting that one of his captains is attempting to drop anchor in his pocketbook alleging an onboard injury under something called the “Jones Act.” Like it or not, should you take either case you will be practicing maritime law.
You will have to determine whether the case can be litigated in state or federal court, or both. Regardless of the forum, you will need to determine which law should apply, state or the federal maritime law. Is there a question of admiralty jurisdiction? Does that matter, and if so, why? If filed in state court, must the state court utilize the federal maritime law to adjudicate the claim? Is SpongeBob really a Jones Act seaman?
As a land-based personal injury attorney in Texas, it is quite possible you will be confronted with such questions. Texas is home to many sea ports, including the largest in the Gulf of Mexico. Offshore oil rigs are, in many cases, considered vessels under the law. Those who work on them are considered “Jones Act” seamen or longshoremen. The Fifth Circuit is considered one of the preeminent admiralty circuits in the federal system, and rightly so. Cruise ships now call at least three Texas ports. Passengers or crew injured on them, will have maritime claims.
The fact that you practice in a Texas city far removed from the ocean does not mean you will never be confronted with a maritime personal injury claim. The persons that own offshore oil rigs and vessels, the vendors that service them, in addition to crewmembers that serve on them, may live right next door to you. They may some day find their way to your office seeking assistance.
A maritime case may at first seem like dangerous waters rife with uncharted reefs named “Jurisdiction,” “Savings to Suitors Clause,” “Choice of Law,” and “Preemption.” Once one charts a course that leaves these hazards to the windward, the nuts and bolts of litigating the merits of a maritime personal injury claim are quite similar, if not identical, to those found within the safe harbor of the typical land-based personal injury suit.
II. THE JONES ACT
Personal injury cases on land and sea are similar so far as the injuries people unfortunately sustain. However, for several reasons plaintiff’s counsel often desire litigate a personal injury claim under the Jones Act, 46 USC § 688 et. seq., as well as the general maritime law. Workers’ compensation schemes do not apply to seamen. Under the Jones Act, the seaman enjoys a relaxed standard of causation. Proximate causation in the traditional sense is not required to obtain liability under the Jones Act. Once negligence is proven, the plaintiff may recover if that negligence played any part, “even the slightest,” in producing the injury or death for which damages are sought. Ferguson v. Moore-McCormack Lines, Inc., 77 S.Ct. 457, 458 (1957). This is sometimes called the “featherweight burden” of causation. Plaintiff’s counsel will prefer to sue for unseaworthiness under the general maritime law, as opposed to similar land-based concepts. Under the concept of unseaworthiness, a shipowner owes a duty to provide a seaworthy vessel. The duty is absolute and non-deligable. It is independent of negligence. The test for an unseaworthy condition is whether the vessel and its equipment were “reasonably fit for their intended use.” Mitchell v. Trawler Racer, Inc., 80 S.Ct. 926, 933 (1960). If a piece of ship’s equipment fails and a seaman is hurt, liability will result. No amount of due diligence or care may be asserted as a defense to unseaworthiness. If the shipowner had inspected and tested the piece of equipment every five minutes prior to its failure, it would still be liable if the jury finds that the failure of the equipment rendered it unfit for its intended use. This differs from many land-based causes of action where one may avoid liability if it can be shown that the defendant acted reasonably in inspecting and testing the equipment prior to the incident.
Unlike the Jones Act, however, once it is established that the equipment was unseaworthy, the plaintiff must meet the traditional proximate causation standard to recover damages.
Assuming an injury does occur on the vessel, the defending shipowner often finds itself with two strikes against it having to face a featherweight standard of causation in defending against a Jones Act negligence suit, and having to comply with an absolute and non-deligable duty of unseaworthiness with very few defenses. Fortunately, however, the maritime law also provides procedural and substantive vehicles that the defendant can use to make the course plaintiff must navigate in its attempt to drop anchor in the shipowner’s pocketbook difficult and sometimes treacherous.
A. Standing - What is a Jones Act Seaman Anyway?
This is a good question, and one with which the Fifth Circuit has grappled since it first defined a Jones Act seaman in its 1959 decision Offshore Company v. Robison, 266 F.2d 769 (5th Cir. 1959). Instead of providing the framework for a consistent definition of Jones Act seaman status, Robison left the district courts adrift on a confused sea. Years of result-oriented, nebulous judicial definitions of “seaman” under the Jones Act ensued.
Lately, however, the courts have provided guidelines that make it easier for plaintiffs and defendants to analyze a plaintiff’s standing as a Jones Act seaman. In 1995, the Supreme Court held that in order to have standing as a Jones Act seaman, a plaintiff must have an employment-related connection to a vessel in navigation. Further, the worker’s duties must contribute to the accomplishment of that vessel’s mission, and the worker must have a connection to a vessel (or an identifiable group of vessels under common ownership or control) that is substantial in terms of both nature and duration. Chandris, Inc. v. Latsis, 115 S.Ct. 2172, 2194 (1995).
Assuming that the plaintiff’s function does contribute to the mission of the vessel, how may a defendant still challenge his standing as a Jones Act seaman? It is common in the offshore industry for workers to have worked on various rigs and platforms over the course of their career. In such cases, the court looks at the “fleet” within which the plaintiff had been working. In determining what constitutes the requisite fleet, the courts require the various vessels to be “an identifiable group of vessels acting together or under one control.” Coats v. Penrod Drilling Corp., 5 F.3d 877, 890 (5th Cir. 1993). For example, a drilling superintendent or company man for an oil company may work on bona fide vessels, such as semi-submersibles. The drilling supervisor obviously contributes to the function of this vessel, which is to drill. However, oil companies generally do not do their own drilling. Rather, they hire drilling contractors that provide the “vessel” and the crew to operate it. The oil company, of course, places its own drilling superintendent or company man on these vessels to oversee operations. If such a drilling superintendent has worked on ten different “vessels” which were not owned or controlled by a single entity, over the course of a fifteen-year career, he has not worked for a fleet under “common ownership or control” and thus fails to meet the standard for Jones Act seaman status.
Another example would be a compulsory ship pilot who travels out to the sea buoy in a small pilot launch and boards large ocean-going vessels to bring them in to port. The pilot is working on the traditional “vessel” in every sense of the word, and is contributing to its mission which is navigating and carrying cargo. However, these pilots have been found not to be Jones Act seamen as the ships they work on are not under common ownership or control. Bach v. Trident Steamship Co., Inc., 947 F.2d 1290 (5th Cir. 1991) (reinstating the Court’s previous decision found at 920 F.2d 322).
Litigated examples are many. In Lirette v. N.L. Sperry Sun, Inc., 831 F.2d 554, 555 (5th Cir. 1987), the plaintiff spent seventy to eight-five percent of his time offshore on twenty-three special purpose drilling rigs during four years of employment. These rigs were owned by twenty-three different companies and the jobs lasted between one and fifteen days. The plaintiff was found not to be a Jones Act seaman. Similarly, in Ardleigh v. Schlumberger, Ltd., 832 F.2d 933, 934 (5th Cir. 1987), the plaintiff was randomly dispatched to work in a pool of one hundred and forty vessels and sixty-seven platforms. Ardleigh performed forty missions on thirty different vessels. Seventy percent of his time was spent working on vessels offshore. He was found not to be a seaman because he was not permanently attached to any of these vessels, and he did not perform a substantial part of his work on an identifiable group or fleet of ships. In Langston v. Schlumberger Offshore Services, Inc., 809 F.2d 1192, 1193-94, (5th Cir. 1987), thirty-two percent of the plaintiff’s time was working on vessels. The court found that the “fleet” at issue consisted of fifteen different vessels owned by ten unrelated companies. The plaintiff was found not to be a seaman as she had not worked on an identifiable fleet of vessels.
Let’s assume, much to defense counsel’s chagrin, that all the plaintiff’s work has been on bona fide vessels that are under common control therefore meeting the fleet requirement. Defense counsel need not yet head for the lifeboats (or courthouse for trial). Often, it is common for workers in the offshore oil field to spend a portion of their time working on land, and a portion of their time working offshore on a bona fide vessel under common ownership. Even if such a worker is injured while performing his mission on the vessel, there is still hope of challenging his Jones Act status. The Supreme Court’s Chandris decision set forth guidelines for lower courts to use when analyzing such a worker’s Jones Act status. Chandris, curiously enough, involved a traditional oceangoing ship. The plaintiff was injured while on the ship repairing its machinery and obviously contributing to its mission. Nevertheless, the court found that the plaintiff’s job duties required him to be on the ship less than thirty percent of his total work time and thus found he did not meet the temporal element required for a seaman’s status. Although it did not state this as a bright-line rule, the lower courts that have interpreted it have been applying a “thirty percent or more” requirement for Jones Act status.
In Roberts v. Cardinal Services, Inc., 266 F.3d 368 (5th Cir. 2001), the Fifth Circuit adopted the Supreme Court’s “thirty percent rule” requiring workers claiming to be Jones Act seaman to spend more than thirty percent of their time in the service of a vessel in navigation. The thirty percent threshold applies whether one, or several, vessels are at issue. As always, these vessels must still be under common control or ownership. The Fifth Circuit clearly quantified the requisite connection:
A worker who aspires to seaman status must show at least thirty percent of his time was spent on vessels, every one of which was under his defendant-employer’s common ownership or control.
Roberts v. Cardinal Services at 377.
The channel a plaintiff must navigate in his efforts to achieve Jones Act status was rendered even more treacherous in Nunez v. B & B Dredging, Inc., 288 F.3d 271, 275 (5th Cir. 2002) (cert. Denied, sub nom., Nunex v. Clarendon American Ins. Co., 123 S.Ct. 620 (2002). In that case, it was undisputed that the plaintiff was permanently assigned to one vessel, a dredge. His function on that vessel contributed to its mission. However, his particular job duties required him to be physically on board the vessel only ten percent of the time. The other ninety percent of the time he was ashore monitoring the vessel’s dredge pipeline and seeing to the appropriate disposal of the spoils pumped through it. The court applied the thirty percent rule of Chandris to the situation and found him not to be a seaman, despite the fact that technically he was assigned to the vessel 100% of his working time. The court looked at the specific duties of his assignment which required him to step ashore. This seems akin to allowing the worker to step in and out of Jones Act coverage, something that has been traditionally disdained by the courts.
B. It Looks Like a Vessel, Operates Like a Vessel, But Is That Thing Really A Vessel?
The Fifth Circuit has observed “the existence of a vessel is a ‘fundamental prerequisite to Jones Act jurisdiction’ and is at the core of the test for seaman status.” Gremillion v. Gulf Coast Catering Co., 904 F.2d 290, 292 (5th Cir. 1990) reh’g denied, 909 F.2d 1479 (5th Cir. 1990). In Gremillion the Fifth Circuit admitted that the term “vessel” is incapable of precise definition and observed that the vagueness of the term is such that “it has been suggested that ‘three men in a tub would fit within our definition, and one probably could make a convincing argument for Jonah inside the whale.’”
To be a vessel the structure that the plaintiff works on must satisfy three tests:
1. The structure itself is a bona fide “vessel” as that term is defined by law (no easy task);
2. The vessel is actually in navigation (actively working and not laid up or “stacked”);
3. The vessel in navigation is part of an identifiable fleet under common control.
We have already discussed the second two parts of this test, however, the first one has been subject to varying legal definitions. To put it bluntly, the courts have had as much trouble defining which structure is a “vessel,” as they have had with defining the “Jones Act seaman.”
Prior to the technological developments in the offshore oil field, a vessel was indeed a vessel. You had tankers, freighters, tugboats, barges - all traditional ships. All craft designed to transport passengers and cargos on water. However, if one practices in Texas, the seamen encountered often work on non-traditional vessels or structures that service the offshore energy industry. Not surprisingly, the majority of decisions interpreting what is a vessel (or a Jones Act seaman) arise out of state and federal courts within the Fifth Circuit. A brief discussion of the various types of structures one can anticipate follows:
Fixed Platforms
Fixed platforms are traditional platforms having a structure mounted on a steel “jacket” that is permanently affixed to the seabed. They are generally held to be non-maritime. Case law defines them as artificial islands that fall under the scope of the Outer Continental Shelf Lands Act (43 U.S.C. § 1333(a)(1)) when located on the OCS. When located in state waters the law of the state applies. As they are considered artificial islands, they are not vessels and workers aboard them cannot be Jones Act seamen. Their rights and remedies as to their employer will be provided by the Longshore Act or State Worker’s Compensation.
Jack-up Rigs
The traditional jack-up rig which can float and traverse the ocean like a vessel, to later “jack” itself up, place its legs on the ocean bottom, and commence drilling, has long considered a vessel for Jones Act purposes. Offshore Company v. Robison, 266 F.2d 769 (5th Cir. 1959); Marathon Pipeline Co. v. Drilling Rig Rowan/Odessa, 761 F.2d 229 (5th Cir. 1985). After the recent Demette case which will be discussed later, this is no longer certain.
Spar Platform
A spar is a nautical structure designed to float with most of the hull below the waves like a giant buoy. They are cylindrical having a diameter of 70 feet and length in the range of 700 feet. The section that is above the surface of the water consists of the production deck, crew quarters, pumps, lifeboats, and production facilities. In Fields v. Pools Offshore, Inc., 182 F.3d 353 (5th Cir. 1999) cert. denied, 120 S.Ct. 1161 (2000), the Fifth Circuit had the opportunity to evaluate the vessel status, if any, of the first spar platform deployed in the Gulf of Mexico. It was anchored above seven wells in an offshore field 100 miles off the Alabama coast. Six chain and wire lines connected the bottom of the spar to six pilings driven 180 feet into the seabed. In addition, the structure was further fixed in place by a network of pipes used to extract and transfer petroleum. The casing risers extended from each of the seven well heads to the spar, and two pipe lines transported the spar’s product away from the location. The spar had no means of propulsion, but could be maneuvered into position by tightening and slackening the securing chains. Movement was limited to a 250-foot range. The defendant produced affidavits establishing that it was the intent to have the spar remain fixed in that location for at least fifteen years until the field was exhausted.
The plaintiff was a rough-neck on the spar platform who was injured in the course and scope of his duties. He filed suit under the Jones Act. The plaintiff agreed he had no Jones Act claim if the spar was not a vessel. The court used the three factor test set forth in Burchett v. Cargill Inc., 48 F.3d 173, 176 (5th Cir. 1995) in its vessel analysis. The court focused on the following three questions: (1) whether the structure was constructed to serve primarily as a work platform and not a mode of transportation, (2) whether the structure was moored or otherwise secured at the time of the incident, (3) whether the transportation function of the structure went beyond theoretical mobility and occasional incidental movement. The defendants’ affidavits proved there were no plans to even consider moving the vessel, that it was permanently secured to the ocean floor using an elaborate system that guaranteed minimal movement. Any movement was extremely limited and purely incidental. Under this three-prong test, the Court found the Neptune spar was clearly a work platform and not a vessel. Id. at 359.
Semi-submersibles
Semi-submersibles are basically floating drilling rigs that are anchored to the seabed using traditional ship-type anchors and anchor chain. They are generally considered to be vessels due to their mobility. Fontenot v. Mesa Petroleum Co., 791 F.2d 1207 (5th Cir. 1986).
Submersible Drilling Barges
A submersible petroleum storage barge is sunk to the bottom of the sea and connected to a nearby platform by pipes and catwalks. It is not permanently affixed to the seabed. The structures are deemed vessels. Hicks v. Ocean Drilling & Exploration Co., 512 F.2d 817, 823-24 (5th Cir. 1975) cert. denied, 965 S.Ct. 777 (1976). See also Colomb v. Texaco, Inc., 736 F.2d 218, 221 (5th Cir. 1984) (“highly mobile” submersible drilling barge was “routinely” refloated and moved to the next location was a vessel for Jones Act purposes).
Tension Leg Platforms
Tension leg platforms are composed of sealed columns connected by a ring pontoon structure with a rectangular cross section. The hull, with its modular deck, is secured by a number of tendons of 20-25 inches in diameter to a foundation system of tendon receptacles held in place by large pilings. These pilings are driven into the seabed. The buoyant force of the hull keeps the moorings in tension. In McKay v. Offshore Specialty Fabricators, Inc., 1997 W.L. 289365 E.D. La. (1997), the plaintiff was injured working on a tension leg platform (TLP). Evidence that the TLP had been stationary for eight years, that there were no plans to move it, and that its design was specific to the job site persuaded the court to deem it a non-vessel. Other factors the court considered included the Mineral Management Services’ (MMS) classification of the vessel as a “structure.”
Floating Production Storage and Offloading Facility.
The original FPSOs and the majority in use today were originally traditional oil tankers that were modified and converted from tanker to FPSO. FPSOs have onboard production and processing equipment and storage facilities for hydrocarbons. They are capable of offloading crude oil to shuttle tankers for transportation, and/or have pipelines directly to the shore. An FPSO may be moored directly to the seabed or dynamically positioned using thrusters over the production site. There is no specific case law of yet from Texas or Louisiana analyzing the status of an FPSO. The FPSO may be termed a vessel if it retains features characteristic of a traditional vessel. As the FPSO loses those features (disabling propulsion systems, substantial moorings, long term dedication to a field, etc.) it will likely lose its vessel status.
Deep Draft Cason Vessels
As with FPSO’s, deep draft cason vessels (DDCV) likewise have not been analyzed by a court with regard to their status as a vessel. A DDCV generally consists of a cylindrical hull buoyed with air-filled compartments in the upper portion. It is ballasted with seawater, as well as fixed ballast, in the lower compartments. The top of the structure contains production facilities and can produce up to one hundred thousand barrels of crude, and/or 325 million cubic feet of gas, per day. The three-level deck provides the offshore processing facilities as well. The DDCV is moored via twelve anchor lines which extend in a radial pattern from the hull. The mooring lines are approximately 7,100 feet long and are connected to piles permanently driven into the sea floor at a depth of approximately 4,800 feet. The mooring lines are taut, but have some flexibility and form a cantenary between the hull and the ocean floor. Given the foregoing, it can be anticipated that the courts will find the DDCV to be similar to a spar platform and thus a non-vessel.
Will the United States Supreme Court Lay the Keel For a Clearer Definition of Vessel Status?
Is the question of vessel status a legal Flying Dutchman, condemned to forever sail the seas in search of concrete definition? Perhaps not. The Supreme Court recently granted certiorari in a First Circuit personal injury case involving vessel status.
In Stewart v. Dutra Construction, Co., 230 F.3d 461 (1st Cir. 2000), the First Circuit held tht a floating dredge platform, accompanied by two scows, was not a vessel for purposes of the Jones Act. At issue in Stewart was the SUPER SCOOP, a large floating platform equipped with a clamshell bucket. The SUPER SCOOP operated as a dredge, removing slit from the ocean floor and dumping in onto the scows. Once full, a tug boat would tow the scow to sea and dispose of the dredge material. Although largely stationary, the SUPER SCOOP was fitted with navigation lights, ballast tanks, and a dining area for the crew. The SUPER SCOOP, itself, was incapable of self-propulsion, but did move through the use of anchors and cables at approximately thirty to fifty feet every two hours. The SUPER SCOOP was classified as an industrial vessel, and as such, was required to “comply and register with safety regulations issued by the Coast Guard and the United States Department of Transportation.” Stewart, 230 F.3d at 464. The SUPER SCOOP also had a load line certificate issued by the American Bureau of Shipping.
The First Circuit relied on its earlier decision in Digiovanni v. Traylor Bros. Inc., 959 F.2d 1119 (1st Cir. 1992), in holding that “if a barge or other float’s purpose or primary business is not navigation or commerce, then workers assigned thereto for its shore enterprise are to be considered seamen (for Jones Act purposes) only when it is in actual navigation or transit.” Id. at 467 (emphasis in original). The First Circuit found that the SUPER SCOOP’s primary purpose was dredging and not navigation or commerce. Further, the court found that the plaintiff was not a Jones Act seaman because the SUPER SCOOP was stationary, and not in actual navigation or transit when he was injured.
The dredge owner argued that the First Circuit should “scuttle” its DeGiovanni precedent as it is “impractical, unwise, and inconsistent with the decisions of other courts (including the Fifth Circuit).” Id. The First Circuit declined the vessel owner’s invitation, and ruled that it was bound by stare decisis.
The United States Supreme Court has granted certiorari, 124 S. Ct. 1414, on the issue of vessel status to ostensibly refine the test for a vessel in navigation for purposes of the Jones Act. The Supreme Court’s decision could have significant impact on existing Fifth Circuit jurisprudence regarding vessel status, i.e., jack-up rigs, semi-submersible rigs, and submersible drilling barges, etc. The Supreme Court should decide the case later this year. For a more thorough review of Fifth Circuit jurisprudence regarding vessel status see Manuel v. P.A.W. Drilling & Well Service, Inc., 135 F.3d 344 (5th Cir. 1998).
C. Demette v. Falcon Drilling Company: Another Obstacle for Plaintiff to Navigate When Seeking Jones Act Status?
Although not a Jones Act case, the Court analyzed the vessel status of a jack-up rig in order to determine which law would be used to interpret the indemnity clause in an offshore service contract. The decision, however, is anticipated to have an impact on seamen status litigation in the future. In Demette, the 5th Circuit reiterated that “special purpose movable drilling rigs, including jack-up rigs, are vessels within the reading of the admiralty law.” Demette v. Falcon Drilling Co., Inc., 280 F.3d 494, 498 n.18 (5th Cir. 2002) reh’g en banc denied, 37 Fed. Apps. 93 (Table) (5th Cir. March 5, 2002).
The court found that despite the fact the jack-up rig involved was traditionally considered a vessel, the Outer Continental Shelf Land’s Act (OSCLA) applied and the maritime law was not applicable. The principal issue in the case was which law the court would use in interpreting an indemnity provision in a contract. It did not involve a Jones Act claim, but will likely be used, at least by analogy, when challenging Jones Act status of persons injured on similarly situated jack-ups. In a bitter descent, Judge Demoss stated:
Like a ship without an engine or rudder, . . . our Fifth Circuit case law on the subject of “maritime employment” and “maritime contract” is floated from one side of the Gulf of Mexico to the other depending on the vagaries of wind and current in each individual case. I regret to say that our circuit case law on “what is a vessel” and “what is a maritime contract” and what is “maritime employment” have taken on a Humpty-Dumpty approach - they are whatever a particular panel says they are. That’s a tragic circumstance because it destroys uniformity and predictability of the law; and the only ones who benefit from unpredictability and confusion are the lawyers.
Demette, 280 F.3d 492, 517. Although Judge Demoss called for en banc consideration, it was not granted. Generally, if a structure is considered a vessel, it cannot be an OCSLA situs and thus claims are governed by the maritime law. In Demette, the Fifth Circuit realized that forty years of their jurisprudence indicated that jack-up rigs were vessels. Therefore, they did conclude that the jack-up in Demette was a vessel. They also found, however, it was an OCSLA situs under Section 1333(a)(1) of OSCLA which states the Act applies to “all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed.” The court found that at the time of Demette’s injury, the Falcon Rig No. 85 was jacked up over the OCS and thus was a device temporarily attached to the seabed for the purposes of drilling for oil. Therefore, it found the situs requirement of Section 1333(a)(1) to be met. A better argument may have been to use existing jurisprudence with regard to the requirement for vessel status as previously outlined. One would simply recognize a jack-up is indeed a vessel, but argue as it is temporarily attached to the seabed for the purposes of exploring for oil, it is no longer a “vessel in navigation,” and thus persons working on it do not satisfy the vessel prong of Jones Act status.
One can anticipate clever/desperate maritime defense counsel attempting to use Demette in a Jones Act context when challenging the status of an injured jack-up hand. One thing that is certain, as with the last forty years of Jones Act status litigation, Demette lays the basis for parties and the courts to continue their quest to capture and define the elusive Jones Act seaman.
III. CRUISE SHIP LITIGATION AND FORUM SELECTION CLAUSES
Recently, cruise lines have begun marketing the State of Texas and adjacent states for cruises in the Gulf of Mexico and Caribbean. There are currently cruise ships calling in the Ports of Galveston, Houston, and to an extent Corpus Christi. These cruise ships have large numbers of seamen working on them, as well as passengers. The state and federal courts in Texas are starting to see more cruise ship litigation.
A. Crew Claims
One thing common to cruise ship cases that one rarely finds in the non-cruise ship Jones Act suit, are a forum selection clauses. Seamen working aboard these cruise ships are generally foreign nationals from countries such as the Philippines, Honduras, and the former Soviet block states. They often work through a manning agent who negotiates a contract for them with a cruise ship company. These contracts may be up to a year or more in length, after which they will go home for vacation and then return to work with the same or often another company under a new contract. These contracts usually have forum selection clauses which defense counsel should be aware of, and plaintiff’s counsel wary of.
In Speed v. Omega Protein, Inc. 246 F.Supp. 2d 668 (S.D. Tex. [Galveston] 2003), a seaman brought an action against a vessel owner to recover for work related injuries. Judge Samuel B. Kent held that the forum selection clause in the plaintiff’s employment was not procured through overreaching and thus enforceable. In that case, plaintiff, Mr. Speed, sustained serious injuries when a block smashed into his head. The seaman’s employment contract required all lawsuits arising out of his employment to be filed in the U.S. District Court in Mississippi or Louisiana. Defendant’s headquarters was in Houston and venue was proper in the Southern District of Texas. The court commented a forum selection clause is generally enforceable unless it “contravenes a strong public policy of the forum in which the suit is brought, whether declared by statute or judicial decision.” Speed at 673. The court recognized that it was charged with considering the seaman a ward of the court and protecting his rights. However, the court found that the forum selection clause provided some indication that the convenience of the parties would presumably be better served by transfer to Louisiana. Id. at 674. Instances in which a forum selection clause may be unenforceable would be in any of the three following circumstances: (1) enforcement of the clause would prevent plaintiff from having his day in court, (2) the forum selection clause was procured by overreaching or fraud, or (3) the court’s enforcement of the forum selection clause would violate a strong public policy. Speed at 672.
In Sabocuhan v. Geco-Prakla, 78 F.Supp.2d 603, 607 (S.D. Tex. [Galveston] 1999), Judge Kent again upheld a forum selection clause in a Jones Act seaman’s contract. In that case, the plaintiff was Filipino national whose employment contract incorporated the Migrant Workers and Overseas Filipinos Act of 1995 (MWOFA) which grants the labor arbitors of the National Labor Relations Commission of the Philippines exclusive jurisdiction. The precise language in the contract had been previously examined with approval by the Fifth Circuit in Marinechance Shipping Ltd. v. Sebastian, 143 F.3d 216, 220 (5th Cir. 1998) cert. denied sub nom. Sebastian v. Marinechance Shipping, Ltd., 119 S.Ct. 620 (1998). The plaintiff did not dispute that the contract incorporated the forum selection provision, nor did he allege overreaching or fraud in the negotiation of his contract. The court found itself bound to follow Marinechance and dismissed the matter without prejudice for further litigation in the Philippines. Sabocuhan v. Geco-Prakla, 78 F.Supp.2d 603, 605 (S.D. Tex. [Galveston] 1999).
Judge Kent dismissed another Filipino seaman’s action under the Jones Act due to a similar forum selection clause in De Joseph v. Odfjell Tankers (U.S.A.), Inc., 196 F.Supp.2d 476 (S.D. Tex. [Galveston] 2002). But see Nunez v. American Seafoods, 52 P.3d 730 (Alaska 2002).
B. But Sea Nunez v. American Seafoods
In these foregoing cases, plaintiff did not raise the prohibition against forum selection clauses found in the Federal Employer’s Liability Act for railroad workers, which is adopted by the Jones Act and extended to seamen. In Nunez v. American Seafoods, 52 P.3d 720, 2002 AMC 1841 (Alaska. 2002), the Alaska Supreme Court was confronted with a case where an American seaman was injured while working on a vessel on Dutch Harbor, Alaska. His employment contract had a forum selection clause requiring him to sue in the U.S. District Court in Seattle, Washington. He filed his Jones Act claim in Alaska’s Superior Court at Dillingham. The trial judge dismissed the claim without prejudice on the basis of the forum selection clause. The Alaska Supreme Court began its analysis by noting that the Jones Act accomplishes its goal of giving injured seamen a right of action against their employers by incorporating the rights conferred to railway workers under FELA. In relevant part, the Jones Act provides: “Any seaman who shall suffer personal injury in the course of his employment may . . . maintain an action for damages at law . . . and . . . all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway workers shall apply . . . .” 46 U.S.C. § 688 (a). The court properly noted that the Jones Act language considering the rights and remedies of railway workers had the effect of extending to sailors the provisions of FELA and the jurisprudence interpreting it. In the eyes of the Alaska Supreme Court, the Jones Act effectively places an injured seaman like Nunez in the shoes of an injured FELA railway worker.
The court then turned to the U.S. Supreme Court’s Boyd v. Grand Trunk Western R.R. Co. decision. The specific issue considered in Boyd was the validity of a contractual forum selection agreement limiting an injured railway worker’s choice of forum under FELA. Section 6 of FELA gives an injured railway worker the choice of filing claims in a state or federal forum. Boyd v. Grand Trunk R. R. Co., 70 S.Ct. 26, 27 (1949). Relying on Section 5 of FELA which is a categorical prohibition against contracts exempting employers from FELA liability, the Boyd court invalidated the disputed forum selection agreement holding that a worker’s “right [under Section 6] to bring the suit in any eligible forum is a right of sufficient substantiality to be included within the Congressional mandate of Section 5.” It could not be restricted by a contractual provision. Boyd, 70 S.Ct. at 27. The Court concluded that “the right to select the forum granted in Section 6 is a substantial right. It would thwart the express purposes of [FELA] to sanction defeat of that right by the device at bar.” Boyd at 28. The seaman’s forum selection clause in Nunez was held invalid on the same grounds.
C. Passenger Claims
Passenger ships may employ six to seven hundred crew members, and may carry three times that amount of persons as passengers. The choice of forum in passenger agreements is usually Broward or Dade counties in Florida where many of the cruise ship’s United States offices are located. The terms and conditions on passenger tickets are usually printed in compact paragraphs in small print. Clauses limiting liability, selecting a forum, or setting a time within when an action must be commenced, may or not be printed in a different type or color. Generally there is no space for the passenger’s signature. Recent cases upholding forum selection clauses and having copies of cruise ship tickets printed as part of the decision include Carnival Cruise Lines Inc. v. Shute, 111 S.Ct. 1522, 1534-38 (1991) and Effron v. Sun Line Cruises, Inc. 67 F.3d 7 (2d Cir. 1995). Generally, recent case law interpreting these forum selection clauses hold that the terms and conditions set out in the cruise booklet or ticket jacket are also binding upon passengers if the carrier has “reasonably communicated” them to the passengers before embarkation.
IV. LIMITATION OF SHIPOWNERS’ LIABILITY ACT OF 1851-THE LAST REFUGE OF THE DESPERATE MARITIME DEFENSE LAWYER
A. Background
Various nations have Limitation of Liability Acts limiting the liability of shipowners. The basic policy behind them is that it is unfair to impose liability on a shipowner for circumstances beyond his control, such as the acts of his crew once the vessel breaks ground, as well as perils of the sea. In the early 1700's, England passed such a statute relieving shipowners from liability for the acts of their crew that were not within the privity of knowledge of the vessels’ owners. Under the Act, the liability of an English owner could be limited to the value of its vessel, cargo, and freight at the end of a particular voyage. American shipowners, on the other hand, were subject to full liability for any claims asserted. This resulted in a competitive disadvantage and United States interests began registering their vessels under British Registry, as opposed to the U.S. flag. In 1851 to maintain the competitiveness of the U.S. fleet, Congress enacted a similar Limitation of Liability Act, codified at 46 U.S.C. § 181. The Limitation of Liability Act allows a vessel owner to limit its liability to the value of the vessel, its cargo, and pending freight. It is important to note that the value of the vessel is determined after the collision or casualty. Complaint of Caribbean Sea Transport, Limited, 748 F.2d 622 (11th Cir. 1984). This may sometimes be of great benefit to the shipowner. Should the incident giving rise to the seaman’s injury or death involve a sinking or other type of severe vessel damage, the owner may be able to limit its liability to an amount close to zero, or the mere scrap value of the steel. While England and many other countries did away with their Limitation of Liability Acts many years ago, the U.S. Limitation of Liability Act remains firmly intact, although somewhat disfavored by many courts.
Some commentors, however, note that allowing a shipowner to limit its liability to the value of his vessel is similar to allowing the corporate fiction on land to limit its liability to its assets. See Lynn N. Hughes, The Shipowner’s Right to a Limitation Liability Adrift on a Sea of Tort Changes, 1998 Lloyd’s Mar. & Com. Law Q’ly 517. In that article, Judge Hughes states that “the shipowners’ right to limit liability may have been an anachronistic twenty years ago but, at least in the United States, it now sits comfortably among the techniques being employed by various legislatures to stabilize the size and grounds of tort liability so that insurance industry is possible. . . . . The protection of doing business available through the corporate forum is a common example of non-maritime law that encourages economic development and limits liability. . . . . There is no reason to believe the corporate veil will insulate the shipping company any more effectively than the limitation principle if the result is still manifestly and grossly unjust.”
Under the Act, persons permitted to limit their liability to the value of the vessel include the owner, and any bareboat charterers that stand in the shoes of an owner.
As explained by the Fifth Circuit in Vatican Shrimp Co., Inc. v. Solis, 820 F.2d 674 (5th Cir. 1987) cert. denied, 108 S.Ct. 345 (1987), the Act provides shipowners with two procedural vehicles for limiting their liability. The first method is under 46 U.S.C. § 185 which permits a shipowner to file its own action in federal district court. This action has a time bar that requires it to be filed within six months of receiving “written notice of the claim.” Under this Section, claimants are compelled to file their actions in the shipowner’s limitation of liability proceeding within four to six weeks or they face default. No claims may be filed in any court other than the federal court in which the limitation action is pending. In a case involving a Jones Act jury trial in state court, this procedural vehicle can provide a means for the defendant shipowner to have the Jones Act claim litigated in federal court without a jury. This can be of benefit to defendants as Jones Act cases are generally considered non-removable due to the Savings to Suitors clause.
The second method in which a shipowner can limit its liability under the Act is under Section 183 which, unlike Section 185, has no time bar. Section 183 merely allows a shipowner to plead limitation of liability as an affirmative defense. However, it was generally believed that once the shipowner’s right to limit liability was contested, “only a federal court may exercise jurisdiction of the matter because the cause becomes cognizable only in admiralty.” Vatican Shrimp Co. 820 F.2d at 677.
Often, the shipowner would not be able to take advantage of the Act. Assume that the shipowner did not file its own limitation of liability action within six months of receiving written notice of the claim. A year later, the seaman files a Jones Act case in state court, which is non-removable. The shipowner is time barred so far as filing its own limitation action. While the shipowner could assert the affirmative defense of limitation of liability under 46 U.S.C. § 183 in the state court action, the state court did not have jurisdiction to adjudicate that issue. If a shipowner defendant in state court failed to timely file a Section 185 petition in the federal district court within six months after receiving written notice of the claim, his right to limit liability was effectively forfeited once the plaintiff contested the limitation defense. “This is so because solely filing in the state court an answer in which limitation is plead does not provide a federal court with jurisdiction to act.” Vatican Shrimp at 678. It was for that reason that the Fifth Circuit recommended the “prudent shipowner” should timely file a Section 185 limitation proceeding in federal court then move to have it stayed until such time as someone filed a suit against it. Vatican Shrimp at 678-79. Once sued in state court, the shipowner can then have the previously filed limitation action reopened, and obtain an injunction enjoining all claims not filed in the federal forum.
The Limitation Act can also be used by a defendant to secure, to the extent allowed, the venue of his choice. The Supplemental Rules For Certain Admiralty and Maritime Claims set forth procedures for use in various admiralty proceedings. Rule F governs Limitation of Liability proceedings. Rule F(9) sets forth the venue rules for limitation proceedings. Prior to a suit being filed against the vessel owner, a limitation proceeding may be filed (1) in the district in which the vessel is currently located, or (2) if the vessel is not within any district (back at sea), then in any district. If, however, suit has already been filed against the shipowner in state or federal court, the limitation proceeding would have to be filed in the federal district encompassing that suit. As with any civil matter, venue is always subject to transfer upon appropriate motion.
B. The Affirmative Defense of Limitation Under 46 U.S.C. § 183 Comes to State Court
In 2001, the Supreme Court made available in the state fora, one of the most effective weapons in the maritime defense attorney’s arsenal. In Lewis v. Lewis & Clark Marine, Inc. 121 S.Ct. 993 (2001) the court held that a state court was competent to adjudicate the vessel owner’s claim for limitation liability under 46 U.S.C. § 181. The court held:
[B]oth courts erred in failing to recognize that the state court was competent to hear the employer’s personal injury [Jones Act] claim and the vessel owner’s claim for limitation.
Lewis and Clark Marine, Inc., 121 S.Ct. at 1001.
This effectively overrules Vatican Shrimp. However, it may also be argued that the court’s considerations in Lewis and Clark Marine have tempered the more all-inclusive approach taken by the following state courts in Mapco & Howell. Eight years prior to the Supreme Court’s Lewis and Clark’s decision, the similar issues were reviewed by the Supreme Court of Tennessee in Mapco Petroleum, Inc. v. Memphis Barge Line, Inc., 849 S.W.2d 312 (Tenn. 1993). Memphis Barge maintained that the Fifth Circuit’s Vatican Shrimp Company case misinterpreted the Limitation Act and the U. S. Supreme Court cases discussing it. Similarly, the Fourth Circuit Court of Appeals in Louisiana also held that a state court had jurisdiction over the affirmative defense of limitation set forth in 46 U.S.C. § 183. Howell v. American Casualty Co., 691 So.2d 715, 731 (La App.4th Cir. 1997) (“The benefits of Section 183 can also be obtained by raising the limitation by way of answer to a suit commenced in state court against a vessel or its owner.”)
C. Jones Act Suits are Non Removable (Generally)
It is well settled as a general rule that Jones Act cases are not removable. Burchett v. Cargill, Inc., 48 F.3d 173, 175 (5th Cir. 1995) reh’g denied, 55 F.3d 634 (5th Cir. 1995). The Jones Act incorporates the general provisions of FELA, and FELA expressly bars removal of suits brought thereunder. 28 U.S.C. § 1445(a). As a result, the fact that diversity and federal question jurisdiction may exist, the shipowner sued under the Jones Act in state court must stay there. The courts have held that general maritime claims such as unseaworthiness and maintenance and cure appended to a Jones Act claims, also must remain in state court. Not surprisingly, clever plaintiff’s counsel have tried to make Jones Act seamen out of many types of workers such as helicopter pilots, fumigators, and pure platform workers. The courts have recognized a limited exception to non-removability of Jones Act suits in cases where Jones Act status was plead solely to defeat removal. A fraudulently plead Jones Act claim does not bar removal and “defendants may pierce the pleadings to show that the Jones Act claim has been fraudulently pleaded to prevent removal.” Burchett, 48 F.3d at 175. The Burchett court cautioned against trying a case solely to determine removal of jurisdiction, but authorized district courts to “use a summary judgment-like proceeding for disposing of fraudulent pleading claims.” Burchett, 48 F.3d at 176. Therefore, the removability is ultimately decided when responding to the plaintiff’s motion to remand. In that regard, the Fifth Circuit has held that the court may deny remand only where it determines “no reasonable basis for predicting that the plaintiff might establish liability” under the Jones Act. Burchett at 176. In doing so, courts are instructed to resolve all disputed questions of fact, and ambiguities in the controlling substantive law, in the plaintiff’s favor.
A recent example of this is the Fields v.Pool Offshore, Inc. cited previously in the section on Jones Act seaman status. In that case, the plaintiff filed his suit in state court. Defendants filed a Notice of Removal on the basis of diversity of citizenship and, alternatively, federal question arguing the case arose out of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et. seq. The defendant argued, and the court agreed, that the Jones Act was fraudulently plead to defeat removal
in that the plaintiff was not a Jones Act seaman and had no substantial connection to any vessel as the Neptune Spar was deemed a fixed platform, and not a ship. Fields, 182 F.3d at 355. Another method of defeating removal, is to plead the claimant is an employee of a Jones Act defendant, when not a bona fide employee of that defendant. Often in the offshore oil context, there may be four to five contractors employing people aboard one offshore structure. Defense counsel should review the pleadings and the facts of the particular operation carefully. If the plaintiff has not plead borrowed servant, and the requisite factors for establishing such simply do not exist, the fact that he has plead himself to be an employee of a defendant who did not employee him may well fit in the fraudulent pleading category and permit removal.
V. PROCEDURAL TOOLS, PRESUMPTIONS, BURDENS OF PROOF.
There are several burden shifting procedural rules one can employ to shift the burden of proof or, in some cases alter it, in admiralty cases. Many of these rules were developed in pure collision cases, but are also applicable where collisions result in personal injuries.
A. The Pennsylvania Rule
In The Pennsylvania, the U.S. Supreme Court held that if a claimant can prove that a vessel violated a statute or regulation concerning marine safety, the burden shifts from the plaintiff to the defendant shipowner of “showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” The Pennsylvania, 86 U.S. (19 Wall.) 125, 136 22 L.Ed. 148 (1874). This case originally developed in a pure collision situation but has also been applied to personal injury situations. Where there is proof of violation of a statute or regulation pertaining to navigation or marine safety, and the injury suffered was one which the statute was designed to prevent, the rule is applicable. Being a defendant who has to prove that a violation of statute on its vessel “could not have been” a cause of the plaintiff’s injuries is an extreme burden to overcome. As one can see, this places an onerous burden upon a defendant.
The Fifth Circuit has provided some relief from the Pennsylvania Rule. In Tokio Marine & Fire Insurance Co. v. The M/V Flora, the court held that The Pennsylvania Rule applies “only to violations of statutes that delineate a clear legal duty, not regulations that require judgment or assessment of a particular circumstance.” The Flora, 235 F.3d 963, 966 (5th Cir. 2001). The Flora court indicated that the Pennsylvania Rule applies only in cases where a “precise and clearly defined duty” is mandated by the relevant statute, not when the statute “calls for the use of interpretation and judgment.” The Flora, 235 F.3d at 967. In The Flora, the court found the fact that the offending vessel had violated Navigation Rule 5 (the duty to keep a lookout at all times - 33 U.S.C. § 1602) and Navigation Rule 8(c) (duty to avoid collision - 33 U.S.C. § 1602) did not give rise to the burden shifting application of the Pennsylvania Rule. These Rules require the use of discretion and judgment.
B. The Rule of The Oregon
There is also a presumption that applies in allision cases. A personal injury plaintiff injured in an allision can rely on the Rule of the Oregon to create a presumption in his favor. In The Oregon, 15 S.Ct. 804 (1895), the Supreme Court held that when a vessel under its own power strikes a stationary object, the burden of proving the absence of fault rests with the moving vessel. This situation often arises when a maritime plaintiff is injured on a dock or platform struck by a ship, or a berthed vessel struck by a moving one. There are not many defenses available to maritime defense counsel in such instances. One worth investigating is whether the stationary structure itself was in violation of statute when the incident occurred. If it was, the Pennsylvania Rule operates to shift the burden of fault back from the vessel to the stationary object. Practically speaking, in such a case, the liability between the parties will be allocated proportionally according to degree of fault under the comparative fault scheme adopted by the Supreme Court for use in maritime tort as stated in United States v. Reliable Transfer Company, Inc., 95 S.Ct. 1708 (1975). Examples where a stationary object can be in violation of a statute when struck by a moving vessel include offshore platforms whose lights are not illuminating them, offshore platforms that do not have the fendering system required by federal regulations, and anchored or stationary vessels that are moored in excluded or prohibited zones.
C. Venue
In 1995, the Texas legislature added a provision in the Texas Civil Practice and Remedies Code for mandatory venue in Jones Act cases. Section 15.018 applies to Jones Act cases and requires all suits brought under it to be filed in: (1) the county in which a substantial part of the events occurred, (2) the county of the defendant’s principal office in the state, or (3) the county where the plaintiff resided at the time the cause of action accrued. Practically speaking, a seaman’s injuries often occur on the ocean outside of Texas. Suit must then be filed where the defendant or plaintiff resided. In federal court, venue in a Jones Act case may be governed by the general venue statute, 28 U.S.C. § 1404. The Jones Act itself provides that “jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.” In Pure Oil Co. v. Suarez, 86 S.Ct. 1394, 1395 (1966) the court stated that “jurisdiction” refers only to venue and that statutes referring to residence are to be construed in terms of the “expanded general venue statute, 28 U.S.C. § 1391(c).” Therefore venue in a Jones Act case is proper in any district in which the defendant is subject to personal jurisdiction. 28 U.S.C. § 1391(c).
D. Preferential Trial Setting
It is generally agreed on both sides of the bar that live witnesses usually are more effective. Unfortunately for defense counsel, his witnesses work on ships and are often transient, or still employed at sea. Although rarely used, the Texas Government Code gives a party in a Jones Act case the right to a preferential trial setting. Section 23.101 of the Code mandates that trial courts in Texas shall give “preference to hearings and trials” of various claims, including the Jones Act. Tex. Gov. Code § 23.101(a)(5). Of course, plaintiff’s counsel is also free to utilize the same provision when seeking to drag an unwilling maritime defendant to trial.
E. Federal Maritime Law Comes to State Court: Subject Matter Jurisdiction and Choice of Law.
Although many maritime claims may be adjudicated in state court, state courts are required to adjudicate these claims using federal, and not state, substantive law. See e.g., Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406 (Tex. 1998) cert. denied, 119 S.ct. 541 (1998) (in Jones Act case, the court noted that when a “state court hears an admiralty case, that court occupies essentially the same position occupied by a federal court siting in diversity: the state court must apply substantive federal maritime law but follow state procedure.”); See also Texaco Ref. & Mkt., Inc. v. Estate of Dau Van Tran, 808 S.W.2d 61, 64 (Tex. 1991) cert. denied sub nom. Estate of Dau Van Tran v. Texaco Ref. & Mkt., Inc. 112 S.Ct. 301 (1991). In order to insure this right, the defense counsel must preserve the maritime law in the state forum by pleading it. In General Chemical Corp. v. De La Lastra, 852 S.W. 2d 916 (Tex. 1993) cert. dismissed, 114 S.Ct. 490 (1993), the Texas supreme court again recognized that “when invoked, maritime law becomes the exclusive remedy under which a party may proceed, pre-empting all state law grounds of recovery.” De La Lastra at 919. The court did note, however, the right to use the maritime law can be waived if not properly invoked. In that case, the court found that the defendant had waived the application of maritime law by failing to object to evidence and jury questions regarding damages which were recoverable only under state law. (Id. at 920). The maritime defendant is advised to plead the application of the federal maritime law in its state court answer.
F. Admiralty Jurisdiction and Why May That Be Important?
An example of how the interplay of state and federal remedies is litigated is found in a recent case involving a seaman who hacked his grandmother to death with an axe. In Crear v. Omega Protein, Inc., 2003 W.L. 2004440 (E.D. La 2003). Obedean’s head took a smack, and he gave grandma forty whacks. On May 14, 1998 Obedean Crear was hit in the head with a pipe while working on the M/V Williard P. Lebough. He filed suit under the Jones Act and general maritime law for head, neck and back injuries, mental illness, and loss of earnings. The case was relatively routine, until Obedean hacked his grandmother to death with a hatchet at her home in Moss Point, Mississippi on June 24, 1999. A Mississippi criminal jury found him “not guilty due to insanity.”
Eight of grandma’s children filed the suit on their behalf, and as representatives of grandma’s estate, alleging the actions of Obedean were caused by the head injury and the defendant’s failure to provide him with prompt and proper maintenance and cure. This caused insanity and resulted in grandma’s dissection. The plaintiffs sought compensatory damages for the loss of their mother, as well as punitive damages under Mississippi state law.
The defendant filed a Motion to Dismiss under Rule 12(b)(6) arguing that the elements of damages sought (loss of society/punitive damages) were not recoverable under the general maritime law. The defendant also asserted that because the plaintiff was a “Jones Act seaman, maritime law prohibits state law from supplementing the general maritime law and providing additional remedies to plaintiffs.” The court seemed troubled by the fact that the negligent/unseaworthy act occurred on navigable waters, with granny being hacked a year later on dry land. Turning to the Admiralty Extension Act (46 U.S.C. § 740), the court noted that the “location” test for admiralty jurisdiction is satisfied if the negligent act occurred on navigable water or if the injury suffered on land was caused by a vessel on navigable water (citing Jerome B.Grubart, Inc. v. Dredge & Dock Co., 115 S.Ct.1043, 1048-49 (1995). The court then discussed the Supreme Court’s refinement of this issue in Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 93 S.Ct. 493 (1972), and Sisson v. Ruby, 110 S.Ct. 2892 (1990). According to the district court, this refinement includes “a nexus” or “maritime flavor” element. The court found this to exist as the alleged negligence involved a vessel on navigable waters which would have a “potential disruptive impact on commercial activity.” Further, the general conduct from which the incident arose (unseaworthiness and negligence aboard the vessel and alleged failure to fulfill the duty of maintenance and cure) clearly bears a substantial relationship to a traditional maritime activity. Turning to the temporal element, the court noted that the Supreme Court had recently rejected the argument that the damage suffered must be close in time and space to the complained of activity. (citing Grubart at 1049).
The court also recognized Motts v. M/V Greenwave, 210 F.3d 565, 571 (5th Cir. 2000) which held the Death on The High Seas Act applicable even if negligence begins at sea and death or damages occur on land.
G. Damages
Defendants then asserted that plaintiff’s claims fell within admiralty jurisdiction and thus state law was pre-empted. According to the defendants because “ Mr. Crear was a seaman, state law may not supplement the general maritime law.” The court made the obvious distinction - while plaintiff was a Jones Act seaman, granny was not. Citing Yahama Motor Corp. v. Calhoun, 116 S.Ct. 619 (1996), the court reiterated the Supreme Court’s differentiation “between seafarers – Jones Act seamen and . . . non-seafarers. Since Congress had not prescribed remedies for the wrongful death of non-seafarers in territorial waters, the court concluded that state statutes were applicable to them.” The court closed this loop by stating in the present case, the plaintiff sought damages for the wrongful death of grandma, “a non-seaman whose death occurred on land. Yahama teaches, that where, as here, plaintiffs’ claims stem from the death of a non-seafarer, and Congress has not prescribed a comprehensive remedy for such claims, state law may supplement general maritime law.” Crear v. Omega Protein at 2594 (citing In re Plaquemine Towing Corp., 190 F.Supp.2d. 889, 893 (M.D. La. 2002)).
Considering Yamaha, one can envision instances where plaintiff’s counsel may want to prove their maritime plaintiff a non-Jones Act seaman to make available more generous categories of damages available under state law. Yamaha involved a young girl riding a jet ski who had a collision with a ship. The plaintiff was permitted to seek the full available damages, including non-pecuniaries.
VI. TORT REFORM GOES TO SEA
Both sides of the bar are well aware of current tort reform activities at the state legislature and elsewhere. As a practical matter, it is unlikely that tort reform in the form of caps on awards for pain and suffering will become relevant to maritime personal injury litigation. Practically speaking, the only tort reform that the maritime personal injury litigation has been subject to is the Supreme Court’s 1990 decision of Miles v. Apex Marine Corp., 111 S.Ct. 317 (1990). In Miles v. Apex, a galley hand was murdered by a fellow crew member while the vessel was docked in Washington State waters. Wrongful death and survival actions were brought alleging negligence under the Jones Act and breach of the warranty of seaworthiness under the general maritime law. The court reviewed the Death on the High Seas Act as well as the Jones Act, two statues enacted by Congress that allow for recovery of pecuniary damages only. The claimants in Miles were seeking loss of society, a non-pecuniary claim under the general maritime law. As Congress had denied recovery for the non-pecuniary damages under the Jones Act and DOSHA, the court felt compelled to deny such recovery under the general maritime law. Miles at 325-28.
As punitive damages are non-pecuniary in nature, various state and federal courts have generally concluded that Miles also prohibits the award of punitive damages for Jones Act seamen under the general maritime law. See, e.g., Penrod Drilling Corp. v. Williams, 868 S.W.2d 294 (Tex. 1993); Guevara v. Maritime Overseas Corp., 59 F.3d 1496, 1507 (5th Cir. 1995) cert. denied, 116 S.Ct. 706 (1996); and Bell v. Zapata Haynie Corp., 855 F.Supp. 152 (W.D. La. 1994). With regard to congressional action limiting the amount of damage awards in maritime personal injury actions, such is unlikely. The United States Congress has shown little interest in legislating the maritime personal injury field of late.
VII. FEDERAL REGULATION
A. Federal Regulation No Longer Preempts State Common Law Causes of Action in Recreational Boating Cases
In Sprietsma v. Mercury Marine, 123 S.Ct. 518 (2002), a passenger died after falling from a boat and being struck by propellor blades of an outboard engine. An action was filed against the engine designer alleging the engine should have been equipped with propellor guards. Previously, all such common law causes of action had been dismissed on the grounds that the Federal Boat Safety Act pre-empted common law tort claims, and the Act did not require propellor guards. The Supreme Court found that the FBSA by its own terms did not expressly a pre-empt state common law claims, and further that the Coast Guard’s decision not to regulate propellor guards did not implicitly preempt common law claims.
The court found that Section 10 of the FBSA (preemption clause) was intended to preempt performance standards and equipment requirements imposed by state statute or regulation. It was not intended to preempt state tort actions against a manufacturer. Sprietsma, 123 S.Ct. at 528-30.
The FBSA had given the Coast Guard the authority to enact regulations in the field of small boating safety. In 1990 the Coast Guard decided not to regulate propellor guards. In some cases, a decision not to regulate can be deemed “authoritative” message of federal policy against a regulation of an issue, in this case propellor guards, so as to preempt state laws regulating such things. 46 U.S.C. § 4301. In this case, the court found that the Coast Guard’s explanation for its decision not to regulate propellor guards revealed only that the available data did not meet the FBSA’s stringent criteria for federal regulation. The 1990 decision did not convey an authoritative message of federal policy against propellor guards, and thus implicit preemption did not exist. Id.
This decision was advantageous to maritime personal injury claimants asserting state law claims against engine manufacturers for failure to provide propellor guards.
B. OSHA Versus the Coast Guard: OSHA Wins
In Chao v. Mallard Bay Drilling, Inc., 122 S.Ct. 738 (2002), the Supreme Court rejected the Fifth Circuit’s ruling that the Coast Guard had exclusive authority of the working conditions on uninspected and inspected vessels. Instead, the court held that on uninspected vessels, OSHA regulations may be applicable (and used against the defendant) in areas where the Coast Guard has not actively regulated.
On June 16, 1997, four employees of Mallard Bay Drilling, Inc. (“Mallard”) were killed and two other employees were seriously injured when an explosion occurred on a barge drilling a well in the territorial waters of Louisiana. The Coast Guard conducted an investigation of the incident and concluded that Mallard had not violated any Coast Guard regulations. The Occupational Health and Safety Administration (“OSHA”) also conducted an investigation and cited Mallard for three violations of the Occupational Safety and Health Act for (1) failure to promptly evacuate employees after the explosion, (2) failure to develop an adequate emergency response plan and (3) failure to train employees to respond to an emergency. An ALJ upheld the citations and the Occupational Safety and Health Review Commission declined review of the ALJ’s decision. The U.S. Fifth Circuit reversed and found Mallard’s employees were seamen and emphasized the Coast Guard has exclusive authority over the working conditions of seamen - even those working on uninspected vessels.
The U.S. Supreme Court reversed. The Court focused on the active exercise by another agency of its power to control workplace conditions to the pre-emption of OSHA. Specifically, the Court concluded the Coast Guard had engaged in a limited exercise of its authority to regulate working conditions on uninspected vessels and, therefore, OSHA’s regulation of uninspected vessels had not been pre-empted. The Court noted although the Coast Guard regulates fire extinguishers, life preservers and emergency floating equipment on uninspected vessels, these regulations fail to address overall safety and health. Since the Coast Guard does not affirmatively regulate working conditions on uninspected vessels, the Court observed, OSHA properly exercised its jurisdiction over the uninspected drilling barge. The Court stated, and OSHA conceded, the Coast Guard sufficiently regulates safety and health on inspected vessels as to pre-empted OSHA regulation.
In maritime personal injury litigation, as in land based tort claims, it is advantageous to a plaintiff to prove a violation of statute and then argue negligence per se and/or the Pennsylvania Rule. For many years, there has been great debate in the courts over maritime personal injury claimants’ attempts to use OSHA regulations in marine cases. The Fifth Circuit and other courts generally ended the debate by finding OSHA regulations not applicable to uninspected vessels. In light of the Chao decision, litigants seeking to argue the applicability of OSHA or Coast Guard regulations to an uninspected vessel will now be retaining experts and discovering facts to show that the regulatory body of their choice had actively regulated whatever factor played a part in bringing about plaintiff’s injury. Pre-injury regulation may now be an additional issue that will be discovered and litigated during the pretrial phase of maritime personal injury cases.
C. Emergency Evacuation Plan: A Duty to Plan, Not Execute
In In Re: Graham Offshore, Inc., 287 F.3d 352 (5th Cir. 2002) involved a litigation of the duties imposed by the Coast Guard’s Emergency Evacuation Plan (EEP). 33 C.F.R. §§ 146.140, 146.210 requires the operator of a facility on the Outer Continental Shelf to prepare and submit a plan governing the evacuation of personnel from the facility to shore. In In Re: Graham, Texaco had chartered a mobile offshore drilling rig from Transocean for drilling on the Outer Continental Shelf. Texaco also contracted with boatowner Graham Offshore to provide transportation services to and from the rig. In July 1997, Texaco and Transocean, who operated the rig for Texaco, decided to evacuate workers from the rig due to tropical storm Danny. Texaco contacted the boat owner, Graham, and asked it to make the trip to the rig to evacuate non-essential workers. The captain misread the available weather information, and proceeded out to the rig. On the way back to shore, the boat encountered foul weather and ran aground. Several of the passengers were injured and filed suit. The trial court found that Texaco and Transocean had a legal duty to transport the rig workers safely to shore, despite the fact that the transportation function was carried out by the contractor/crewboat owner, Graham. The Fifth Circuit addressed legal duties owed by Transocean and Texaco. The Fifth Circuit found that the EEP does not create legal duties in of itself. Its purpose is to require offshore operators to foresee and document possible emergency evacuation scenarios. The Court clearly stated EEP imposes a duty of documentation, not execution. The court refused to hold the EEP as affixing a legal responsibility on any party to the offshore drilling operation.
D. Can the Federal Government Tell a Texan How to Drive His Ski Boat?
Texans enjoy the great outdoors, and many do so on the water. Water sport enthusiasts in our state include sailors, fishermen, and water skiers. You may be confronted with a situation where one of these recreational vessels has a collision with another. There was no stop sign, red light, or double yellow line to cross – how do you advise your client as to who may be at fault? The Texas Water Safety Act (“TWSA”), codified in the Parks and Wildlife Code § 31 (V.T.C.A. 2003) applies to all vessels operating upon the public waters of our state. It excludes vessels on privately owned waters. The current TWSA is effective until August 31, 2005.
The Texas Legislature has made a policy decision that the basic authority for enacting boating regulations is reserved to the state. It did, however, adopt the federal navigation rules that were enacted by Congress and promulgated by the United States Coast Guard. Section 31.093 of the TWSA states that “the United States Coast Guard’s inland rules apply to all public water (sic) of the state to the extent that they are applicable.” The United States Congress enacted the current Inland Navigation Rules in 1981. They are codified at 33 U.S.C. 2001-2038 (“Inland Navigation Rules Act of 1980”). The United States Coast Guard is charged with implementing the Inland Navigation Rules, and has done so in Title 33 of the Code of Federal Regulations (“Navigation in Navigable Waters”). The jurisdictional provisions of the Inland Navigation Rules hold them applicable to all internal and inland waters of the United States “shoreward of the territorial sea baseline.” The only inland waters excluded from the application of the Inland Navigation Rules are the Great Lakes, the Mississippi River above the Huey P. Long Bridge, and the Red River of the North. 33 C.F.R. § 2.05-20.
Texas peace officers and game wardens are certified marine safety enforcement officers and have authority to enforce all TWSA provisions, including the applicable Inland Navigation Rules. TWSA § 31.121; see also Seals vs. State, 2000 WL 34251158 (Tex. App.- Corpus Christi 2000) (Texas parks and wildlife wardens have responsibility to enforce the TWSA). Statutory violations of the TWSA are penal in nature, and may be used to establish negligence per se if the provision violated was designed to protect the class or persons ultimately injured. Zevala v. Trujillo, 883 SW.2d 242 (Tex. App.-El Paso 1994, no writ).
Therefore, when the injured water skier limps into your office, one must keep in mind that a negligence per se claim may exist based upon the Inland Navigation Rules and TWSA. Depending on whether or not admiralty jurisdiction also lies, the Pennsylvania Rule may also be applicable.
As one can see, a basic understanding of the Inland Navigation Rules is important for both plaintiff and defense counsel who find themselves litigating an inland marine collision that results in personal injuries. Navigating a waterway is like driving in a parking lot – there are no lanes, traffic lights, stop signs, or well defined intersections. The vessels’ actions are governed by the Inland Navigation Rules which, while relatively simple, have differing applications dependent upon the relative positions of the vessels involved. A brief primer of the Rules is therefore helpful.
The author has litigated many collision cases. He has never litigated an automobile case. In collision cases, it is extremely rare for one of the parties in a collision to be blameless. In the great majority of collision cases, both vessels are found to bear a percentage of fault.
Having said that, the following is a synopsis of the more common Rules of the Road encountered in collision situations.
Subpart I - General Rules
Rule 5 - Lookout
This rule requires every vessel to maintain a proper lookout by sight and hearing as well as by all available means (radar if appropriate).
Rule 6 - Safe Speed
Every vessel shall at all times proceed at safe speed so it can be stopped in a distance appropriate to prevailing circumstances. Factors that shall be considered when determining safe speed include the state of visibility, traffic density, the maneuverability of the vessel, the state of the wind, sea, and current, proximity of navigational hazards, and draft of the vessel in relation to depth of water.
Rule 7 - Risk of Collision
Every vessel shall make use of all available means (including radar) to determine if risk of collision exists. If it does, Rule 8 (Action to Avoid Collisions) comes into play.
Rule 8 - Action to Avoid Collisions
Any action to avoid collision shall be taken in ample time and with due regard to good seamanship. Alterations of course or speed shall be large enough to be readily visible to other vessels by sight or radar. If necessary to allow more time to assess the situation, a vessel shall slacken its speed or take all way off by stopping or reversing its engines.
Rule 9 - Narrow Channels
This rule is similar to the rule governing cars on a highway. Each vessel is to stay as near as possible to the outer limit of the channel that is on its right, or starboard side. Vessels of less than 20 meters shall not impede the progress of large vessels that can navigate only within the narrow channel. Vessels shall avoid anchoring in narrow channels.
Subpart II - Conduct of Vessels in Sight of One Another
This subpart applies to all vessels in sight of one another and governs the actual maneuvering of these vessels.
Rule 12 - Sailing Vessels
When two sailing vessels are approaching one another to involve risk of collision, one shall stay out of the way of the other as follows: (1) when each has the wind on a different side, the vessel with the wind on the port side shall keep out of the way of the other; (2) when both have the wind on the same side, the vessel which is to windward shall keep out of the way of the vessel to leeward, and (3) if a vessel with the wind on the port side sees a vessel to windward and cannot determine whether the other vessel has the wind on the port or starboard side, it shall keep out of the way of the other.
Rule 13 - Overtaking situations
A vessel shall be deemed to be overtaking another when coming upon that vessel from the direction more than 22.5 degrees “abaft” (behind) of its beam. When in doubt as to whether you are overtaking another vessel, you shall assume that you are. The overtaking vessel is required to keep out of the way of the vessel that is being overtaken.
Rule 14 - Head-on Situation
When two power driven vessels are meeting on reciprocal or nearly reciprocal courses, each shall alter course to starboard and pass the other down its port side.
Rule 15 - Crossing Situation
When two power driven vessels are crossing to avoid risk of collision, the vessel which has the other on her starboard side shall keep out of the way, and shall, if possible, avoid crossing ahead of the other vessel.
Rule 16 - Action by Give-Way Vessel
Any vessel which is directed to keep out of the way of another is the “give-way” vessel and shall take early and substantial to do so.
Rule 17 - Action by Stand on Vessel
Where one of two vessels is required to keep out of the way, the other vessel shall maintain her course and speed. If it becomes apparent to it, that the vessel required to keep out of the way is not taking appropriate action, it may take action to avoid collision. If it becomes apparent that the vessel required to keep her course and speed is so close to collision that the collision cannot be avoided by the action of the give way vessel alone, it shall take such action as her best to avoid collision.
Rule 18 - Responsibility Between Vessels
This rule sets forth the hierarchy of vessels by type. This hierarchy determines which vessel has the “right of way.” A power driven vessel underway shall keep out of the way of sailing and fishing vessels. A sailing vessel under way shall keep out of the way of a vessel engaged in fishing. A vessel engaged in fishing shall keep out of the way of a vessel not under command and a vessel restricted in its ability to maneuver.
There are many other Inland Navigation Rules that govern vessels’ conduct in restricted visibility as well as the lights and shapes required to be displayed on various vessels. They should also be consulted when the collision occurs at night, or in a time of reduced visibility.
VIII. PROSECUTING/DEFENDING A LONGSHORE PERSONAL INJURY CASE AT THE U.S. DEPARTMENT OF LABOR OWCP
When a longshoreman is injured, the Employee files a Notice of Injury Form (Form LS-201) with the District Director at the Office of Workers’ Compensation Programs (“OWCP”) within 30 days of the incident. The Employer (or Carrier, if an adjuster handles the claims for the Employer) then files a Form LS-202, or the Employer’s First Report of Injury or Occupational Illness. If the Employee is medically deemed unable to work for a period exceeding 14 days, then the Employer/Carrier must controvert the Employee’s right to worker’s compensation using the Form LS-207 within 28 days of receiving the Employee’s LS-201. At that point, the Employer/Carrier is not obligated to pay worker’s compensation to the Employee. Often, the Employee will employ an attorney to represent his interests, and his attorney will request that OWCP investigate the claim. A Claims Examiner at OWCP will informally gather medical documentation from the parties and make a recommendation. The Claims Examiner also holds an Informal Conference with the parties to determine whether the matter can be solved amicably. If the parties are still in disagreement, or contest the Claims Examiner’s findings, either party can file an LS-18 and formally request the matter be transferred to the Office of Administrative Law Judges (“OALJ”) for a formal hearing. Under Section 19 of the Longshore Act, 33 U.S.C. § 919, OWCP must refer the matter to OALJ upon formal request of either party.
A. OALJ
The file is send to OALJ’s Headquarters in Washington, D.C., where it is docketed and then sent to the OALJ District Office nearest the residence of the Employee/Claimant. In Texas, that District Office is located in Metairie, Louisiana. The file is then assigned by the District Chief Administrative Law Judge to an Administrative Law Judge (“ALJ”) in that office. The ALJ will issue a Notice of Formal Hearing and Pre-Hearing Order to the parties. The hearings usually take place in a federal courthouse near the residence of the Claimant. The Pre-Hearing Order often requires the parties to submit a list of issues on which they stipulate and on which they contest.
Before the date of the formal hearing, the parties may jointly request that the matter be referred to a settlement judge. The settlement judge is an ALJ who acts as a mediator. His recommendations are non-binding and confidential among the parties.
At the formal hearing, the parties present evidence – both documentary and by oral presentation – to the ALJ. The ALJ is required to make all his decisions and orders via the Administrative Procedures Act. Therefore, there are no “bench rulings” at formal hearings; all the ALJ’s decisions and orders will be written with findings of fact and conclusions of law. At the conclusion of the formal hearing, the ALJ will gather all the evidence accepted into the record and begin work on a Decision and Order.
B. The ALJ’s Decision and Order - The 20(a) Presumption
The Section 20(a), 33 U.S.C. Section 920(a), presumption dictates that a claimant's disabling condition is causally related to his employment. In order to invoke the Section 20(a) presumption, a claimant must prove that he suffered a harm and that conditions existed at work or an accident occurred at work that could have caused, aggravated or accelerated the condition. Merrill v. Todd Pacific Shipyards Corp., 25 BRBS 140 (1991). A claimant's credible subjective complaints of symptoms and pain can be sufficient to establish the element of physical harm necessary for a prima facie case and the invocation of the Section 20(a) presumption. See Sylvester v. Bethlehem Steel Corp., 14 BRBS 234, 236 (1981), aff'd sub nom. Sylvester v. Director, OWCP, 681 F.2d 359, 14 BRBS 984 (5th Cir. 1982).
Once the 20(a) presumption is invoked, the burden shifts to the employer to rebut the presumption with substantial evidence to the contrary which establishes that a claimant's employment did not cause, contribute to or aggravate his condition. Conoco, Inc. v. Director, OWCP, 194 F.3d 684, 690, 33 BRBS 187, 191 (CRT) (5th Cir. 1999). "Substantial evidence" means evidence that reasonable minds might accept as adequate to support a conclusion. E & L Transport Co. v. N.L.R.B., 85 F.3d 1258 (7th Cir. 1996). The employer must produce facts, not speculation, to overcome the presumption of compensability. Reliance on mere hypothetical probabilities in rejecting a claim is contrary to the presumption created by Section 20(a). See Smith v. Sealand Terminal, 14 BRBS 844 (1982).
When aggravation of or contribution to a pre-existing condition is alleged, the presumption still applies, and in order to rebut it, an employer must establish that the claimant's condition was not caused or aggravated by his employment. Rajotte v. General Dynamics Corp., 18 BRBS 85 (1986).
C. Nature and Extent of the Claimant’s Disability
If the employer fails to rebut the presumption, the claimant has established a prima facie case of disability. He now has the burden of proving the nature and extent of his disability. Trask v. Lockheed Shipbuilding Construction Co., 17 BRBS 56, 59 (1980).
Disability is generally addressed in terms of its nature (permanent or temporary) and its extent (total or partial). The permanency of any disability is a medical rather than an economic concept. Disability is defined under the Act as an "incapacity to earn the wages which the employee was receiving at the time of injury in the same or any other employment." 33 U.S.C. 902(10). Therefore, for the claimant to receive a disability award, an economic loss coupled with a physical and/or psychological impairment must be shown. Sproull v. Stevedoring Servs. of America, 25 BRBS 100, 110 (1991). Thus, disability requires a causal connection between a worker's physical injury and his inability to obtain work. Under this standard, a claimant may be found to have either suffered no loss, a total loss or a partial loss of wage earning capacity.
Permanent disability is a disability that has continued for a lengthy period of time and appears to be of lasting or indefinite duration, as distinguished from one in which recovery merely awaits a normal healing period. Watson v. Gulf Stevedore Corp., 400 F.2d 649, pet. for reh'g denied sub nom. Young & Co. v. Shea, 404 F.2d 1059 (5th Cir. 1968)(per curiam), cert. denied, 394 U.S. 876 (1969). A claimant's disability is permanent in nature if he has any residual disability after reaching maximum medical improvement. Trask, 17 BRBS at 60. Any disability suffered by the claimant before reaching maximum medical improvement is considered temporary in nature. Berkstresser v. Washington Metropolitan Area Transit Authority, 16 BRBS 231 (1984).
The question of extent of disability is an economic as well as a medical concept. Rinaldi v. General Dynamics Corporation, 25 BRBS 128, 131 (1991). To establish a prima facie case of total disability, the claimant must show that he is unable to return to his regular or usual employment due to his work-related injury. Harrison v. Todd Pacific Shipyards Corp., 21 BRBS 339 (1988); Louisiana Insurance Guaranty Association v. Abbott, 40 F.3d 122, 125 (5th Cir. 1994). A claimant's present medical restrictions must be compared with the specific requirements of his usual or former employment to determine whether the claim is for temporary total or permanent total disability. Curit v. Bath Iron Works Corp., 22 BRBS 100 (1988). Thus, a claimant with a partial disability has some wage-earning capacity and will not be compensated at his previous compensation rate. The burden of proving the claimant’s wage-earning capacity is on the employer/carrier. Once a claimant is capable of performing his usual employment, he suffers no loss of wage earning capacity and is no longer disabled under the Act.
The traditional method for determining whether an injury is permanent or temporary is the date of maximum medical improvement. Stevens v. Lockheed Shipbuilding Company, 22 BRBS 155, 157 (1989). The date of maximum medical improvement is a question of fact based upon the medical evidence of record. Ballesteros v. Willamette Western Corp., 20 BRBS 184, 186 (1988). An employee reaches maximum medical improvement when his condition becomes stabilized. Thompson v. Quinton Enterprises, Limited, 14 BRBS 395, 401 (1981).
D. Medical/Surgical Benefits
Pursuant to Section 7(a) of the Act, the employer/carrier is also liable for all medical expenses which are the natural and unavoidable result of the work injury. In order for the employer/carrier to be liable for a claimant's medical expenses, the expenses must be reasonable and necessary. Parnell v. Capitol Hill Masonry, 11 BRBS 532, 539 (1979). A claimant has established a prima facie case for compensable medical treatment where a qualified physician indicates treatment is necessary for a work-related condition. Turner v. Chesapeake & Potomac Tel. Co., 16 BRBS 255 (1984). Section 7 does not require that an injury be economically disabling in order for claimant to be entitled to medical benefits, but only that the injury be work-related and the medical treatment be appropriate for the injury.
An employer found liable for the payment of compensation is responsible for those medical expenses reasonably and necessarily incurred as a result of a work-related injury. Perez v. Sea-Land Services, Inc., 8 BRBS 130 (1978). Entitlement to medical benefits is never time-barred where a disability is related to a compensable injury. Weber v. Seattle Crescent Container Corp., 19 BRBS 146 (1986). If a work injury aggravates, exacerbates, accelerates, contributes to, or combines with a previous infirmity, disease or underlying condition, the entire resultant condition is compensable. Strachan Shipping Co. v. Nash, 782 F.2d 513 (5th Cir. 1986).
E. The Order
At the end of his conclusions of law, the ALJ will issue an Order essentially summarizing his conclusions and either ordering the employer/carrier to pay compensation and/or medical benefits to the claimant based on his findings or denying the claimant’s request for benefits. If the claimant won benefits, the ALJ will allow the claimant’s attorney to file a petition for attorney’s fees (usually within 30 days of the decision and order being served on the parties). The ALJ will then allow the employer/carrier’s attorney a chance to respond and object to the attorney fee petition (usually within 20 days of the claimant’s counsel filing his petition).
F. Appeal of the ALJ’s Decision and Order
If either party disputes the ALJ’s decision and order, there are two options. First, a Motion for Reconsideration can be filed with the ALJ. Second, an appeal can be taken to the Benefits Review Board (“BRB”) in Washington, D.C. Appeals of the BRB are lodged with the federal circuit court of appeals for the circuit in which the claimant resides. Appeals of the circuit courts are made directly to the U.S. Supreme Court.
IX. CONCLUSION
Maritime personal injury litigation is interesting and enjoyable. While similarities pervade all Jones Act cases, each one is factually unique. To make matters even more interesting, the prevailing legal winds often blow in various directions. A defendant faces legal standards and presumptions that put it at a disadvantage when compared to litigation of similar land-based injuries. Plaintiff’s counsel must also be wary of various navigational hazards, or their litigious voyage may come to a deep and watery end.
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