RECENT MARITIME LAW DEVELOPMENTS: FIFTH, NINTH & TENTH CIRCUITS Joseph D. Terry Terry & Thweatt, P.C. Houston, Texas Jones Act Personal Injury Attorney Facebook.com/TerryandThweatt
Mr. Clausen worked onboard the F/V BERING STAR as 2/E when he injured hislower back, neck, and hand while lifting a 122-pound piece of steel.After reporting the injury to Icicle, he went ashore in Alaska for initial medical careand was eventually sent home to Louisiana for further care and was unable to work.Plaintiff encountered persistent difficulties in getting Icicle and its adjusting firm tomeet its obligation to pay him maintenance and cure during his recovery, whichamounted to $20 a day.Plaintiff resorted to living in a recreational vehicle with a leaking roof and with noheat, air conditioning, running water, or toilet facilities.
• Additionally, Icicle delayed or refused to pay for treatment that Plaintiff‟s doctors recommended, despite the fact that the adjusting firm confirmed to Icicle that the injuries were likely career-ending and recommended settlement before Plaintiff secured legal representation.• Plaintiff‟s doctor wrote Icicle advising of need for ESIs and was a candidate for back surgery, but letter was never disclosed to Plaintiff.• Icicle subsequently filed suit in federal court to terminate M&C alleging Plaintiff impeded their right and obligation to investigate claim.• Plaintiff retained counsel who filed suit in state court seeking damages for Icicles negligence under the Jones Act, unseaworthiness, and wrongful withholding of maintenance and cure.
The jury found Icicle negligent under the Jones Act, awarding Plaintiff$453,100 in damages. The jury also found that Icicle was callous or willfuland wanton in its failure to pay maintenance and cure, awarding Plaintiff$37,420 in compensatory damages for maintenance and cure plus $1.3million in punitive damages for Icicles willful misconduct. The trial courtawarded $387,558.00 in attorney fees and $40,547.57 in costs.The Court noted that the “egregious conduct” of the vessel owner includedthe fact that Icicle refused to pay for medical care and surgery that Icicle‟sown “hand-picked” doctor had recommended and that Icicle provided only$20 per day in maintenance when it knew Plaintiff was living in adilapidated recreational vehicle.
The award of punitive damages was at approximately a 3:1 ratio to thecompensatory damages award. The Court found that an award of punitivedamages for wanton and willful failure to pay maintenance and cure is notcapped at the 1:1 ratio of punitive damages to compensatory awardapproved by Exxon v. Baker and that the culpability of the vessel owner‟sconduct may justify an award that results in a higher ratio.Icicle‟s conduct was deemed not just reprehensible, but egregious and thesize of the award was required because Icicle needed deterrence not to treatother workers in the same way.
Are punitive damages available under the Jones Act and/or generalmaritime law in the context of a wrongful death/survival action, or apersonal injury action, for seamen who were killed or injured in Louisianaterritorial waters after the decision of Atlantic Sounding Co., Inc. vs. Townsend?Both In re Osage Marine Services, 2012 U.S. Dist. LEXIS 28483 (E.D. Mo.2012) and Wagner v. Kona Blue Water Farms, 2010 AMC 2469 (D. Hi.2010) held that punitive damages were recoverable in unseaworthinesscauses of action.On March 9, 2011, the barge Estis Rig 23 was operating in Louisiana, whena pipe in the derrick shifted as the crew was attempting to straighten thetwisted monkey board in the derrick, causing the derrick and rig to fall over,leaving one crew member dead and three more injured.
Defendant filed a Rule 12(b) (6) motion regarding the Plaintiff‟s claim forpunitive damages.Plaintiffs argued that Townsend left open the question as to whetherpunitive damages are available under the Jones Act, while Exxon ShippingCo. v. Baker made punitive damages available under general maritime law(unseaworthiness).Plaintiffs also argued Townsend, which abrogated the en banc decision ofGuevara v. Maritime Overseas Co. reinstated the holding of In Re MerryShipping as controlling precedent, permitting the recovery of punitivedamages.
The Court opined that Townsend: “does not hold that punitive damages are recoverable under the Jones Act” “does not call into question Miles’ holding concerning the damages limitations applicable to the Jones Act” “does not … cast doubt on the [Miles] Court‟s holding that the Jones Act incorporated FELA‟s „pecuniary limitation on damages.‟”The Court, citing the Miles v. Apex decision, also held that notwithstandingfederal statutory schemes including the Clean Water Act and the Jones Act,that punitive damages are a viable remedy afforded under the generalmaritime law only for (1) a maritime tort suffered by non-seamen and (2)the failure to pay maintenance and cure to seamen.Punitive damages are not available in an unseaworthiness claim.
In November 2006, Plaintiff worked for Defendant as a licensed engineeraboard the dive vessel M/V JILLIAN MORRISON.
In January 2008, Plaintiff, aboard another dive vessel owned by Defendant,left it abruptly and was hospitalized for ulcerative colitis, diabetes, and aliver condition. He did not return to work.Plaintiff brought Jones Act, unseaworthiness, and maintenance and cureclaims against Defendant for his injuries.Prior to trial, the district court granted Plaintiff‟s motion in limine toexclude evidence as to reduced charges paid by his insurer to satisfy hismedical bills.Following trial, the district court ruled against Plaintiff‟s Jones Act/generalmaritime law claims but awarded maintenance and cure and attorneys‟ feesfor obtaining that relief.
In an issue of first impression, Defendant challenged the application of thecollateral-source rule to determine the amount of cure awarded and arguedon appeal the cure award should not have included the difference betweenthe amount Plaintiff‟s medical providers charged and the lesser amountthey accepted from his insurer as full payment.While noting the collateral-source rule‟s widely accepted application toprohibit reduction of compensatory damages in tort actions, the Courtobserved that no-fault maintenance and cure is an implied term of contractsuch that normal rules of damage are not strictly applied.
Nevertheless, the Court cited to its opinion in Gauthier v. Crosby MarineServ., Inc. for an exception to the relaxed-damages standard: “[w]here aseaman has alone purchased medical insurance, the shipowner is notentitled to a set-off from the maintenance and cure obligation moneys theseamen receives from his insurer.”Though Defendant could cite no pertinent case law, nor could the Courtfind any, the Court referenced prior precedent limiting recovery ofmaintenance and cure to “expenses actually incurred,” then held that theappropriate award of cure was “that [amount] needed to satisfy[Manderson‟s] medical charges.” The district court erred by awarding thehigher amount charged by the providers rather than the amount negotiatedby Plaintiff‟s insurer.This reduced the award of cure from $169,691.06 to $71,085.79.
Loss of consortium available to injured seaman?
Plaintiff was employed as a longline deckhand on the F/V ZENITH, whichexperienced numerous Freon leaks from April 2008 into the early season of2009 due to blown and damaged hoses.Despite higher than normal readings of Freon levels, the Captain orderedthe crew to continue working for several days before returning to port.It was determined that Plaintiff had suffered permanent damage to hislungs in the form of chronic dyspnea.
Plaintiff‟s wife filed a loss of consortium claim under her husband‟sunseaworthiness claim, and Defendant filed a motion to dismiss this claimunder Rule 12(b)(6), arguing that loss of consortium was not a cognizableclaim for suits brought under the general maritime law.The Court allowed the seaman‟s wife to recover for loss of consortium,reasoning that under Townsend such remedies as were traditionallyavailable under maritime law could be recovered on maintenance and cureand unseaworthiness claims.The Court found that because unseaworthiness was a well-established causeof action prior to the enactment of the Jones Act, nothing in the Jones Actdisplaces such a claim nor limits the remedies available therein, thus theJones Act does not preclude recovery for the loss of consortium claim.
Mendez, an Anadarko employee, was injured while working on the REDHAWK spar, which is a floating gas-production platform moored to theocean floor by large anchors in the seabed some 5,000 feet below andlocated approximately 210 miles from Sabine Pass, Texas.
The spar had been moored in Red Hawk Field at Garden Banks blocks 876and 877 since 2004.The mooring lines were permanently taut so that the spar could not movelaterally. There was also an underwater infrastructure of flow lines andexport pipeline systems, as well as umbilicals extending from the spar to thesubsea wellheads.The Coast Guard classified the spar as an "industrial vessel" and theCertificate of Inspection stated that the spar was "considered a floatingfacility with passive ballast systems."
Plaintiff filed Jones Act claim in state court, which Defendant removed tofederal court under OCSLA, arguing that the Jones Act claim did notprevent removal because Plaintiff did not qualify as a seamanDistrict court denied motion to remand after determining Plaintiff was nota Jones Act seaman and granted Defendant‟s motion for summaryjudgment on the same ground and entered final judgment in favor ofDefendant.
The Fifth Circuit opined that the spar was not a Jones Act vessel becausethe spar was permanently affixed to the sea floor and could only be movedafter detaching the substantial moorings and pipelines that were joined toits structure.A relocation study showed at most that the spar was theoretically capable ofmaritime transportation but not practically capable, as the Defendant hadno plans to move the spar, but doing so would take approximately 50 daysand cost over $42 million.
Cruise line have unlimited duty to warn passengers?During the time that the cruise ship was anchored in Cabo San Lucas onMexicos Baja Peninsula, Plaintiff and his family visited nearby Lover‟sBeach on their own upon suggestions of ship‟s staff.Plaintiff was seriously injured by turbulent wave action while in the PacificOcean at Lover‟s Beach.
Plaintiff sued Defendant alleging the cruise line breached its duty to warnhim of the dangers associated with swimming at the beach.According to Defendant, approximately 96,000 passengers sailed on theirships calling on Cabo San Lucas in 2008, no injuries reported.Plaintiff retained two experts to provide evidence that swimming in thewater on the Pacific Ocean side of the beach was commonly knownthroughout the cruise-line industry to be dangerous.
The district court struck Plaintiff‟s experts and granted summary judgmentholding Defendant had no duty to warn Plaintiff because the conditionswere open and obvious and because there was no evidence of particularlyhazardous conditions or of prior accidents at that location.Ninth Circuit opined it was not an abuse of discretion to strike expertsdeclarations because one expert was unable to provide any materials fromthe cruise-line industry to support his statement and he did not contact anyother comparable cruise lines to inquire whether they warned passengerswhile the other expert failed to specify in her declaration what informationshe relied on in reaching her conclusions.The Court further opined that Defendant had no duty to warn Plaintiffabout swimming at the location because it had neither actual norconstructive notice of a dangerous condition.
United States v. California State Lands Commission, No. 10-56568 (9th Cir., June 12,2012) Exercise of eminent domain by federal government extinguishes the state‟s public trust rights.Ceres Gulf v. Plaisance, No. 11-60456 (5th Cir., June 4, 2012) While the petitioner in a LHWCA claim enjoys a presumption in favor of the validity of his claim, he always bears the burden of proof once the employer introduces substantial evidence to overcome that presumption.Gulf Restoration Network v. Salazar, No. 10-60411 (5th Cir., May 30, 2012) Environmental advocacy groups could not challenge Dept. of the Interior‟s approvals of deepwater drilling since they did not participate in administrative proceedings i.e. public comment period.Atchafalaya Basinkeeper v. Chustz, No. 11-30471 (5th Cir., April 25, 2012) Private causes of action brought by citizens for alleged violations of a federal statute are not to be inferred and are only allowed if clearly authorized by Congress.
Joe Terry, co-founder of Terry & Thweatt, P.C.,where he focuses his national practice onrepresenting individuals involved in maritimeand offshore accidents, 18-wheeler accidents,burn and brain injury matters as well asserious personal injury and wrongful deathmatters.Joe has extensive trial experience and hasobtained a number of substantial verdicts andsettlements for his clients, including numerousmulti-million dollar recoveries.