Prepared By Tom Langan forSTEVEDORES, MARINE TERMINALS & VESSEL SERVICES COMMITTEE

CASE LAW UPDATE - MLA FALL 2015 MEETINGOctober 20-24th, 2015

Fairmont, Southampton, Bermuda

LegislativeSenator Robert P. Casey (D-PA) introduced S. 2096, "Black Lung Benefits Improvement Act of2015" on September 29, 2015. The bill is meant to ensure that claims for benefits under theBlack Lung Benefits Act are processed in a fair and timely manner, to better protect miners frompneumoconiosis (commonly known as "black lung disease"), and for other purposes. The billcurrently has four co-sponsors and was referred to committee.

On July 8, 2015, HR 2976, entitled “Amend the Code for Marriage Equality Act of 2015,” wasintroduced by Rep. Lois Capps (D-CA). The bill would, among other things, amend theLongshore and Harbor Workers Compensation Act to remove the references to “wives” and“husbands” in the Act (§§ 2(16), 5(a), 8(d)(1)(D) and 9(d) and ((g)) and replace those terms withthe word “spouse.”

It looks as though the bills attempting to make South Carolina an exclusive jurisdiction state [seemy Spring 2015 Case Law Update] are dead for at least another year, but perhaps it was ablessing in disguise. The last revision of the language in H. 3396 was a bigger boondoggle thanconcurrent jurisdiction. In summary it said: Section 42-1-378: This title does not apply to anemployee who suffers an injury on or after July 1, 2016, for which there is jurisdiction undereither the Longshore and Harbor Workers’ Compensation Act…unless the employee suffersdeath where there are no financial dependents or sustains a non-scheduled injury underthe LHWCA, or any of its extensions. The amended language above would have created awhole new bifurcated trial at the beginning of the claim to determine if the employee suffered anon-scheduled injury before getting into the merits of the claim. It appears as though the effort todo away with concurrent jurisdiction in South Carolina is on ice until January 2016. My thanksto Stan Henslee and Brian McElreath for this update on the legislation.

RegulatoryOn May 18, 2015, the U.S. Department of Labor published the final text of regulationsgoverning practice and procedure for proceedings before the Office of Administrative LawJudges (OALJ). A Notice of Proposed Rulemaking was published in the Federal Register onDecember 4, 2012 requesting public comment on proposed revisions to and reorganization ofthese regulations. The revisions make the regulations more accessible and useful to parties. Therevisions also harmonize administrative hearing procedures with the current FRCP and with thetypes of claims now heard by OALJ. The Department received sixteen comments to the proposedrule. The final rule responds to those comments and establishes the final text of the revised

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regulations. The revised regulations are effective June 18, 2015.

Department of LaborRichard Stanton has resigned from his position as Chief, Branch of Financial Management,Insurance and Assessments, at OWCP Longshore, to accept the position of Director, RiskManagement at BAE Systems Ship Repair in Norfolk, VA.

Effective October 1, 2015, the new National Average Weekly Wage is $703.00, a 2.10%increase over last year. This means that the new maximum weekly compensation rate under theLongshore Act is $1,406 (twice the NAWW), and the new minimum weekly compensation rateis $351.50 (one-half the NAWW).

The Director, OWCP has filed a Federal Respondent Brief in the case of Ceres MarineTerminals, Inc. V. Director, OWCP, et al. [Samuel P. Jackson], which is currently pending in theFourth Circuit Court of Appeals. The brief poses the question, “Is a psychological disabilitycompensable under the LHWCA if the incident giving rise to the disability did not physicallyharm the employee or pose a danger of physically harming him?”

The Director, OWCP has filed a Federal Respondent Brief in the case of Deltide Fishing andRental Tools, Inc. v. Director, OWCP, et al. [Shannon Hamil], which is currently pending in theFifth Circuit Court of Appeals. The brief poses the question, “Whether the employee's death bynarcotics overdose was a natural result of his workplace injury where he became addicted tonarcotics during the treatment of that injury.”

Industry Notice 152 outlines the procedures to follow if you wish to take advantage of anoptional electronic alternative to the statutory requirement that mandates delivery of orders viaregistered or certified mail. The Industry Notice also announced to new OWCP forms to be used if you wish to take advantage of this new email delivery option for service of compensationorders:

C LS-801 (Waiver of Service by Registered or Certified Mail for Employers and/orInsurance Carriers) is to be used by Employers, Insurance Carriers, and theirrepresentatives.

C LS-802 (Waiver of Service by Registered or Certified Mail for Claimants and AuthorizedRepresentatives) is to be used by claimants and their representatives.

Both forms may be submitted through the SEAPortal, and they may be accessed on the Divisionof Longshore and Harbor Workers’ Compensation (DLHWC) website.

OWCP has revised its mandatory forms LS-207, Notice of Controversion, and LS-208, Notice ofFinal Payment or Suspension of Compensation Payments. The changes are described in IndustryNotice 151, but include the following:

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C Revised LS-207 reorders the list of parties and addresses, adding a back page withinstructions requiring that a copy of the form be mailed to the injured employee (andlegal representative, if any), and eliminating the requirement that the form be submittedin triplicate.

C Revised LS-208 reorganizes the report of payments made on account of death and otherpayments, expands the report of payments made on scheduled permanent partialdisability awards, and adds a back page to provide additional instructions. As with theLS-207, the signing of the LS-208 serves as confirmation that a copy was mailed to theinjured employee and his attorney if represented.

Both forms also include information for electronic submission through SEAPortal for easier andmore efficient transmission. The new forms are available on the Division of Longshore andHarbor Workers’ Compensation website.

The membership of the Benefits Review Board has changed significantly. Following theappointment of Greg J. Buzzard in December 2014, Judge Regina McGranery retired on May 29,2015, after having served on the Board for 31 years. On April 13, 2015, Judge Betty Jean Hallwas named the Chair and Chief Administrative Appeals Judge. Ryan C. Gilligan was appointedVice Chair and Administrative Appeals Judge on May 4, 2015. Prior to his appointment, JudgeGilligan operated his own law firm, which focused on litigation consulting. He spent the earlypart of his career litigating federal black lung claims.

U.S. West Coast Longshore workers have overwhelmingly voted to ratify a tentative contractagreement reached in February with employers represented by the Pacific Maritime Association(PMA). Members of the International Longshore and Warehouse Union (ILWU) voted 82percent in favor of approving the new 5-year agreement that will expire on July 1, 2019. Theprevious contract was ratified in 2008 with a vote of 75 percent in favor. The contract, which isretroactive to July 1, 2014, runs through June 30, 2019. It was also approved earlier this monthby most of the 71 companies that make up the PMA.

Supreme Court of the United StatesSUPREME COURT SAYS NO ADDITIONAL FEE FOR DEFENDING FEE PETITIONBAKER BOTTS LLP ET AL. V. ASARCO LLC

In this bankruptcy case, ASARCO LLC hired law firms, pursuant to §327(a) of the BankruptcyCode, to assist it in carrying out its duties as a Chapter 11 debtor in possession. When ASARCOemerged from bankruptcy, the law firms filed fee applications requesting fees under §330(a)(1),which permits bankruptcy courts to “award . . . reasonable compensation for actual, necessaryservices rendered by” §327(a) professionals. ASARCO challenged the applications, but theBankruptcy Court rejected ASARCO’s objections and awarded the law firms fees for time spentdefending the applications. ASARCO appealed to the district court, which held that the law firmscould be awarded fees for defending their fee applications. The Fifth Circuit reversed, holding

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that §330(a)(1) did not authorize fee awards for defending fee applications. The U.S. SupremeCourt granted the petition for certiorari filed by the law firm, but held that §330(a)(1) does notpermit bankruptcy courts to award fees to §327(a) professionals for defending fee applications. The Court noted that the American Rule provides the basic point of reference for awards ofattorney’s fees, which is each litigant pays his own attorney’s fees, win or lose, unless a statuteor contract provides otherwise. Congress did not depart from the American Rule in §330(a)(1)forfee-defense litigation, which authorizes “reasonable compensation for actual, necessary servicesrendered.” The word “services” ordinarily refers to labor performed for another. Thus, the phrase“reasonable compensation for services rendered” necessarily implies loyal and disinterestedservice in the interest of a client. The Court concluded that time spent litigating a fee applicationagainst the bankruptcy estate’s administrator could not be fairly described as “labor performedfor”—let alone “disinterested service to”—that administrator. (U.S. Supreme Court, June 15,2015) 2015 U.S. LEXIS 3920Updater Note: While not a Longshore case, this recent opinion may have significant relevancein the Longshore arena, where plaintiff law firms routinely seek additional fees for defendingtheir fee applications. Thanks to Ken Engerrand, of Brown Sims, Houston, TX, for bringingthis opinion to my attention.

On September 23, 2015, a petition for writ of certiorari was filed with the U.S. Supreme Court inthe case of Escobar v. Celebration Cruise Operator, Inc., Docket No. 15-371. The questionspresented are: 1. Whether an arbitration provision in an employment contract can require anindigent employee to pay for the costs of arbitration? 2. Whether seafarers' contracts ofemployment are exempted from the application of Title 9, the Federal Arbitration Act, includingChapter 2 of the Title which implemented the Convention on the Recognition and Enforcementof Foreign Arbitral Awards? 3. Whether arbitration clauses in seafarers' employment contractsshould not be enforced by courts because they act as a prospective waiver of U.S. statutoryrights?

On October 5, 2015, the U.S. Supreme Court denied the petition for certiorari in the case ofMeche v. Doucet, et al., Docket No. 14-1459. This was a case in which the petitioner, WillieMeche, was attempting to challenge application and viability of the McCorpen doctrine.

On July 30, 2015, a petition for writ of certiorari was filed with the U.S. Supreme Court in thecase of Kawasaki Kisen Kaisha, Ltd. V. Plano Molding Co., Docket No. 15-157. The questionspresented are: Whether th[e] Court should resolve the uncertainty in maritime contractingcreated by a conflict between a Seventh Circuit decision herein and a Second Circuit decision.The Second Circuit decision in Sompo Japan Ins. Co. of America v. Norfolk Southern Ry. Co.followed the agency rule of Kawasaki Kisen Kaisha, Ltd. v. Regal-Beloit and Norfolk SouthernRy. Co. v. James N. Kirby, that cargo interests making maritime transportation contracts withintermediaries are bound by those intermediaries' subcontracts. The Seventh Circuit rejected therule and nullified the pertinent terms of petitioners' contract with respondent's intermediary forocean and inland transportation. Second is the important federal question of whether, in theinterest of public safety and in accord with other maritime contract burden of proof rules, whencargo delivered to a carrier in a container under a maritime transport contract may be the engine

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of a casualty, cargo interests who warrant safe cargo loading should have the burden of provingprima facie that the cargo was safely loaded in the container before it was delivered to thecarrier.

On July 30, 2015, a petition for writ of certiorari was filed with the U.S. Supreme Court in thecase of State of Veracruz v. BP, PLC.(In Re: Deepwater Horizon), Docket No. 15-155. The caseinvolves several issues of first impression at the Court: 1. Whether the Fifth Circuit erroneouslyapplied principles of federalism and the "proprietary interest" requirement under Robins DryDock & Repair Co. v. Flint, 275 U.S. 303 (1927) ("Robins Dry Dock") against the MexicanStates in such a manner as to preclude them (or any political entity, for that matter) frommaintaining a maritime action to recover damages from entities that pollute their shores. 2.Whether the proprietary interest principle established in Robins Dry Dock & Repair Co. v. Flint,275 U.S. 303 (1927) applies to causes of action arising, at least in part, from admitted criminalconduct. 3. Whether the Fifth Circuit's judgment that Petitioners, as states of the United States ofMexico, (i.e., the federal Mexican Republic), do not possess a necessary proprietary interestconflicts with the Ninth Circuit's opinion in City of Sausalito v. O'Neil, 386 F. 3d 1186, 1197(9th Cir. 2004) and/or Robins Dry Dock. 4. Whether there [6] existed genuine issues of materialfact with respect to Petitioners' proprietary interests based on Mexican federal and state law andPetitioners' summary judgment evidence demonstrating that Petitioners own, possess, control,manage, regulate, govern, maintain, repair, exploit, and otherwise exert dominion over thenatural resources, wildlife, beaches, islands, and other geographical areas at issue. 5. Whetherthe mere filing of a pleading by a third party (i.e, the United Mexican States) without anyjudicial rulings, findings, or anything else can be used as a basis for upholding summaryjudgment on the grounds that Petitioners do not have proprietary interests even though suchreliance contravenes Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

On May 18, 2015, the U.S. Supreme Court denied the petition for certiorari in the case ofMcBride, et al. v. Estis Well Services, LLC, Docket No. 14-761. The question presented forreview was, “Whether seamen may recover punitive damages for their employer’s willful andwanton breach of the general maritime law duty to provide a seaworthy vessel, as held by theNinth and Eleventh Circuits, or are punitive damages categorically unavailable in an action forunseaworthiness, as held by the First, Fifth, and Sixth Circuits and the Texas Supreme Court?”

Circuit Courts

1st Circuit

FIRST CIRCUIT ADDRESSES SEXUALLY INAPPROPRIATE WORKPLACE BEHAVIOR PÉREZ V. HORIZON LINES, INC., ET AL.

Horizon Lines, Inc. terminated Vladimir Pérez for engaging in sexually inappropriate workplaceconduct. After he was terminated, Pérez then sued both Horizon and Grace Acevedo, thecompany's HR manager, claiming that his termination was unjust and that he had been the victim

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of sexual harassment by Acevedo. The district court granted the defendants' motion for summaryjudgment. Pérez timely appealed the district court’s judgment, faulting the district court forconcluding that there were only four instances of alleged sexual harassment. After reviewing therecord, the appellate court found that the defendants, Horizon and its human resources manager,were properly granted summary judgment on Pérez’s Title VII sexual harassment claim based ona quid pro quo theory because the undisputed record failed to support an inference that certainalleged requests were sexual demands directed at Pérez that he could have been punished forrebuffing. Additionally, the appellate court found that defendants were properly grantedsummary judgment on the employee's Title VII sexual harassment claim based on a hostile workenvironment theory, because Pérez failed to supply any evidence from which a jury could inferthat the HR manager's requests were sufficiently severe or objectively offensive to proveactionable or that they unreasonably interfered with Pérez’s work performance. Ultimately, theappellate court found nothing in the record to support an inference that Horizon’s reason forterminating Pérez's employment was anything other than Pérez's own conduct. Accordingly,because Pérez had failed to rebut Horizon's showing of just cause, the district court correctlygranted summary judgment to the defendants. The appellate court affirmed the district court'sgrant of the shipping company's motion for summary judgment. (1st Cir, September 30, 2015)2015 U.S. App. LEXIS 17210Updater Note: Although there is nothing in this case unique to the maritime industry, it mayserve as a cautionary lesson for more careful monitoring of workplace behavior. The EEOC canbe a bothersome organization, that seem to revel in its harassment of employers.

CAB TO THE GROCERY STORE CAN BE A ZONE OF SPECIAL DANGER UNDER DBABATTELLE MEMORIAL INSTITUTE, ET AL. V. DICECCA, ET AL.

Gerald DiCecca was hired by Battelle Memorial Institute (BMI) as a facility engineer in itsTbilisi, Georgia laboratory. BMI was acting as a subcontractor working for the U.S. Departmentof Defense on countering the threat of biological weapons. DiCecca's formal hours were 8 a.m.to 5 p.m., but he was always on call to come in outside of normal working hours. BMI'slaboratory included neither housing accommodations nor a restaurant, and employees wereprovided instead with a housing and utilities allowance, with no restrictions on where they couldlive. BMI provided taxi vouchers for employees that did not have cars. DiCecca was traveling toa grocery store in a taxi when it was hit head-on by another car, whose driver was apprehendedon suspicion of drunk driving. DiCecca died from his injuries. DiCecca’s widow filed a claim fordeath benefits under the defense Base Act extension of the LHWCA. The ALJ received evidenceand held in her favor. BMI appealed, and the Board affirmed the award. BMI took furtherappeal, arguing that DiCecca was not in a “zone of special danger” at the time of his death. Theappellate court cited O'Leary v. Brown-Pacific-Maxon, 340 U.S. 504, to support its applicationof the "zone of special danger" principle, noting all that is required is that the obligations orconditions of employment create the zone of special danger out of which the injury arose.O'Leary called the agency's determination of whether a particular injury falls within the zone ofspecial danger a "question of fact," describing this expansive conception of what is factual bycalling the conclusion in question one that "concerns a combination of happenings and theinferences drawn from them." The appellate court found that the ALJ addressed the proper

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inquiry under O'Leary, focusing on the foreseeability of the injury given the conditions andobligations of employment in a dangerous locale. DiCecca lived and worked in a dangerouslocale as evidenced by the employer's payment of a hardship allowance/danger pay. BMIprovided its employees taxi vouchers each month for use with a specific cab company, andpermitted its employees to utilize the cab service for any reason within a certain radius. The fatalaccident, thus, also was a foreseeable, "if not foreseen," consequence of riding in a taxi in a placewhere the dangers of automobile travel were anticipated by employer. Although BMI attemptedto mitigate the danger, it had failed to cite any circumstances that could warrant a legalconclusion that DiCecca’s activity was not rooted in the conditions of his employment or was"thoroughly disconnected" from the service of employer. The appellate court affirmed affirm theALJ’s findings that the zone of special danger doctrine applied and that DiCecca’s death wascompensable under the Act. The order of the Benefits Review Board was affirmed. (1st Cir, July6, 2015) 2015 U.S. App. LEXIS 11587

3rd Circuit

CHALLENGE TO LEASE TERMS UNDER CONSTITUTIONAL & ADMIRALTY LAWMAHER TERMINALS, LLC V. PORT AUTHORITY OF NEW YORK & NEW JERSEY

In this case, the U. S. Court of Appeals for the Third Circuit ruled that one of the largest marineterminal operators at the Port Authority of New York and New Jersey could not challenge one ofthe terms of its lease under constitutional and admiralty law. In a precedential 2-1 ruling, theappellate court upheld a trial judge's decision to dismiss the claims filed by Maher TerminalsInc., which alleged that a part of its contract violated the Tonnage Clause of the U.S.Constitution. To come within the zone of interests of the Tonnage Clause, U.S. Const. art. I, §10, cl. 3, the appellate court found that it was necessary to allege an injury to a vessel as avehicle of commerce. A landside marine terminal operator challenging the rent it owed under alease with the Port Authority could not state a claim under the Tonnage Clause because its injurywas not an injury to a vessel or its representative. Additionally, the appellate court found that theMaher could not state a claim under the Rivers and Harbors Appropriation Act because the Actapplied only to taxes and fees imposed on or collected from vessels, their passengers, or theircrews. Finally, the appellate court found that Maher failed to state a claim under the WaterResources Development Act, which applied only to fees on vessels and cargo, and the PortAuthority never purported to impose rent pursuant to the WRDA. Judge Michael Fisher, joinedby Judge Patty Shwartz, said, "We doubt the framers intended the Tonnage Clause to sweep sobroadly as to transform these and other landlord-tenant disputes into constitutional questions,especially given the conspicuous absence of vessel and cargo owners from this case complainingabout the fees they are paying at the Port of New York and New Jersey." Judge Kent Jordandissented in part, saying Maher had made a plausible claim of a constitutional violation thatshould be explored further. The court affirmed the district court’s judgment. (3rd Cir, October 1,2015) 2015 U.S. App. LEXIS 17243

4th Circuit

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AGGRAVATION RULE FORCES BACK CONDITION ON SUBSEQUENT EMPLOYERCERES MARINE TERMINALS, INC. V. DIRECTOR, OWCP, ET AL. [WALLACE]

Anthony Wallace was working as a longshoreman for Tartan Terminals when he allegedlyinjured his back by stepping into a hole. Tartan paid Wallace temporary total disability benefitsfrom September 27 through December 3, 2010, and from December 17, 2010, through April 11,2011, when he was released to return to work without restrictions. Wallace thereafter worked forvarious employers. On November 13, 2011, claimant worked for Ceres Marine Terminals, liftingand throwing luggage. Wallace claimed that this work caused pain in his back, and he went tothe hospital for treatment on November 16 and 19. Wallace worked for Ports America onNovember 14 and 17, 2011, directing traffic. Wallace filed a claim for benefits on September 26,2012, and he underwent low back surgery, a laminectomy and fusion at L3-L4 and L4-L5, inNovember 2012. The parties stipulated to the compensability of claimant’s injury, but contestedwhich employer was the responsible employer. Following a formal hearing, the ALJ found thatCeres was the responsible employer, as the evidence established that the 2011 injury aggravated,accelerated, or combined with the 2010 condition to result in claimant’s disability and need forsurgery; the ALJ rejected Ceres’s argument that Wallace’s condition was the natural progressionof his 2010 injury. The administrative law judge awarded Wallace temporary total disabilityfrom November 18, 2011 to January 22, 2013, and medical benefits payable by Ceres. Ceresappealed the finding that it is the responsible employer. Tartan, Ports America, and Wallaceresponded to the appeal, urging affirmance. The BRB found that the ALJ weighed the conflictingmedical opinions regarding the effect of the Ceres incident on claimant’s back condition, andaddressed the relevant evidence, rationally assessed the credibility and weight to be given to theopinions, and explained his reasons for concluding that the injury at Ceres aggravated the priorback condition. The ALJ credited the medical opinion that the 2011 incident aggravatedWallace’s back condition. The ALJ properly stated, under the aggravation rule, a second injuryneed only aggravate, exacerbate, or combine with a prior condition and result in a disability to becompensable. There is no requirement that the second injury fundamentally or permanently alterthe underlying condition, as a worsening of a claimant’s symptoms is sufficient. As the recordcontained substantial evidence supporting the ALJ’s finding that the injury in 2011 aggravatedand/or combined with claimant’s back condition following his 2010 injury at Tartan, resulting inhis disability and the need for surgery, the Board affirmed the ALJ’s decision. Ceres timelyappealed to the circuit court, which also affirmed in a short per curiam opinion, noting that itsreview of the record disclosed that the ALJ and the Board applied the proper legal standard, andthe ALJ's decision was based upon substantial evidence. Accordingly, the appellate court deniedthe petition for review. (4th Cir, August 13, 2015, UNPUBLISHED) 2015 U.S. App. LEXIS14208

APPELLATE COURT REVERSES AWARD OF ADDITIONAL COMPENSATIONHUNTINGTON INGALLS INDUSTRIES, INC. V. EASON, ET AL.

Ricky Eason allegedly injured his right knee while employed as a pipe fitter at Newport NewsShipbuilding and Dry Dock Company, now known as Huntington Ingalls Industries, Inc. (HIII),and was eventually diagnosed with a torn meniscus requiring surgery, keeping Eason completely

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out of work from October 2, 2008 through June 28, 2009. As a result, HIII paid Eason temporarytotal disability benefits for this period, and Eason returned to work full-time as a pipe fitter.Eason was given a 14% lower extremity permanent impairment rating and HIII paid thescheduled award over a seven month period. During this period, Eason had continued complaintsrelated to his injured right knee and also his left knee. Although Eason was placed back onrestricted duty, HIII did not offer Eason light-duty employment within his restrictions. Inaddition, during this period, Eason did not seek suitable alternative employment within therelevant labor market. Eason eventually brought a claim against HIII for temporary totaldisability or, alternatively, temporary partial disability for the subsequent restricted duty period.In response, HIII argued that Eason reached maximum medical improvement and had receivedpermanent partial disability compensation under the schedule, and was not entitled to anyadditional temporary compensation--either total or partial--under PEPCO. At a formal ALJhearing, HIII stressed that Eason's scheduled compensation for his knee injury presumed hisactual loss of wage-earning capacity for that injury, such that any temporary compensation (totalor partial) sought for a flare up of that injury already was covered by the payments made underthe schedule. The ALJ agreed, holding that Eason reached maximum medical improvement inand the evidence did not support Eason's claim for additional compensation. On appeal, the BRBvacated the ALJ’s decision, holding that while Eason reached maximum medical improvement,this finding did not preclude the recovery of temporary partial disability compensation forEason's knee injury. Consequently, the BRB remanded the case to the ALJ to determine whetherEason's work restrictions prevented him from performing his usual work. If they did, the BRBstated, Eason would have established a prima facie case of temporary total disability. Onremand, a different ALJ found that Eason was not able to return to his usual work and concludedthat Eason was temporarily partially disabled from May 19, 2010 through August 20, 2010 andentitled to compensation. HIII appealed and the BRB affirmed. This timely appeal to the circuitcourt followed. HIII challenged the award of temporary partial disability benefits, arguing that aclaimant who receives scheduled compensation for a permanent partial disability cannotsubsequently receive additional temporary partial disability compensation because the receipt ofscheduled permanent partial disability compensation for an injury includes any temporary partialdisability compensation. The appellate court observed that, in the case of a scheduled permanentpartial disability that allegedly changes to a temporary partial disability because the claimant'sinjury flared up, there is no additional loss of wage-earning capacity. The claimant's loss ofwage-earning capacity already is accounted for under the schedule. The appellate court foundEason's argument, that the LHWCA permits the recovery of additional temporary partialdisability compensation, under the circumstances of this case is unpersuasive. There was norecord evidence supporting a reclassification of Eason's disability to a permanent total ortemporary total disability. His disability had remained permanent and partial throughout. Theappellate court found both Eason’s and HIII’s interpretation of PEPCO flawed, but noted thatthe PEPCO decision was not outcome determinative for either Eason or HIII. The case addresseda discrete issue, and the reasons advanced by Eason and HIII for an expansive reading of thedecision were not compelling. The appellate court granted the petition for review and remandedthe case to the BRB to enter an order dismissing Eason's claim for temporary partial disabilityunder the LHWCA. (4th Cir, June 2, 2015) 2015 U.S. App. LEXIS 9148

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SETTLEMENTS CAN’T BE MODIFIED AND NO FRAUD DEMONSTRATEDCOOPER V. DIRECTOR, OWCP [NORTHROP GRUMMAN SHIPBUILDING, INC.]

Francyne J. Cooper without the assistance of counsel, appeals the Decision and Order and theOrder Denying Claimant’s Petition for Reconsideration (2010-LHC-01657) of AdministrativeLaw Judge Kenneth A. Krantz rendered on a claim filed pursuant to the provisions of theLongshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §901 et seq. (theAct). In an appeal by a pro se claimant, we will review the administrative law judge’s decision todetermine if the findings of fact and conclusions of law are supported by substantial evidence,are rational, and are in accordance with law. If they are, they must be affirmed. 33 U.S.C.§921(b)(3); O’Keeffe v. Smith, Hinchman & Grylls Associates, Inc., 380 U.S. 359 (1965). Francyne J. Cooper allegedly injured her right arm and shoulder at work in 2007. NorthropGrumman Shipbuilding, Inc. paid Cooper temporary total disability benefits. The partiessubsequently agreed to settle Cooper’s claim under the Act for a lump sum payment of $22,500.The settlement settled the claim Cooper filed under the Virginia workers’ compensation statutefor an additional lump sum payment of $22,500, less attorney’s fees, such that claimant’s netrecovery under both statutes was $36,000. Cooper signed the Section 8(I) settlement agreementand another document entitled “Settlement Agreement and General Release,” agreeing to “settleall potential and/or outstanding claims arising out of her employment with Northrop. The districtdirector approved the Section 8(I) settlement as it was adequate and not procured under duress.The settlement agreement under the Virginia statute also was approved. In 2009, Cooper filedclaims for benefits under both the Longshore and Virginia Acts. Because she had not worked forNorthrop since 2007, her claim was interpreted as a request to modify her Section 8(I)settlement. The ALJ observed that a settlement under Section 8(I) is not subject to modificationunder Section 22 of the Act. Further, he found, even if a settlement is subject to modification dueto fraud, claimant did not present evidence of fraud. Therefore, the ALJ denied Cooper’s’s claimand Cooper’s motion for reconsideration. Cooper, proceeding pro se, appealed the ALJ’sdecisions, arguing that her attorney. She asserts that her attorney and Northrop’s counselconspired to deprive her of her rights. The BRB affirmed the ALJ’s finding that Cooper did notsubstantiate her claim that employer and/or her own counsel conspired to defraud her of benefitsunder the Act, holding the decision was rational and supported by substantial evidence. TheBoard affirmed the denial of Cooper’s claim and denied her motion for reconsideration. Onfurther appeal, the Fourth Circuit, in a short per curiam opinion, noted that its review of therecord disclosed that the Board's decisions were based upon substantial evidence and werewithout reversible error. Accordingly, the appellate court denied Cooper's motion to proceed informa pauperis and denied the petition for review. (4th Cir, May 11, 2015, UNPUBLISHED)2015 U.S. App. LEXIS 7734

5th Circuit

APPELLATE COURT AFFIRMS APPROVAL OF IATROGENIC BACK SURGERYPETRON INDUSTRIES, INC., ET AL V. DIRECTOR, OWCP [RYAN COURVILLE]

Ryan Courville filed a claim for benefits under the LHWCA against Petron Industries and its

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insurer, alleging that he injured his thoracic spine while lifting equipment aboard an inlandbarge. Courville’s initial treating physician reviewed an MRI of Courville’s thoracic spine andrecommended physical therapy but did not recommend surgical intervention. Seeking a secondopinion, Courville began treatment with orthopedic surgeon Dr. John Cobb who eventuallyrecommended surgery, as is typical for his iatrogenic practice. Courville sought Petron’sauthorization of surgical intervention for his spine injury, which Petron denied. Due to theconflicting recommendations regarding surgery, the District Director assigned an independentmedical examination of Courville. The IME physician diagnosed Courville with thoracic discdegeneration, but did not recommend surgical intervention and opined that Courville hadreached maximum medical improvement. Following a formal hearing, the ALJ ordered Petro topay for the surgery, which had been recommended by Courville’s treating physician. Following atimely appeal, the Benefits Review Board affirmed the ALJ’s order, deciding that it wassupported by substantial evidence and in accordance with the law. Petron took further appeal,arguing that the ALJ erred in weighing the evidence and misstated the law with regard to hisdiscretion to assess the weight of the evidence. After reviewing the record, the appellate courtheld that the BRB correctly found that the ALJ’s factual findings were supported by substantialevidence and that the ALJ did not misstate the law. The appellate court noted that the physiciansrecommending surgery only did so after attempting numerous alternative methods of treatment,none of which proved successful. In light of these facts and considering the record evidence as awhole, the appellate court found no error in the ALJ’s finding that surgical intervention was bothreasonable and necessary. The petition for review of the decision and order of the BenefitsReview Board was denied. (5th Cir, September 9, 2015, UNPUBLISHED) 2015U.S. App. LEXIS16230

COURT DECLINES TO AWARD SEAMAN STATUS TO LAND-BASED WELDER(CONT.)WILCOX, ET AL. V. MAX WELDERS, LLC, ET AL.

Joseph Wilcox alleged that he suffered injuries while performing welding services on a fixedplatform located on the Outer Continental Shelf, when undetected gases exploded as he waswelding inside a pipe on the platform. The welding work was performed pursuant to adecommissioning contract between the owner of the platform, Energy Resource TechnologyGOM, Inc. (ERT), and Wild Well Control, Inc, which is a subsidiary of Superior EnergyServices, Inc. Wild Well contracted with Max Welders, Wilcox’s employer, to provide weldersto assist with the demolition work. Wilcox filed suit seeking relief under the Jones Act and thegeneral maritime law or, alternatively, under the LHWCA, claiming that his injuries resultedfrom negligence on the part of Max Welders, Wild Well, and Superior, as well as theunseaworthiness of the barge. Max Welders argued that Wilcox was not a Jones Act seamanbecause he did not have the requisite connection to a vessel, or identifiable group of vessels, atthe time of the alleged accident; rather Wilcox was a land-based welder who had worked for 34different Max Welders customers, in connection with Max Welders jobs, in its yard, in inlandwaters, and offshore. Wilcox responded that he met the test for Jones Act seaman status becausehe was permanently reassigned to be a member of the crew of the barge for this particularassignment. The court concluded that Wilcox had failed to show that he qualified as a Jones Act

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seaman. Max Welders’ motion for summary judgment as to Wilcox’s claims under the Jones Actand the general maritime law was granted and those claims were dismissed with prejudice. Afterentry of the court’s judgment, Wilcox moved to alter or amend the court's order and reasonspursuant to FRCP 59(e). Max Welders filed an opposition to the motion, as did Wild WellControl and Superior Energy. Wilcox challenged the granting of summary judgment on the basisthat the court failed to take into consideration his relationship with his borrowing employer,Wild Well, and ignored the evidence regarding his reassignment. The court held that Wilcoxcould not use a Rule 59 motion to merely revisit issues that were previously decided and heldthat Wilcox had failed to demonstrate the motion was necessary to correct manifest errors of lawor fact upon which the original judgment was based. Accordingly, relief pursuant to Rule 59(e)was not warranted and Wilcox’s motion was denied. Wild Well subsequently filed a motion forsummary judgment with respect to Wilcox’s claims pursuant to §905(b) of the LHWCA, arguingthat because Wilcox was injured on a fixed platform, it was legally and factually impossible thathis injuries resulted from vessel negligence. Wild Well’s motion for summary judgment wasgranted and all of Wilcox’s claims pursuant to §905(b) of the LHWCA were dismissed withprejudice . Wilcox appealed the grant of summary judgment for Wild Well on Wilcox's JonesAct and general maritime law claims based on his seaman status. Wilcox argued that the districtcourt erred in its substantial-connection analysis by refusing to determine Wilcox's status byreference to his period of employment with Wild Well, rather than his entire employment withMax Welders. Wilcox did not appeal the grant of summary judgment on his LHWCA claims.Additionally, Wild Well and Superior appealed the grant of summary judgment for Max Welderson indemnity. The appellate court observed that the district court carefully analyzed and appliedNew v. Associated Painting Services, Inc. and noted that Wilcox's case presented facts that werestrikingly similar to those in New. Like the borrowed employee in New, Wilcox was notpermanently reassigned to work on Wild Well's vessel-the project was expected to last forapproximately two months. Nor did his essential duties change-his primary duty continued to bewelding. The appellate court found that Wilcox failed to point to any evidence suggesting afundamental change in status, which would allow assessment of the substantial-relation prongwith sole reference to Wilcox's time as a borrowed employee with Wild Well. The appellatecourt pointed out that, while he was employed by Max Welders, Wilcox worked for 34 differentcustomers on 191 different jobs, both offshore and onshore. Focusing on the essence of what itmeans to be a seaman, the appellate court declined to find that Wilcox demonstrated a genuineissue of material fact from which a reasonable jury could conclude that he qualified for seamanstatus under the Jones Act. Turning to the district court's grant of summary judgment to MaxWelders on Superior and Wild Well's indemnity claims, the appellate court held that Superiorand Wild Well had waived their argument for attorneys' fees, based on Melancon and Meloy, and affirmed the district court's summary-judgment holding that the MSA was void under theLouisiana Oilfield Anti-Indemnity Act. Superior and Wild Well also argued that they wereentitled to defense costs and indemnity under the Vessel Boarding, Utilization and HoldHarmless Agreement (VBA) between Superior and Max Welders. The appellate court initiallyobserved that the district court rejected this argument, but it did not distinguish betweenindemnity for Wild Well and indemnity for Superior in its analysis. Addressing the indemnityissue as it applied to both parties, the appellate court affirmed the district court’s holding withrespect to Wild Well and, with respect to Superior found that there was no Superior-ownedvessel involved in Wilcox's injury, and therefore the VBA did not provide for defense costs. The

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unambiguous language of the VBA did not show that the parties intended it to cover any suit inwhich a Max Welders employee mistakenly or frivolously claimed that a vessel was owned bySuperior. The appellate court affirmed the district court's grant of summary judgment as toWilcox's Jones Act claims and Superior and Wild Well's indemnity claims. (5th Cir, July 24,2015 ) 2015 U.S. App. LEXIS 12878; 2015 U.S. App. LEXIS 12877

COURT HOLDS CLAIMS EXAMINER WRONG ABOUT LHWCA COVERAGE (CONT.)GLOBAL MANAGEMENT ENTERPRISE, LLC V. COMMERCE & INDUSTRY INS. CO.

This case involved an employee of Global Management Enterprise, LLC, Librado De LaCruz,who was allegedly injured while lifting a sack of oil-contaminated sand to throw onto a pile ofsuch sacks located on a beach. De LaCruz made a claim for benefits under the LHWCA and forstate workers' compensation benefits. Chartis, (formerly Commerce and Industry InsuranceCompany) began paying workers' compensation benefits but later determined that De LaCruzheld longshoreman status. Chartis then ceased payments and denied further coverage. Inresponse, the instant lawsuit was filed. In an earlier ruling, the district court ruled that De LaCruzmet both the situs and status requirements concluding that he was covered under the LHWCA.Global appealed, maintaining that de la Cruz did not meet the situs requirement of the Act post-New Orleans Depot Services, Inc. v. Director, OWCP, 718 F.3d 384 (5th Cir. 2013) (en banc).The Fifth Circuit subsequently remanded the case for the court to consider new case law that hadrecently been decided. After reviewing and considering the New Orleans case, the district courtfound that the opinion did nothing to change its previous ruling and that both the situs and statustests were still met. Global’s motion for summary judgment was denied. Global filed anothertimely appeal, arguing that the beach where De La Cruz was injured was not a locationcustomarily used by an employer for a covered activity under the LHWCA. The appellate courtagreed, finding that the beach upon which De La Cruz was allegedly injured was not a sitecustomarily used for longshore work. Therefore, the appellate court held that De La Cruz's injurywas not sustained at a situs reached by the LHWCA. Per the parties' common interpretation ofthe policy language, the injury was therefore not subject to the exclusion in dispute.Accordingly, summary judgment was reversed and the case was remanded. On remand, Chartismoved to have the court dismiss with prejudice all bad faith claims made in the case. Chartisargued that it relied on thirty years of Fifth Circuit jurisprudence defining maritime situs andstatus to posit that the LHWCA covered De LaCruz, excluding his claims for worker'scompensation coverage pursuant to its policy exclusion. Chartis also reminded the court that thecourt itself had agreed twice with Chartis's position by denying Global's motions for summaryjudgment. The court agreed with Chartis, noting that in its prior opinion it had alreadyconsidered all of Global’s arguments and determined that Chartis had not acted in bad faith,ultimately concluding that De LaCruz was a longshoreman based primarily on his daily duty ofloading and unloading a vessel. Even though the court was ultimately found to be in error, thatfinding did not alter that court’s prior determination that Chartis did not act in bad faith indenying coverage. Chartis’s motion for summary judgment was granted. Global appealed thegrant of summary judgment in favor of Chartis. The appellate court affirmed, holding that noreasonable factfinder could conclude that Chartis's incorrect interpretation of the LHWCA wasarbitrary, capricious, or without probable cause. The appellate court found this caseindistinguishable from Hickman. Although the district court erroneously concluded that De La

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Cruz was injured at a situs covered by the LHWCA, its holding was virtually conclusive thatChartis's decision to dispute LHWCA coverage was reasonable. Moreover, Global failed toargue or point to any evidence suggesting that the district court's error on the LHWCA issue wasexceptional. Louisiana law provides that when the initial court to review an insurance disputesides with the insurer, on a question of fact or law, that court's decision, which later proveserroneous, creates a very strong presumption that the insurer did not act in bad faith.Accordingly, the appellate court concluded that Chartis did not act in bad faith when itmisinterpreted the LHWCA and denied coverage to De La Cruz, affirming the judgment of thedistrict court. (5th Cir, June 2, 2015, UNPUBLISHED) 2015 U.S. App. LEXIS 9179

6th Circuit

6TH CIRCUIT STAYS REGULATORY ATTEMPT TO REDEFINE WATERS OF THE U.S.STATE OF OHIO, ET AL. V. UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

Circuit Court Opinion

Petitioners in these four actions, transferred to and consolidated in the court by the Judicial Panelon Multi-District Litigation for handling as a multi-circuit case, represented eighteen states whochallenged the validity of a Final Rule adopted by the U.S. Army Corps of Engineers and theU.S. Environmental Protection Agency, "the Clean Water Rule." 80 Fed. Reg. 37,054 (June 29,2015). The Clean Water Rule clarifies the definition of "waters of the United States," as used inthe Clean Water Act, 33 U.S.C. § 1251 et seq., through increased use of bright-line boundaries toallegedly make the process of identifying waters protected under the Clean Water Act easier tounderstand, more predictable and consistent with the law and peer reviewed science, whileprotecting the streams and wetlands that form the foundation of our nation's water resources. Thestate petitioners contended that the definitional changes effected an expansion of respondentagencies' regulatory jurisdiction and dramatically altered the existing balance of federal-statecollaboration in restoring and maintaining the integrity of the nation's waters. Petitioners alsocontend the new bright-line boundaries used to determine which tributaries and waters adjacentto navigable waters have a "significant nexus" to waters protected under the Act are notconsistent with the law as defined by the Supreme Court, and were adopted by a process thatfailed to conform to the rulemaking requirements of the Administrative Procedures Act. Despitea jurisdictional dissent from one member of the panel, the US Court of Appeals for the SixthCircuit stayed the enforcement of the recent EPA and Army Corps of Engineers regulationdefining waters of the United States for purposes of the Federal Water Pollution Control Act(also known as the Clean Water Act). The status quo at issue was the pre-Rule regime offederal-state collaboration. The appellate court found that it had the authority to issue a staypending its consideration of the question of whether it had jurisdiction under the Clean WaterAct. The appellate court held that the states had demonstrated a substantial possibility of successon the merits, as it was not clear that the Rule's distance limitations conformed to U.S. SupremeCourt precedent. Also, the rulemaking process by which the distance limitations were adoptedwas suspect. Finally, the appellate court observed that the ripple effects caused by the Rule'sdefinitional changes counseled in favor of maintaining the status quo. The petitioners motion for

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stay was granted. (6th Cir., October 9, 2015) 2015 U.S. App. LEXIS 17642

11th Circuit

LONGSHOREMAN’S RETALIATORY TITLE VII CLAIM FAILSWILLIAMS V. GEORGIA STEVEDORE ASSOCIATION

Robert Williams, a longshoreman employed pursuant to a collective bargaining agreement withthe International Longshore Association (ILA), sued the Georgia Stevedore Association (GSA),a collective bargaining representative for multiple stevedore companies, for improper retaliationunder Title VII, claiming he was improperly retaliated against for the following protectedactivities. Although Williams was not a company header, he could act as a header based on hisseniority when a company header was not available. In 2010, the Williams was suspended fromacting as a header for one year. In 2011, the Williams received a thirty-five day suspension fromwork. In 2012, the Williams was suspended from work for thirty days and his header status waspermanently revoked. Williams claimed that these retaliatory actions resulted from his hiring of Linda Walker, whom the Williams claimed he was told not to hire because she frequentlycomplained of gender discrimination, filing his claim with the EEOC, and filing this lawsuit. The district court granted summary judgment for GSA on all claims, finding that Williams failed toproduce any evidence from which a fact-finder, reviewing the objective circumstances, couldconclude that Williams was opposing discrimination against Walker by hiring her. The districtcourt also determined that, while filing an EEOC complaint was a protected activity, Williamshad failed to show a causal nexus between the filing of his EEOC claim and his thirty-five daysuspension from work. Finally, as to the filing of his lawsuit, district court determined that thiswas a protected activity and that Williams had shown a causal nexus between the filing of hislawsuit and his thirty day suspension and the permanent revocation of his header status. Theburden then shifted to GSA to show a non-discriminatory reason for the discipline. The districtcourt held that GSA met this burden by showing that the discipline resulted from the Williamsrefusal to follow the instructions of his supervisor. The burden then shifted back to Williams topresent evidence that this non-discriminatory reason was pretextual, which the district courtfound Williams had failed to do. Williams filed a timely appeal of the district courts judgment.The appellate court found no reversible error in the district court's grant of summary judgment infavor of GSA and affirmed the district court’s judgment in all respects. (11th Cir, May 4, 2015,UNPUBLISHED) 2015 U.S. App. LEXIS 7334

DC Circuit

On August 6, 2015, the U.S. Court of Appeals for the D.C. Circuit denied the petition forrehearing en banc in the case of Brink v. Continental Insurance Company, 2015 U.S. App.LEXIS 13842. This was the case where Josh Gillelan was leading the charge on behalf of DavidBrink and thirty-two other individuals seeking to bring a $2 billion dollar class and RICO actionunder the Defense Base Act [see case below].

APPELLATE COURT DENIES CLASS AND RICO ACTIONS AS OUTSIDE DBA SCHEME

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BRINK, ET AL. V. CONTINENTAL INSURANCE COMPANY, ET AL.

Daniel Brink, joined by thirty-one other individuals, brought a class action lawsuit, on behalf ofthemselves and an estimated 10,000 similarly situated workers seeking $2 billion in damages aswell as declaratory and injunctive relief, stemming from the workers' compensation benefitsowed to class members under the Defense Base Act, for injuries allegedly suffered whileworking for United States government contractors in Iraq and Afghanistan. In connection withtheir DBA claims, appellants alleged that several government contractors, insurance companies,and third parties (collectively "contractors") committed torts and violated the LHWCA, theRacketeer Influenced and Corrupt Organizations Act (RICO), and the Americans withDisabilities Act (ADA). The district court dismissed all of appellants' claims. Appellants movedfor reconsideration pursuant to FRCP 59(e), and sought leave to file an amended complaintunder FRCP 15(a) to correct the defects in their ADA claims. The district court denied bothmotions with prejudice. Appellants timely appealed, raising three issues: (1) whether thestatutory scheme barred appellants' tort claims; (2) whether the district court erred in dismissingappellants' federal claims; and (3) whether the district court abused its discretion when it deniedthe motion for leave to allow some of the appellants to amend their ADA claims. The appellatecourt concluded that the statutory scheme barred appellants' class-wide tort claims and that thedistrict court did not err in dismissing appellants' RICO and Longshore Act claims. Because thestatutory scheme of the DBA and LHWCA contained exclusive remedies, it left no room forappellants' RICO or tort claims. However, the appellate court did note that the extensive factualallegations in the complaint included some assertions that could be predicates for independentlegal claims, falling outside the class action. Additionally, Three individuals alleged violations ofthe ADA. Therefore, the appellate court found that the district court abused its discretion bydenying without explanation the motion for leave to allow some of the appellants to amend theirADA claims. Although the appellate court affirmed the dismissal of appellants' class-wide tortclaims as well their RICO and Longshore Act claims, it noted that the dismissal did not precludeany individual appellants from bringing independent claims outside of the DBA’s statutoryscheme. With respect to the ADA claims brought by three individual appellants, the appellatecourt remanded to the district court to reconsider and explain its denial of leave to amend thecomplaint. (DC Cir, June 2, 2015) 2015 U.S. App. LEXIS 9112

State Appellate Courts

California

NO TRIABLE ISSUE OF MATERIAL FACT IN SECTION 905(B) ASBESTOS CASEMURAT ET AL. V. EXXON MOBIL CORP. ET AL.

Joseph Murat owned and operated Port Welding & Machine Works, Inc., from 1963 to 1983. InJanuary 2011, he was diagnosed with mesothelioma, a cancer caused by asbestos, and diedseveral months later. Mary Murat and Susan Murat (collectively “Murat”) filed suit againstExxon Mobil Corporation and SeaRiver Maritime, Inc., under §905(b) of the LHWCA and statelaw, alleging that the decedent had developed mesothelioma as a result of exposure to asbestos

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while working onboard defendants' vessels. The complaint alleged that the decedent haddeveloped mesothelioma as a result of exposure to asbestos onboard defendants' vessels between1963 and 1980. The only percipient testimony regarding the possible time, place, and manner ofthe decedent’s exposure to asbestos was provided by two former Port Welding employees.Exxon and SeaRiver moved for summary judgment, that the inability of the Port Weldingemployees to identify any asbestos products used in the decedent’s presence onboard their ships,rendered the evidence incapable of proving that defendants had breached a duty of care owed tothe decedent. The trial court granted defendants' motions for summary judgment based onMurat’s inability to establish a violation of a duty of care owed to Mr. Murat. This timely appealfollowed. Murat contended that summary judgment was erroneously granted based solely on theScindia turnover duty. Murat sought a reversal and new hearing on the duties of active controland intervention. The appellate court concluded that because Murat had failed to demonstrate theexistence of a triable issue of material fact, reversal was not warranted. Based on its independentreview of the record, the appellate court found no triable issues of material fact, and concludedthat summary judgment was properly granted. Murat’s contention that the trial court erred infailing to consider the duty of active control or intervention was not persuasive, because therewas no evidence as to the manner in which the decedent was exposed to asbestos. The evidence,at best, showed only a mere possibility of exposure. The judgment of the trial court wasaffirmed. (Cal. 2nd App., August 11, 2015, UNPUBLISHED) 2015 Cal. App. Unpub. LEXIS5710

Louisiana

DETERMINATION OF LHWCA ENTITLEMENT NEEDS TO BE MADEJOHNSON V, ACE AMERICAN INSURANCE CO., ET AL.

Shawn Johnson was employed by the Wood Group as a mechanic working on some of its oilproduction platforms, when he allegedly sustained a work-related injury, while aboard a boatthat was involved in a collision. Following his work-related accident, Johnson asserted claimsfor relief under both the Louisiana Workers’ Compensation Act (LWCA) and the Longshore andHarbor Workers' Compensation Act (LHWCA). At all times pertinent, the Wood Groupmaintained insurance coverage for both state benefits under the LWCA and claims for federalbenefits under the LHWCA with two separate insurance carriers. Following a formal hearing thestate workers' compensation judge (WCJ) did not explicitly, by judgment, find that Johnson'sclaim fell under the purview of the LHWCA; rather, she determined that his claim forcompensation benefits did not fall under the LWCA. Consequently, finding the LWCA did notapply to Johnson's work-related injury, the WCJ dismissed Johnson's LWCA claim, withprejudice. Johnson appealed the determination, arguing the WCJ erred in dismissing his claimfor compensation under the LWCA with prejudice because, in the event it is determined in thefederal court proceedings that he is not entitled to benefits under the LHWCA, he is, essentially,deprived of a remedy for compensation as a result of his work-related injury. Johnson alsoaverred the WCJ legally erred in determining that his claim for compensation benefits wascovered by the LHWCA, and that his employer carried its burden of establishing that his claimsatisfies the "status" and "situs" tests and, thus, falls under the LHWCA. The appellate court

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noted that the WCJ did not make a specific finding that Johnson's claim was covered by theLHWCA or that it met the situs and status eligibility requirements for benefits thereunder. Whilethe appellate court recognized that a trial court has wide discretion to control and move its owndocket, it found the WCJ abused that discretion in dismissing Johnson's claim prior to therendition of a definitive determination that Johnson was receiving, or was eligible to receive,federal compensation benefits for his work-related injury, which would in turn preclude hiseligibility to receive state compensation benefits under the LWCA. Accordingly, the appellatecourt vacated the judgment and remanded the matter with instructions not to hear Johnson's caseuntil such time as a definitive judgment has been rendered by the federal court on whether Johnson qualified for benefits under the LHWCA or other similar federal statute. (La. App 4th

Cir, September 23, 2015) 2015 La. App. LEXIS 1833

APPELLATE COURT UPHOLDS FINDING OF NO SITUS OR STATUSHERNANDEZ V. LA. WORKERS' COMP. CORP.

Luis Hernandez allegedly suffered an injury while cutting timber to be used in the constructionof a boat ramp. This ramp was being built on a navigable waterway and the ramp was to be usedto launch boats into the waterway. The uncontested facts established that Hernandez was notinjured while on the ramp, but while working in a grassy area between thirty and one hundredfeet from the ramp. Hernandez was an employee of UNO Enterprises, LLC, who assigned him towork under the direction and control of M. Matt Durand, LLC. Durand, a heavy constructioncompany, which was hired to build the ramp. Hernandez filed a disputed claim for compensationwith the Office of Workers' Compensation (OWC). UNO Enterprises was named as hisemployer, and Louisiana Workers' Compensation Corporation (LWCC) as UNO's workers'compensation insurer. LWCC answered the claim, admitting it was UNO's workers'compensation carrier, but denied coverage for Hernandez’s claim, asserting Hernandez was alongshoreman under the LHWCA and was not covered under the LWCC's policy, which did notprovide coverage for LHWCA benefits. UNO subsequently filed a third party demand, namingDurand as the statutory employer of Hernandez. Durand filed a cross-claim against UNO andLWCC, alleging if it was liable as the borrowing employer for benefits, then UNO and LWCCwere liable for half. Durand subsequently moved for partial summary judgment on the issue ofwhether the OWC possessed subject matter jurisdiction, which LWCC joined in. The motionswere heard together in a single hearing before the OWC, after which the workers' compensationjudge (WCJ) granted Durand's motion for partial summary judgment and denied LWCC'sexception of lack of subject matter jurisdiction. The WCJ found Hernandez’s claims were notgoverned by the LHWCA, but were compensable under Louisiana's workers' compensation laws.LWCC appealed the ruling. The appellate court began by reviewing the WCJ's oral reasons,rendered in open court, which revealed she relied on the fact that Hernandez was hired forconstruction purposes and he was doing construction work, which was being done on land.LWCC argued the WCJ erred in not finding that both the situs and status requirements of theLHWCA were fulfilled under the facts of the case. After a thorough review of the record, theappellate court found no error on the WCJ's part. The appellate court agreed that the boat rampwas not a “pier” for purposes of the LHWCA. Nor was there any evidence to establish theadjoining area in question was customarily used by an employer in loading, unloading, repairing,dismantling or building a vessel. Moreover, the area where Hernandez was allegedly injured had

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not been previously used for maritime activities, as it was well off the bank, and was simply agrassy field where Hernandez performed his construction activities. The judgment of the WCJgranting the motion for partial summary judgment was affirmed. (La. App. 3rd Cir, June 3, 2015)2015 La. App. LEXIS 1158

District Courts

Alabama

COURT DISMISSES DISCRIMINATION CLAIM UNDER LHWCA NIFA EXTENSIONTOLBERT V. SECRETARY, DEPARTMENT OF THE AIR FORCE

This case involved an employment discrimination case filed by Violet Tolbert, pro se, againstDeborah Lee James, in her capacity as Secretary of the United States Air Force. Tolbert allegeddiscrimination against her on the basis of disability and violation of the Family Medical LeaveAct (FMLA), when she was not allowed to take an indefinite extended period of sick leavewithout pay and was fired for failing to report to her civilian job as a custodian atMaxwell/Gunter Air Force Base. She also alleged that she was fired in response to her insistencethat her employer pay a workers' compensation claim, was discriminated against on the basis ofage. The LHWCA applies to workers' compensation claims by civilian employees that are paidfrom non-appropriated funds of the United States military for the comfort, pleasure, contentment,and mental and physical improvement of personnel of the armed forces. The Secretary moved forsummary judgment. After reviewing the motion for summary judgment, together with thepleadings, affidavits, depositions, answers to interrogatories, and admissions on file, the courtconcluded that the motion for summary judgment was due to be granted on Tolbert's FMLA,disability, and age discrimination claims. Further, the court concludes that Tolbert's workers'compensation retaliation claim was due to be dismissed with prejudice pursuant to 28 U.S.C.§1915(e)(2)(B)(ii) and that Tolbert’s case was due to be dismissed with prejudice. BecauseTolbert could not return to work in any capacity at the time of her termination, and becauseindefinite leave would not have been a reasonable accommodation, she was not an "otherwisequalified" person with a disability. Therefore, she could not prevail on her claim forwrongful termination. Tolbert was provided almost twice the amount of leave required under theFMLA. Accordingly, the defendant was entitled to summary judgment on Tolbert's FMLAclaim.The court also found that Tolbert had failed to exhaust her LHWCA administrative remedieswith respect to her retaliation claim under §948(a). The court also found that allowing Tolbert anopportunity to amend or restate her retaliation claim would be futile because no facts existed tosupport the claim. Finally, the court found that Tolbert did not timely pursue or exhaust heradministrative remedies with respect to her ADEA claim that she was subjected to agediscrimination. Because the court concluded that there was no genuine dispute of material fact, itheld that the defendant was is entitled to judgment as matter of law. (USDC MDAL, March 25,2015) 2015 U.S. Dist. LEXIS 61345

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Arizona

DBA PRECLUDES PLAINTIFF’S WRONGFUL DEATH AND NEGLIGENCE CLAIMSBURNETTE V. SIERRA NEVADA CORPORATION, ET AL.

William Burnette was working as a sensor operator, for New Frontier Innovations, LLC (NFI),on board a plane that was conducting an airborne counter-narcotics surveillance mission whenthe plane crashed near the border of Panama and Columbia killing Burnette and three other crewmembers. The surveillance mission was conducted in conjunction with a service contractbetween Sierra Nevada Corporation (SNC) and a division of the United States Air Force. SNC,in turn, subcontracted with NFI to provide the personnel, such as pilots and sensor operators, forthe missions. The NFI's subcontract with SNC was in direct support of SNC's prime contractwith the military. After the crash, NFI notified its Defense Base Act (DBA) insurer of theaccident, and the insurer subsequently paid eligible funeral expenses for Burnette's funeral asrequired by the statute. Burnette was not married at the time of the accident and did not have anyminor children or other dependents who would be eligible for payment of any death benefitsunder the DBA. Following his death, Tracie Garnett on behalf of herself and the estate of herson, William Burnette III, brought wrongful death and negligence claims against NFI, who fileda motion for summary judgment in its favor, arguing that such state law tort claims arepreempted by the exclusive remedy provision in the DBA. The court initially observed that theaccident at issue occurred during a mission to carry out a contract that satisfied the DBA,because the prime contract, and the subcontract by extension, had a clear nexus to nationaldefense. In another action arising out of the same accident, Moore v. United States, a federaldistrict court had held that the tort claims brought by the estate and survivors of another NFIemployee killed in the accident were preempted by the DBA. Plaintiff argued that, in order forthe DBA exclusive remedy provision to apply, precise language regarding obtaining andmaintaining DBA insurance as set forth in the statute must be included in all contracts andsubcontracts. The court noted that the Benefits Review Board had rejected such an argument,finding that the statue's requirement for a DBA insurance provision in a covered contract merelycreates a legal obligation for those entering into covered contracts but does not add an additionaljurisdictional requirement. Regardless, the court also concluded that the subcontract's DBAinsurance provision was adequate. Plaintiff also argued that certain deficiencies in NFI'sinsurance policy rendered the DBA's exclusive remedy provision inapplicable. Noting that thiswas not a coverage dispute, the court noted the crucial fact was that NFI's insurance policy wasin effect at the time of the accident and provided the appropriate DBA coverage. The court thenturned to plaintiff's claims against SNC, who argued that the DBA's exclusive remedy provisionnonetheless applies to bar plaintiff's claims against it because the term "employer" extends to aborrowing employer under the "borrowed servant" doctrine and that, here, Burnette was itsborrowed employee at the time of the accident. After the court analyzed the Ruiz factors,applicable to the borrowed servant doctrine, it held that there were disputed issues of fact onmatters that were relevant to the court's decision on the issue of borrowed employment,precluding summary judgment on the issue.NFI's motion for summary judgment was granted and SNC's motion for summary judgment wasdenied. (USDC DAZ, September 18, 2013) 2015 U.S. Dist. LEXIS 124984

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California

LONGSHOREMAN PREVAILS AGAINST GOVERNMENT ON AUTO LIABILITY SUITCANTU V. THE UNITED STATES OF AMERICA, ET AL.

Michael Cantu worked as a Class A longshoreman and was regularly engaged in physicalactivity, such as loading and unloading trains and shipping containers, locking shippingcontainers together, climbing up ocean-going vessels and railcars, and lifting objects heavierthan thirty-five pounds. Officer Owen Teruya was a Supervisory Customs and Border Protectionofficer employed by the United States Department of Homeland Security: Customs and BorderProtection for twenty-six While at the ports, Teruya and his team search containers andocean-going vessels and conduct surveillance and scan shipping containers for indicia ofnarcotics or terrorist influence. The Stevedore Services of America (SSA) Terminal, where theyboth worked, had a speed limit of 15 miles per hour that was applicable to all drivers. Cantu andOfficer Teruya were in an automobile collision on the terminal grounds and both were actingwithin the scope of their employment at the time. At the time of impact, Cantu was travelingbetween 24 and 32 miles per hour. Teruya was traveling between 17 and 21 miles per hour.Following the collision, Cantu's car spun clockwise and rolled onto its roof where it ultimatelycame to rest. Cantu was wearing a seatbelt at the time of the collision, crawled out of his vehiclewithout assistance, and claimed that he was uninjured at the time. Some time thereafter, Cantu'sattorney referred him to an orthopedic surgeon, who was told that Cantu had immediate pain inhis left shoulder, his neck, and his back, and that the pain had steadily gotten worse. Followingseveral office visits and cortisone injections, the surgeon recommended that Cantu undergo anarthroscopy, subacromial decompression and distal clavicle resection. Cantu did not authorize asurgical procedure because he had allegedly exhausted his workers' compensation benefits andwas having trouble paying for other necessities. The surgeon did not impose specific restrictionson Cantu's return to work, but found that he was limited in his ability to work at or aboveshoulder level. Cantu subsequently filed suit against Teruya, but the United States of Americawas substituted as defendant for Officer Teruya pursuant to 28 U.S.C. § 2679(d)(2). Thegovernment answered the complaint and filed a counterclaim against Cantu. Cantu filed ananswer to the counterclaim and the counterclaim was dismissed pursuant to the parties'stipulation. Cantu's negligence claim was tried to the court. Following the bench trial, and afterthoroughly weighing all the evidence, and considering post-trial briefs, the court concluded thatthe government was liable for negligence in connection with the collision occurring at the SSATerminal. The court further concluded, however, that Cantu was also negligent in the operationof his vehicle and that such negligence was a substantial factor contributing to his injuries. Toreflect Cantu’s comparative fault, the court allocated 70 percent of the fault to Cantu and 30percent of the fault to the government. The court awarded Cantu total damages of $15,723.45,which represented a 70 percent deduction of total proven damages of $52,411.50. (USDCCDCA, August 7, 2015) 2015 U.S. Dist. LEXIS 104056

LONGSHOREMAN’S CLAIM AGAINST STEVEDORE RULED UNTIMELYWILLIAMS V. ASERRADEROS ARAUCO, SA, ET AL.

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Keisha Williams, a longshoreman, sustained injuries while transporting lumber that she allegedwas negligently packed by Aserraderos Arauco, San Vicente Terminal Internacional (SVTI), andSSA Marine, Inc. Williams first named SSA Marine as a defendant more than three years afterher injury, which was beyond the longest potentially applicable statute of limitations. The courtinitially dismissed the second amended complaint with leave to amend because the statute oflimitations had run and Williams' claim against SSA neither related back nor triggered equitabletolling. Williams filed her third amended complaint and SSA moved to dismiss the thirdamended complaint on the grounds that her claim was still barred by the applicable statutes oflimitation. SSA argued that the claim against it was barred under either California's two-yearstatute of limitations for negligence, or under the three-year statute of limitations under generalmaritime law, because it was not named as a defendant until more than three years after theaccident. Williams did not dispute that she filed her claim against SSA after the applicablestatutes of limitations had run, but contended that her claim against SSA was not time-barredbecause it related back to the filing of her original complaint and because the claim was tolledunder the doctrine of equitable tolling. The court agreed that Williams' claims against SSA didnot relate back because Williams had pleaded no facts from which the court could conclude thatSSA had reason to think that it would have been named as a defendant but for a mistake by her.Williams' claims against SSA were also not equitably tolled because she pleaded no facts fromwhich the court could conclude that her failure to name SSA as a defendant before the statute oflimitations expired was reasonable. Accordingly, the court granted SSA’s motion and dismissedthe third amended complaint. Because of SSA's failure to make initial disclosures and participatein discovery, however, the court declined to conclude that Williams' complaint should bedismissed with prejudice. (USDC NDCA, May 12, 2015) 2015 U.S. Dist. LEXIS 62328

Florida

CONSEQUENCES OF FAILURE TO GET SETTLEMENT APPROVED UNDER LHWCAFELDMAN, ET AL. V. IMPERIUM INSURANCE COMPANY

This case involved a malpractice action, filed by Chad Ketchum, a former client of the law firmFeldman and Feldman Morgado, PA, alleging that the law firm breached their professional dutiesin handling Ketchum's personal injury lawsuit and LHWCA claim. Ketchum had hired the lawfirm to pursue a claim for injuries that he suffered while working as a civilian contractor inAfghanistan. While his tort action was pending, Ketchum also had a pending claim for federalworkers' compensation benefits under the LHWCA, and he was receiving temporary totaldisability indemnity benefits and medical benefits. The law firm knew that Ketchum had afederal workers' compensation claim and that he was receiving benefits. On advice of counsel,Ketchum entered into a full and final settlement of the tort action, but his attorneys did not obtainprior written approval for the settlement from Ketchum's employer, Brown InternationalCorporation or from Brown's workers' compensation insurer, Zurich American InsuranceCompany. After Zurich learned of the settlement, it terminated Ketchum's right tocompensation. Ketchum alleged that his attorneys had a duty to know the law governingthird-party tort claim settlement agreements for clients with pending federal workers'compensation claims, and that they had a duty to comply with the provisions of the LHWCA by

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obtaining prior approval, and that they had breached their duties by having Ketchum enter into asettlement of his tort claim without obtaining the necessary prior approval. The law firmsubsequently filed suit against their professional liability carrier, Imperium Insurance Company,alleging that Imperium wrongfully refused to defend and indemnify the firm in a state-courtmalpractice action. Imperium maintained that the law firm knew of the potential for amalpractice claim prior to the claim made policy's effective date, triggering the policy'sprior-knowledge exclusion. The parties filed their cross-motions for summary judgment, relyingon different evidence to advance their respective positions as to whether the law firm knew orcould have reasonably foreseen that the failure to obtain settlement approval might be expectedto be the basis of a claim. After reviewing all the evidence and the applicable law, the courtfound that the evidence relating to the attorneys’ subjective beliefs was enough to raise a factualissue as to whether they knew or could have reasonably foreseen that the failure to obtainsettlement approval might be expected to be the basis of a claim. Imperium’s motion forsummary judgment was denied. The law firms’ cross motion for partial summary judgment wasgrant as to Imperium’s second, fourth, and fifth affirmative defenses and Imperium’s sixthaffirmative defense was stricken. (USDC MDFL, October 5, 2015) 2015 U.S. Dist. LEXIS135478Updater Note: Although this is more of an insurance case than it is a Longshore matter, Ithought the case was illustrative of how important settlement decision are under the LHWCAand the consequences of failure to follow proper notice procedures under the Act.

Illinois

WORKERS’ COMP CAUSES OF ACTION FRAUDULENTLY PLEDFAARUP V. W.W. TRANSPORT, INC.

Christopher Faarup sued W.W. Transport, Inc. (WWTI) in state court for wrongful discharge inretaliation for filing a workers’ compensation claim, under the Illinois Workers' CompensationAct (IWCA), as well as pleading two separate causes of action under the IWCA. WWTIremoved the state action to federal court. The federal court issued an order to show cause whythe court should not remand the case to state court, since Faarup had pled a cause of action underIWCA and, pursuant to 28 U.S.C. §1445(c), workers' compensation claims are non-removable.WWTI responded that counts I and II, claims for wrongful discharge in retaliation for filing aworkers' compensation claim, were removable claims, as the law is clear that a claim ofretaliation for the exercise of rights under the IWCA does not arise under the IWCA but undergeneral tort law. Therefore, if this case is non-removable under §1445(c), it is because of CountsIII and IV, which allege causes of action for refusal to provide workers' compensation benefits.WWTI responded that the court should disregard Counts III and IV because Faarup hadfraudulently pled those causes of action to avoid removal. WWTI pointed out that there was nosuch cause of action in state court for refusal to pay workers' compensation benefits. Instead, theIllinois Workers' Compensation Commission had exclusive jurisdiction to decide whetherworkers' compensation benefits should be awarded, and Illinois courts are limited to appellatereview of those administrative decisions. Faarup maintained that Counts III and IV wereproperly pled because WWTI had failed to comply with the IWCA. The court found that countsIII and IV were frivolous because they had no basis in law and served only to frustrate federal

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jurisdiction. The court held both courts had been fraudulently pled and disregarded them for thepurposes of determining whether removal was proper. The court discharged the order to showcause, dismissed Faarup’s counts III and IV without prejudice as fraudulently pled, and held thatremoval was proper. The court also gave the parties 21 days to update and re-file their state courtmotions, if appropriate, citing appropriate federal standards and authority. (USDC SDIL, July21, 2015) 2015 U.S. Dist. LEXIS 94817

Louisiana

LOT’S OF CLAIMS AND ALLEGATIONS THAT KEEP CHANGINGDUVALL v. BOPCO, L.P., ET AL.

Michael Duvall's right hand was allegedly crushed, while working as a coil tubing operator forPioneer Coiled Tubing Services, LLC, while he was in the process of unloading a spud bargeowned and operated by BOPCO, L.P. The crush injury ultimately necessitating partialamputation of Duvall’s index finger and caused residual impairments and disabilities to his indexand middle finger. BOPCO had contracted with Pro-Tow Marine, LLC to provide a tow boat andpersonnel to equip and transport the barge for work on oil and gas production wells. BOPCOalso contracted with Eagle Consulting, LLC to provide a supervisor for the barge or well repairoperations. Duvall sued BOPCO, Pro-Tow Marine, and Eagle Consulting, seeking to recover inexcess of $500,000 for a litany of alleged negligent acts as well as violations of general maritimelaw and Louisiana law. As against BOPCO, the vessel owner, Duvall also sought to recoverunder §905(b) of the LHWCA. BOPCO moved to dismiss 11 of the claims asserted against it onthe ground that Duvall's exclusive remedy is under §905(b) of the LHWCA. Since BOPCO'spartial motion to dismiss was filed, Duvall filed a second supplemental and amending complaintin which he no longer pursued nine of the claims that BOPCO sought to dismiss. Insofar asDuvall had withdrawn these claims in his second amended complaint, BOPCO's partial motionto dismiss as to these claims was denied as moot. Insofar as BOPCO sought to dismiss additionalclaims, which had been reasserted or re-styled in Duvall's second supplemental and amendingcomplaint, the court denied the motion without prejudice. The court observed that BOPCO hadalready filed a partial motion to dismiss these other claims and the motion had been set forhearing. (USDC EDLA, September 30, 2015) 2015 U.S. Dist. LEXIS 132924

SUMMARY JUDGMENT DENIED ON CONTRIBUTORY NEGLIGENCE ISSUEGOTREAUX V. APACHE CORPORATION, ET AL.

Corey Gotreaux filed this personal injury lawsuit, alleging that he was injured while beingtransferred from a vessel to a fixed platform. Gotreaux was employed by Performance EnergyServices, LLC as a rigger, working on Apache Corporation’s platform. Because there were noliving quarters on that platform, he was ordered to relocate to another platform that was alsoowned and operated by Apache. He traveled from the first platform to the second on board avessel owned by Cheramie Holdings, LLC and Gulf Resource crewed, operated, and managedthe vessel pursuant to a time charter agreement between Gulf Resource and Apache. Uponarrival at the other platform, Gotreaux and three other men placed their baggage into the basket

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and attempted to board the basket. As the basket was raised, a wave crashed over the bulwark,hitting the basket and propelling it toward the side of the vessel. A second wave quicklyfollowed, and it knocked all four men off the basket. Gotreaux alleged that he was the closest ofthe four men to the bulwark and consequently took the force of the impact, resulting in hisalleged bodily injuries. In responding to Gotreaux’s complaint, the defendants asserted as adefense that Gotreaux’s injuries resulted, in whole or in part, from his own negligence. Inparticular, the defendants contended that Gotreaux had stop work authority and could haveasserted that authority and prevented the accident from occurring by stopping the basket transferprocedure. Gotreaux moved for partial summary judgment, seeking a ruling from the courtestablishing that his actions and omissions did not cause or contribute to the accident or hisresulting injuries. Gotreaux testified at deposition that he did not give any thought to whether thebasket transfer procedure might be unsafe in such weather. He also testified that he was nottrained with regard to stop work authority. However, the court noted that the vessel's captaintestified at his deposition, that before an attempt to lift the personnel basket from the vessel'sdeck was made, he announced on the loud speaker that anyone who did not want to go throughwith the basket transfer could stop the operation. Furthermore, one of Mr. Gotreaux'sidentification cards indicated that he was trained with regard to stop work authority. On the card,directly beneath his photograph, in capital letters and underlined, are the words: "STOP WORKAUTHORITY." Beneath that, again in all capital letters are the words: "IT IS YOURRESPONSIBILITY & YOU HAVE THE AUTHORITY!" The court found that this conflictingevidence demonstrated that a genuinely disputed issue of material fact existed regarding whetherGotreaux's acts or omissions played a part in causing the accident and whether he was trainedwith regard to stop work authority. Gotreaux’s motion for partial summary judgment on the issueof his contributory negligence was denied. (WDLA, September 11, 2015) 2015 U.S. Dist. LEXIS121621

COURT HOLDS OSHA’S MULTI-EMPLOYER WORKSITE DOCTRINE INAPPLICABLEHAYNES V. MOMENTIVE SPECIALTY CHEMICALS INC.

Hexion Inc. (f/k/a Momentive Specialty Chemicals Inc.) was the owner and operator of a dock,which was part of its business at its facility which included formaldehyde production, whichhandled the loading and unloading of barges for the transfer of chemicals. Duane Haynes wasemployed by Delta Coatings, Inc. as a sandblaster and painter. Hexion hired Delta to sandblastand paint certain steel structures of its dock, including the catwalk from the guard shack to theriver and the dolphins (platforms). Haynes claimed that he went to the bottom level of theplatform that he was supposed to sandblast and positioned himself so that he could be seen bythe blasters above his level so as not to be blasted by them. Once in place, Haynes placed hisblast hood on, snapped the cape of his blast hood under his arm and passed out and fell afterallegedly inhaling nitrogen from the nitrogen lines on Hexion’s dock. After a second Delta crewmember collapsed the same day, it was discovered that the hose from the Delta purifier had beeninadvertently connected to a nitrogen line. The nitrogen line was not tagged, labeled, or colorcoded for identification at the time of the subject accident, nor was it disabled or locked out priorto the start of work by Delta. Haynes filed suit and then moved for summary judgment on thegrounds that there was no genuine issue of material fact as to whether Hexion violated OSHAregulations, framing his motion on the idea that Hexion was governed by OSHA regulations,

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pursuant to the multi-employer work site doctrine. Haynes also argued negligence per se forviolating the regulation or, otherwise, that the violation is evidence of negligence. Hexioncontended that the OSHA regulation was inapplicable because it was not an employer in fact ofHaynes and the Fifth Circuit rejects the multi-employer worksite doctrine or, alternatively,because Hexion was not considered an "employer" under that doctrine. Hexion moved for a summary judgment finding that it was not Haynes employer in fact, that it was not his employerunder the multi-employer worksite doctrine, and that Haynes could not establish that any breachon the part of Hexion was a legal cause of his damages. The court initially noted that it wasbarred by precedent from finding that the OSHA regulation applies to Nexion for purposes ofnegligence per se, but there was uncertainty as to its applicability to Nexion for use as evidenceof negligence. Nonetheless, the court found that Nexion did not actually violate the OSHAregulation. The court concluded that Haynes could not prevail on his motion as it pertained toissues of negligence per se, but declines to expand those limited holdings of the Fifth Circuit todetermine whether the violation of an OSHA regulation by a non-employer may be used asevidence of negligence. Therefore Haynes motion for summary judgment, for finding Nexionnegligent per se was denied and Nexion’s motion was granted, insomuch as Nexion was notHaynes’ employer under the multi-employer worksite doctrine for the purposes of findingnegligence per se. The court also denied Haynes’ motion for summary judgment as it pertainedto finding Nexion negligent for violating the OSHA regulation, and summary judgment wasgranted on behalf of Nexion, inasmuch as it had not violated the OSHA regulation so that itcould not be used as evidence of negligence. Finally, Haynes motion for summary judgment onthe basis of negligence under Louisiana law was denied and Nexion’s motion for summaryjudgment was granted, as it pertained to a finding that any breach on the part Nexion was not thelegal cause of Haynes’ damages. (USDC EDLA, September 25, 2015) 2015 U.S. Dist. LEXIS129321

NO WHISTLEBLOWER PROTECTION UNDER OCSLAENGLISH V. WOOD GROUP PSN, INC, ET AL.

Steve English, a former employee of Wood Group PSN, Inc., was assigned to work on anoffshore oil platform operated by W&T Offshore. English was employed as an ElectronicsInstrumentation Technician on the platform, and one of the his primary duties was to inspect theplatform VK-823 and complete monthly compliance reports for the Bureau of Safety andEnvironmental Enforcement, United States Department of the Interior (BSEE). English claimedthat he was fired for reporting that the fire and gas safety system on VK-823 was not fullyfunctional or properly inspected, prompting an investigation by BSEE. English filed suit againstWood Group and W&T Offshore alleging that he was wrongfully terminated from hisemployment through an act of reprisal by his employers in violation of the LouisianaWhistleblower Act (LWA), La. R.S. §23:967. Wood Group moved to dismiss, asserting thatEnglish failed to allege sufficient facts establishing a claim under the LWA, arguing that Englishfailed to allege facts relating to an essential element of the LWA, that the employer engaged inan actual violation of state law. W&T Offshore moved to dismiss, asserting that English failed tostate a claim under the LWA because W&T Offshore was not his "employer" for purposes of theLWA in addition to failing to allege any actual violation of state law violated by W&T Offshore.In addition, both Wood Group and W&T Offshore asserted that English failed to allege sufficient

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facts to establish his state law claims for negligence, defamation, and intentional infliction ofemotional distress. In response, English argued that, as a person employed on an offshore oilplatform who performed the majority of his employment duties on the Outer Continental Shelf,his case was governed by the Outer Continental Shelf Lands Act (OCSLA), and that the OCSLAapplies Louisiana state law as surrogate federal law. Therefore, the LWA definition of"employer" and would apply to W&T Offshore as a borrowing employer. Ultimately, Englishargued that the motions to dismiss should be denied, but alternatively requested leave to amendhis complaint to cure any deficiency in factual pleading perceived by the court, and, provided thecourt accepted his argument that this is an OCSLA claim, to remove alternate forms of relief notavailable against OCSLA employers because of the LWHCA provisions. The court observed thatwhere the matter is governed by OCSLA, Louisiana law applies as surrogate federal law, andLouisiana law is not inconsistent with federal law, English was left with an unsatisfactoryremedy. Under the facts of the case, it is difficult to imagine how a whistleblower may succeedin demonstrating his reporting of violations of Louisiana state law that occurred beyondLouisiana's territorial jurisdiction on the outer continental shelf. The court took judicial notice ofthe fact that Congress had considered but not passed any legislation specifically providing oilplatform workers whistleblower protection. Therefore, English was entirely dependent on theunique application of the LWA (via OCSLA) for his remedy, as opposed to a federal cause ofaction providing whistleblower protection. While the court noted that it was sympathetic toEnglish’s plight, it was constrained to apply only the law applicable. The court also found thatthe "employer" must be a payroll employer for purposes of LWA liability. In this case, becauseW&T Offshore was not alleged to be a payroll employer, English’s complaint failed to allegefacts giving rise to a plausible claim against W&T Offshore on its face and the claim must bedismissed. Finally, the court found that any amendment to English’s claim would be futile, as itwould still fail to state a claim under FRCP12(b)(6). Accordingly, W&T Offshore's Motion toDismiss and Wood Group's Motion to Dismiss were granted, and English’s complaint wasdismissed with prejudice. (USDC EDLA, August 25, 2015) 2015 U.S. Dist. LEXIS 112498

COURT AWARDS BIG DAMAGES IN §905(B) CASEKOCH, ET AL. V. UNITED STATES OF AMERICA

Ricky Koch alleged sustaining a personal injury while descending an allegedly dimly lit stairwellaboard a vessel owned by the the Maritime Administration of the United States Department ofTransportation. Koch boarded the vessel on behalf of Economy Iron to submit bids on areas ofthe vessel in need of repair. There were six other contractors present, all of whom were taken bythe vessel’s chief engineer on a "walkthrough" of the vessel. After inspecting various areas onthe vessel, the parties arrived at a stairwell, where the fluorescent lights did not fully illuminate.Each contractor had a flashlight, but Koch did not use his flashlight, choosing instead to use bothhands to hold handrails on opposite sides of the stairwell. Koch fell backwards and struck thebulkhead or some other piping behind him, immediately complaining of discomfort in his knees,neck, and back. Koch later underwent multiple surgeries and was eventually found to bepermanently and totally disabled. Koch and his wife filed suit under §905(b) of the LHWCA,with the wife claiming that the stress of working a full-time job and taking care of her husbandhas taken its toll and the stress has adversely affected the marital relationship. The court initiallynoted that the United States had waived sovereign immunity to admiralty suits through the

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Public Vessels Act and the Suits in Admiralty Act, and the Kochs' claims were governed by thePVA. Because the lights above the stairwell not fully illuminate, the court found that the UnitedStates failed to exercise reasonable care to prevent injuries, thereby breaching a duty owed toKoch. Because Koch undoubtedly suffered personal injury, the remaining question was whetherthe negligence of the United States caused his injuries. The United States argued Koch could notestablish causation, because all of his injuries resulted from pre-existing conditions and becauseKoch failed to use reasonable care under the circumstances. The court rejected both arguments,holding that the United States had failed to carry its burden of establishing Koch's damages werecaused by pre-existing conditions and that Koch acted with reasonable care under thecircumstances. The court awarded total damages in the amount of $2,833,337.09, which included$150,000 for loss of consortium. (USDC EDLA, July 7, 2015) 2015 U.S. Dist. LEXIS 88610

NEGLIGENCE AND §905(B) CLAIMS DISMISSED FOR LACK OF JURISDICTIONCRACE V. NORTHROP GRUMMAN SHIP SYSTEMS, INC. ET AL.

William Crace allegedly sustained injuries on board a ship, which was under construction byHuntington Ingalls, Inc. (HII). The ship was an amphibious transport dock that has since beencommissioned by the United States Navy as the USS New York. At the time of the accident, themajority of construction activity had been completed. Crace was on the ship as part of a finalinspection process, and claimed that, during the course of his inspection, he fell down a ladder inone of the ship's compartments. Crace claimed that the ladder was negligently designed andinstalled by HII and that HII negligently padlocked a chain restricting access to the hatch abovethe ladder, alleging that both acts of negligence contributed to his fall. Crace filed suit under§905(b) of the LHWCA and the general maritime law. HII moved to dismiss all of Crace’sclaims, seeking dismissal of Crace’s §905(b) claim because it was not the owner pro hac vice ofthe vessel involved, and dismissal of Crace’s maritime negligence claim for lack of jurisdiction.Because the court concluded that it lacked maritime jurisdiction over the matter, a necessaryprerequisite to a 905(b) claim, the court declined to address HII’s pro hac vice arguments. Thecourt noted that a tort does not fall within admiralty jurisdiction unless there is a significantrelationship between the tort and a traditional maritime activity. The court found that Crace hadnot plausibly argued that his claims had a significant relationship to a traditional maritimeactivity. To the contrary, it is abundantly clear that his claims are related to shipbuilding, anon-maritime activity. Accordingly, Hii’s motion to dismiss Crace’s §905(b) claim was granted.Crace moved to amend his complaint to assert substantially similar claims pursuant to Louisianalaw. HII conceded that Crace could bring state law claims, as an alternative to his maritimeclaims (and has no opposition to the amendment), but argued that it was entitled to governmentcontractor immunity from those claims. The court granted Crace’s motion to amend. Because thecourt permitted Crace to assert state law negligence claims, the court addressed HII’s immunityarguments. Turning to the merits of the defense, the court noted there was no dispute that the suitwas one for defects in military equipment. The crux of the dispute was whether HII haddemonstrated that the United States approved reasonably precise specifications, which the courtagreed HII had done, concluding that the specifications at issue were reasonably precise. Theinstallation of the ladder conformed to the Navy's specifications, and Crace failed to argue thatHII was aware of any dangers in the ladder that were unknown to the United States, nor wasthere any evidence of any such dangers. Accordingly, the court concluded that HII was entitled

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to immunity with regard to Crace’s design defect claim. However, the court also noted that HII’simmunity defense did not seriously address Crace’s allegation that there was a chain restrictingaccess to the hatch and that the chain was padlocked at the time of the accident. HII simplyclaimed that Crace was mistaken and that the chain was not padlocked. The court declined toentertain this argument on summary judgment. Because there is a genuine factual disputeregarding whether the chain was padlocked, the court must denied HII’s motion as to this claim.HII’s motion on the issue of maritime jurisdiction and Crace’s motion to amend were granted.HII’s plea for government contractor immunity was granted in part and denied in part. Crace’s§905(b) claim, maritime negligence claim, and his state law claim related to the allegedlydefective design of the ladder were dismissed with prejudice. Crace’s amended state lawnegligence claim related to the padlocked chain remained pending. (USDC EDLA, July 8, 2015)2015 U.S. Dist. LEXIS 88604

UNSAFE STAIRWELL OR WEAK KNEES? QUESTION OF FACTMUELLER V. BOLLINGER SHIPYARDS, INC., ET AL.

This personal injury lawsuit arose from Thomas Mueller's claim that he slipped and fell whileinspecting a vessel at Bollinger Shipyards, Inc. The City of New York had contracted withBollinger to construct three motor barges, one of which was the barge Mueller allegedly fell on.The City provided the plans and specifications for the construction of the barges and the Cityretained the right to inspect, schedule, approve, or reject any phase of construction. Mueller wasworking for the City, at the time of his alleged injury, as a Captain and Environmental, Healthand Safety Coordinator. His position was shoreside and included going aboard vessels andinspecting them for the City. Mueller was holding a notebook and his raincoat as he wasdescending the port exterior stairway of the barge, when his left foot slipped forward and off astair tread and he fell. Mueller contended that he injuries he allegedly sustained in the fallrequired several surgeries. Mueller sued claiming Bollinger was negligent in allowing Mueller touse the port exterior stairway before a non-skid surface was applied. Bollinger movedcontending it was entitled to judgment as a matter of law because the stairs were not dangerousbut were wet, which was an obvious and apparent condition; and the true cause of Mueller’sinjuries was his own negligence in descending wet stairs, knowing he had weakened knees, withhis hands occupied. Alternatively, Bollinger contended it was immune from liability becausethey built the stairs according to specifications provided by the City of New York. WhileBollinger argued that the City approved the paint schedule, there was other evidence that tBollinger scheduled the required non skid coating work according to industry standards. Thecourt noted that Bollinger had failed to produce any of the City's paint schedule or the industrycustoms to resolve for purposes of summary judgment its own conflicting evidence. The courtalso found that a genuine issue of material fact was presented concerning whether the wetstairway without the non-skid coat was unreasonably dangerous. Mueller alleged that the causeof the fall was the lack of anti-skid material in the stairway and its wet condition. The courtfound that this was obviously a classic factual controversy concerning what was the cause, or thecauses, of the accident. Finally the court found that the record before it did not resolve the issueof whether Bollinger was adhering to the City's schedule or industry customs (or both).Bollinger’s motion for summary judgment was denied. (USDC EDLA, July 22, 2015) 2015 U.S.Dist. LEXIS 95440

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NO SEAMAN STATUS EQUATES TO NO UNSEAWORTHINESS FOR LONGSHOREMANWILLIS V. MCDONOUGH MARINE SERVICE, ET AL.

Henry Willis Jr. was allegedly injured after he tripped and fell on a temporary stair set used toaccess an offshore module placed on a barge owned by McDonough Marine and bareboatchartered to TETRA Applied Technologies, LLC. Near the top of the stair set Willis caught hisfoot a piece of grating and he tripped and fell while carrying approximately 45 pounds of gearand equipment. At the time of the incident, Willis was employed by Omega Natchiq as apainter/sandblaster. The subject module was owned by non-party Poseidon and was beingprepared for ultimate transport to an offshore platform also owned by Poseidon. Willis filed a§905(b) claim under the LHWCA against McDonough and TETRA. Both parties moved forsummary judgment, arguing that neither of them owned the stair set on which Willis wasallegedly injured, nor did either party have responsibility for its placement on the barge. Absentprivity of ownership, defendants argued, the stair set may not be considered an appurtenance ofthe vessel such that defendants would be liable for injuries caused thereby. Further, defendantsargued Willis had failed to present any evidence that either defendant breached any of theScindia duties, applicable to workers under the LHWCA. Willis opposed the motion and arguedthat issues of fact sufficient to prevent summary judgment existed as to application of theLHWCA and his "Sieracki seaman" status. Willis also moved to file a second amendedcomplaint, in which he leave to clarify assertion of his seaworthiness claim. The court initiallynoted that Willis was injured on navigable waters, and he was so injured in the course of hisemployment, it was apparent that he satisfied both the situs and status elements of LHWCAcoverage and was entitled to bring claims for maritime negligence against McDonough Marineand TETRA if he could establish a breach of any of the three Scindia duties. The uncontrovertedrecord evidence revealed that the stair set on which Willis was injured, and which he complainspresented an unreasonable risk of harm, was not placed on the barge by either defendant. Thecourt found that Willis had not shown that he would be able to establish any breach of theScindia duties on the part of defendants. The court further found that the weight of authority hadconcluded that the doctrine of "Sieracki seaman" had been abolished, not only for workerssubject to the Longshore Act, but for other longshore and harbor workers as well. Appurtenancestatus of the stair set was only relevant if Willis was entitled to bring a cause of action forunseaworthiness, which required him to allege his injury was caused by a defective condition ofthe ship, its equipment or appurtenances. Since Willis was not a seaman under the traditional or"Sieracki" definition of that term, he had no unseaworthiness claim. In light of the foregoing, thecourt granted defendants' motion for summary judgment. Willis’s motion for leave to amend wasdenied. (USDC EDLA, June 18, 2015) 2015 U.S. Dist. LEXIS 79788

COURT REJECTS REMOVAL PURSUANT TO FEDERAL OFFICER STATUTESAVOIE V. PENNSYLVANIA GENERAL INSURANCE CO., ET AL.

Joseph Savoie, who had contracted mesothelioma, filed a claim in state court alleging that hewas exposed to asbestos during the period in which he was employed by Huntington Ingalls, Inc.in various positions from approximately 1948 through 1996. Subsequent to filing his lawsuit,Savoie died as a result of his mesothelioma. Decedent's surviving wife and children then filedan amended petition for damages, joining the lawsuit, and seeking survival and wrongful death

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damages pursuant to Louisiana law. Defendants removed the lawsuit to federal court, assertingthat the court had subject matter jurisdiction over the matter pursuant to the Federal OfficerRemoval Statute, 28 U.S.C. §1442. Plaintiff filed a motion seeking remand of the matter to statecourt, arguing that the Federal Officer Removal Statute did not provide a basis for federaljurisdiction. Defendants argued that the federal government exercised such extensive controlover the construction of and safety regulations associated with the construction of vessels for theU.S. Navy and U.S. Coast Guard so as to warrant removal pursuant to the Federal OfficerRemoval Statute. Plaintiff argued that the factual circumstances and defendants' arguments insupport of removal were virtually indistinguishable from a long list of cases involving the samedefendants, all of which had been remanded. Defendants adhered to the position that theseprevious decisions were erroneous, and requested that the court instead follow decisions of theMiddle District of Louisiana, in which that court declined to remand six cases with similarfactual circumstances and nearly identical arguments for removal. The court found thatdefendants had failed to present the court with evidence that the federal government restrictedtheir ability to warn its employees of their exposure to asbestos and the related dangers.Defendants' assertions that federal inspectors associated with the U.S. Navy and U.S. CoastGuard had a pervasive presence at the worksite, and that they controlled every aspect of theshipbuilding process, including safety regulations, were in direct conflict with the evidence inthe record. In light of this, the court concluded that defendants had failed to show that removalwas appropriate pursuant to the Federal Officer Removal Statute for Plaintiffs' failure to warnclaims. As in Wilde, the court construed plaintiffs' claims for strict liability as claims essentiallybased in negligence. Despite evidence that the federal officers mandated defendants’ use of theasbestos-containing materials, the court found that defendants had failed to present any evidencethat the federal government mandated how defendants handle these materials. Becausedefendants had failed to satisfy the causal nexus requirement. As such, removal pursuant to theFederal Officer Removal Statute was not warranted. Plaintiff’s motion to remand was granted.(USDC EDLA, June 8, 2015) 2015 U.S. Dist. LEXIS 73818

COURT DENIES ALL PENDING SUMMARY JUDGMENT MOTIONS IN OCSLA CASELEWIS V. HELMERICH & PAYNE INTERNATIONAL DRILLING CO, ET AL.

Robert Lewis, an employee of Bay Ltd., a subsidiary of Berry G.P., filed suit under the OuterContinental Shelf Lands Act (OCSLA), alleging that, while he was working on the Ram-Powelltension-leg fixed platform, he was allegedly injured when he slipped on an oily deck, thentripped on a pile of material and hit his left elbow. Lewis also alleged that he suffered a herniateddisk along with damage to other discs, which resulted in epidural steroid injections to hiscervical spine and lumbar spine, an ulnar transposition surgery and an L5-S1 diskectomyrecommendation. Lewis claimed that prior to his alleged injuries he had informed Bay and Shellsafety personnel that there was a hazardous pile of materials impeding his work duties. Lewisalso alleged that the employees of Sparrows and Nabors, crane operators, were informed of thepile of materials. According to Lewis, Defendants failed to remedy the hazardous condition andfailed to properly clean the platform. Nabors moved for summary judgment arguing that, as amatter of law, it owed no duty to Lewis, or did not breach such duty if owed. Sparrows alsomoved for summary judgment arguing that it has no liability for the accident because it had nocrane operators on the platform. Shell and Helmerich & Payne International Drilling Company

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argued that Lewis's claims were barred under the assumption of the risk doctrine. The courtdenied all the summary judgment motions, finding that significant disputed facts demonstratethat the issue of whether the injury was foreseeable by each defendant was pregnant withcontested facts. There were genuine issues of material facts regarding whether Nabors andSparrows owed a duty to Lewis, and whether they breached such a duty. There was also agenuine dispute of material fact as to assumption of the risk. Significantly, the parties disputewhether oil played a role in causing Lewis's fall. According to Lewis's deposition testimony, itdid. According to the accident report cited by the defendants, it did not. As this disputed fact wasmaterial to the applicability of assumption of the risk, summary judgment was inappropriate onthe issue. (USDC EDLA, May 6, 2015) 2015 U.S. Dist. LEXIS 61249

New Jersey

ANOTHER REMOVAL ACTION BITES THE DUSTSIMMERMAN V. EIC ASSOCIATES, INC. ET AL.

William Simmerman was employed by EIC Associates, Inc. as a dock builder, on a barge sittingin navigable waters, working on a construction project when his foot went through a dilapidatedmat, causing him to fall and allegedly sustain an injury. Simmerman and his wife filed acomplaint in state court, against EIC and several other defendants, asserting causes of action fornegligence and unseaworthiness, as well as claims under general maritime law, the Jones Actanda § 905(b) claim under the LHWCA. EIC removed the case to federal court on grounds ofdiversity, federal question, and admiralty jurisdiction. Simmerman moved to remand the case tostate court, arguing that the removal was defective because EIC and another defendant failed toobtain the consent of all defendants and that removal was prohibited because EIC is a citizen ofNew Jersey. EIC opposed the motion arguing that plaintiffs did not file a separate Notice ofMotion with their moving papers as required by FRCP 7.1, warranting denial of the remandmotion. Defendants also argued that removal was not prohibited, notwithstanding that EIC is acitizen of New Jersey, because the case was also removed on federal question and admiraltyjurisdiction. Finally, defendants maintained that the other defendants were not properly servedwith process and therefore their consent was not required for removal. While the courtacknowledged its concern with plaintiffs' non-adherence to the Rule, in the interest of justice, itexercised its discretion not to require plaintiffs' strict compliance, finding d no discernableprejudice to defendants. Noting that the burden was on the defendants to demonstrate that thecase was properly before the court, the court found that defendants failed to establish jurisdictionand therefore the case should be remanded. The court found there was no diversity jurisdiction,federal question jurisdiction and no admiralty jurisdiction. Plaintiffs’ motion to remand wasgranted. (USDC DNJ, September 11, 2015) 2015 U.S. Dist. LEXIS 133099

COURT GRANTS SUMMARY JUDGMENT ON BOTH §905(B) & SEAMAN CLAIMSMERRELL V. WEEKS MARINE, INC.

William Merrell was employed by Weeks Marine, Inc. as a safety manager in its construction

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division. During the course of its construction projects, Weeks uses crane barges, materialbarges, and supporting vessels, such as tugboats and crew boats. Throughout his employment,Merrell oversaw two major marine construction projects on land and aboard vessels performedweekly safety inspections of each jobsite and of various vessels. Merrell also conducted dailysafety inspections by walking around barges, cranes, and other equipment. On the day of hisalleged injury, Merrell conducted a safety meeting aboard the Weeks 271 crane barge. Merrellalleged that, while he was giving his presentation at the crew safety meeting, the crane on thebarge started up unexpectedly and that as he was attempting to move away from the swing radiusof the crane, he fell in a crevice in wood matting and injured himself. Merrell filed suit againstWeeks, asserting claims for Jones Act negligence, unseaworthiness, maintenance and cure, and a§905(b) claim under the LHWCA. Weeks moved for summary judgment, which Merrell timelyopposed. Merrell testified that he spent forty to forty-five percent of his work time aboardWeeks’ vessels, but Weeks disputed that the record supported such an estimate, especially inlight of the fact that the first portion of one of Merrell’s projects was performed on land withoutthe use of barges. Merrell contended that his job duties were integral to the vessel’s missionbecause it was his duty to maintain safe work conditions which would prevent injury to crewmembers and damage to the barge, thereby minimizing the potential for unnecessary workstoppage or delay. The court found that, while Merrell’s safety assurance role could not bediscounted, it was nonetheless a tangential role that fell short of entitling him to seaman status.Instead, the court found that Merrell’s duties related to the implementation of safety measurescrafted to protect the workers who actually performed the vessel’s function - construction work.As such, Merrell failed to meet the first requirement for seaman status. The court also found thatthere was no genuine issue of material fact as to the second element of the Chandris test. First,Merrell’s assertion that he worked an estimated forty to forty-five percent of his time aboardWeeks’ vessels had not been demonstrated in the record. Instead, the record showed that Merrellspent less than thirty percent of his time aboard Weeks’ vessels, ventured aboard them onlywhile they were docked, and never went to sea. Second, Merrell’s job responsibilities, whichrelated to construction site safety inspections, did not relate to the operation or maintenance ofWeeks’ barges. Finally, the court noted that Merrell did not dispute that he had never beenexposed to the perils of the sea or the hazards and disadvantages faced by seamen. Therefore, thecourt held that Merrell did not qualify as a seaman under the Jones Act as his job duties are moreconsistent with the duties of a land-based corporate officer than with those of a seaman. Merrellargued that even if the court found him ineligible for seaman status, he was nonetheless entitledto recover damages from Weeks under §905(b) of the LHWCA. Merrell contended that hisinjury resulted from Weeks’ negligence as a vessel owner, because the crew that refitted thebarge was not involved in marine construction and was not expected to participate in theconstruction work for which Barge 271 was being refitted, and his injury occurred after theWeeks 271 was moved to the James River but before it was actually engaged in the constructionwork. The court found that Merrell’s argument was misplaced, in that it treated the bargerefitting project completed by Weeks’ construction division as work performed by a vesselowner. Weeks’ construction division is staffed with construction personnel who prepare bargesfor Weeks’ construction work. The court found that the construction division crew placedmatting upon the deck of Barge 271 to facilitate the operation of a crane to be used on theconstruction project on the James River. The court held that Weeks was acting in its capacity asan employer, not a vessel owner, at the time that Barge 271 was allegedly negligently refitted.

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Because Weeks was acting in its capacity as an employer as the time Merrell was allegedlyinjured and Merrell could have quickly and reasonably avoided the open and obvious dangerouscondition that caused his injury, the court concluded that Weeks was also entitled to summaryjudgment on Merrell’s LHWCA claim. Weeks’ motion for summary judgment was granted.(USDC DNJ September 16, 2015, UNPUBLISHED) 2015 U.S. Dist. LEXIS 123439

A Port of Elizabeth dockworker was struck and killed by a dock loader August 7. Judy Jones, 49,was pronounced dead at the scene by emergency response personnel. According to reports,Jones’ leg was severed in the incident and she bled to death. Authorities say the top loader’soperator had been drinking before the accident and criminal charges will be filed. Jones workedat the Port Elizabeth for 18 years. Port Elizabeth is a major component of the Port of New Yorkand New Jersey and is APM Terminals’ largest terminal on the east coast of North America.

New York

PARTIAL SUMMARY JUDGMENT GRANTED & SANCTIONS DENIED IN §905(B) CASEMALDONADO V. HAPAG-LLOYD SHIPS, LTD., ET AL.

Francisco and Bridgette Maldonado brought an action under §905(b) of the LHWCA, the generalmaritime law and New York state law seeking to recover damages for injuries allegedlysustained by Maldonado while working as a lasher aboard a Hapag-Lloyd container ship. AsMaldonado grabbed a turnbuckle, he was shocked by a torn black electrical cable, that he hadnot seen earlier, which was touching or tangled around the turnbuckle. Maldonado sued theowners of the vessel, the vessel in rem, and New York Container Terminal, Inc. and HowlandHook Container Terminal, Inc. (stevedore defendants), which operated the terminal where thevessel was docked for unloading. The defendants moved for summary judgment to dismissMaldonado’s complaint, arguing that Maldonado could not show a breach of their "turnoverduty" since the accident occurred over nine and a half hours after the turnover and that theconditions leading to the accident had existed for a sufficiently long time for defendants todiscover. Specifically, they contended there was no evidence of any defective or brokenelectrical cable at the time of turnover. On the record presented and drawing all inferences infavor of Maldonado, the court did not agree, noting that defendants’ attempt to rule out otherexplanations rested on disputed or insufficient facts and were insufficient to establish as a matterof law that they did not breach their turnover duty. While acknowledging that it was not itself abasis to find breach of the turnover duty, a number of people testified to the poor housekeepingpractices on the vessel, increasing the likelihood that a live electrical cord could be hiddenaround a metallic piece of equipment prior to turnover. Moreover, there were issues of factwhether the broken live cable was caused by the removal of a reefer container without havingfirst been unplugged. Had the broken cable been present prior to unloading and laid hidden untildischarge of the 21 containers in the bay, a jury could find that it was not an obvious hazardgiven defendants's housekeeping practices and the fact the cord was black, instead of yellow, andnot easily seen in dark conditions, and the placement of the cord vis-a-vis the turnbuckle.Defendants also argued that they did not breach the duty of active involvement since controlover the work area had turned over to the stevedore. This court agreed and granted defendants

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summary judgment on that issue as well. There was no evidence that there were any vesselemployees actively involved in any aspect of cargo operations prior to the accident. For similarreasons, the court found no duty to intervene. The vessel defendants' motion for summaryjudgment was denied in part and granted in part. (USDC EDNY, May 1, 2015) 2015 U.S. Dist.LEXIS 57540

In another order in the same case, the court denied Maldonado’s motion for spoliations sanctionsagainst the vessel defendants. Maldonado argued that while he was being assisted off the vesselafter the accident, members of the vessel's crew removed the electrical cable from the scene ofthe accident. Defendants did not produce the electrical cable for inspection during discovery.Although several photographs of the electrical cable were taken by an employees of thestevedore defendants, Maldonado argued that his expert could not offer an opinion with areasonable degree of engineering certainty as to the cause of the accident without examining theactual electrical cable. Although there was no evidence as to what happened to the electricalcable after it was removed by the vessel's crew members, the court refused to find that the vesselowners acted with a "culpable state of mind" sufficient to warrant sanctions. There was noevidence to suggest that the vessel owners intentionally discarded the electrical cable. Morelikely, if the crew members removed the electrical cable, it was because the cable was a potentialhazard to the workers in the area. The court pointed out that the missing electrical cable wouldhave been relevant to both parties in establishing their cases on liability. There was no extrinsicevidence submitted that would suggest that had the electrical cable been preserved it would havebeen more likely to support Maldonado’s theory that it was used for deck work and left behindby the vessel's crew members. Since there were photos of the electrical cable from the scene ofthe accident, the parties have some basis on which to argue the type of cable at issue and how itmay have been used. Maldonado’s motion for spoliation sanctions was denied. (USDC EDNY,May 1, 2015) 2015 U.S. Dist. LEXIS 57534

Texas

COURT DISMISSES RETALIATION COMPLAINT UNDER LHWCAWARD V. KIRBY INLAND MARINE LP

Jerrid Ward filed suit against Kirby Inland Marine, LP, alleging that Kirby terminated hisemployment in retaliation for making a claim for compensation under the Longshore and HarborWorkers' Compensation Act (LHWCA). Kirby moved to dismiss the complaint, arguing that thecourt did not have jurisdiction, because Ward had not exhausted his administrative remedies andbecause his suit was barred by Ward's prior settlement of claims related to his injury. Kirbyargued that any claim for retaliation under the LHWCA § 948a must first be brought to thedistrict director of the Office of Workers' Compensation Programs under the umbrella of theUnited States Department of Labor and any appeal of the final decision in the administrativeprocess in this district will bypass the district court and go directly to the Fifth Circuit Court ofAppeals. Ward’s response offered no argument to the contrary other than his observation that thecourts that have addressed the issue are not in the Fifth Circuit. Regardless of whether the priordecisions are considered binding precedent, the court found these prior opinions were

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well-reasoned and appropriate constructions of the operation of the LHWCA. The court grantedKirby’s motion to dismiss and Ward’s complaint was dismissed without prejudice for lack ofjurisdiction under Rule 12(b)(1). (USDC SDTX, October 13, 2015) 2015 U.S. Dist. LEXIS138958

LONGSHOREMAN’S §905(B) CLAIM DISMISSED ON SUMMARY JUDGMENTABSTON v. CROWLEY AMERICAN TRANSPORT LINE, INC., ET AL.

Joseph Abston, a longshoreman for Ports America, was assisting in the unloading and loading ofcargo aboard a vessel managed and owned by Jüngerhans Maritime Services GmbH & Co. KGand JMS Schiffahrtsgesselchaft mbH & Co. KG (defendants) respectively. To unload cargo frombeneath the deck, the deck hatches needed to be opened and the protective railing (safetyexpansion) at the edge of the deck, which was in the path of the opened hatches, had to beremoved. At some time thereafter during cargo operations the hatches were closed so cargocould be placed on the deck's surface. When the hatches were closed the ship's crew did notreplace the railing. Work was suspended in the afternoon during a heavy rainfall which left thedeck and the exposed cargo wet and slippery. When operations resumed, in order to unhook oneof the straps used to load the flat rack, Abston climbed its edge by balancing one foot on what hecalled a hinge. Unfortunately, but foreseeably, allegedly suffering numerous injuries from thefall. Abston claimed his fall could have been avoided if the railing had been replaced so he couldhave grabbed it before falling to the lower deck. Abston filed suit, under §905(b) of theLHWCA. Defendants moved to dismiss Abston’s claim, arguing that the evidence wasinsufficient to support a verdict against them for the breach of any of the three duties owed by aship owner under Scindia. Abston countered by arguing that the defendants breached the activecontrol duty by ordering the flat racks placed so near to the edge of the deck and the duty tointervene by not replacing the railing after the deck hatches had been closed. The court observedthat Abston seemed to concede that he could not show a breach of the turnover duty and thecourt agreed. The initial removal of the railing was necessary to open the deck hatches and theirabsence was, admittedly, an open and obvious condition. Abston argued that the defendants'order to place the flat racks so close to the edge of the deck without the railing in place was abreach of the active control duty. The court, however, found his argument unpersuasive. Merelydetermining the placement of cargo or preparing the cargo loading plan will not constitute activecontrol of the cargo operations being performed by the stevedore's longshoremen. Abston alsoargued that the defendants had the duty to intervene and replace the railing once the deck hatcheswere closed and before cargo was loaded on the deck. However, the court was convinced bytestimony that it was the customary practice to leave the railing removed. There was also ampleevidence that Abston exercised obviously improvident judgment just prior to his fall. It wasobvious to him that the railing was not up. Nonetheless, he tried for the first time in his life toclimb up the end of the flat rack, a procedure every fact witness testified was dangerous andimproper, even forbidden. Abston did so with the admitted knowledge that the conditions werewet, slippery and unsafe following the rain. He did not use or request a fall protection harness,nor did he utilize the ladder that was available. Finally, there was no evidence that thedefendants had actual knowledge that the "customary" absence of the railing constituted anunreasonably dangerous condition for longshoremen. The court found that the evidence was

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insufficient to establish the defendants breached any duty owed to Abston. Defendants motionfor summary judgment was granted and Abston’s complaint was dismissed. (USDC SDTX,September 10, 2015) 2015 U.S. Dist. LEXIS 120421

STAFFING COMPANY PREVAILS ON BORROWED SERVANT ARGUMENTSANTACRUZ, ET AL, V. HERTZ EQUIPMENT, ET AL.

This maritime case stems from a barge fire. Hutco is a staffing agency that provides laborers tovarious companies. One of Hutco's employees, Luis Andino, was assigned to work at theshipyard of Texas Barge & Boat (TBB), which repairs barges and other vessels. About twoweeks into Andino's time at TBB, a barge in the shipyard caught fire. The morning of the fire, aTBB supervisor had assigned Andino to fire watch. That task involved monitoring andextinguishing any fires that broke out in his area of the barge. But Andino left his post withoutwarning to get a drink of water, and the fire broke out during his absence. Two of the plaintiffscould not escape the barge and tragically died. The other plaintiffs claimed to have sufferedsevere emotional distress as a result of the incident. Hutco argued that it was not vicariouslyliable for any negligence on Andino's part. It filed a summary judgment motion invoking theborrowed servant doctrine, arguing that it was not vicariously liable for Andino's conductbecause he was the borrowed servant of TBB. In reviewing the Ruiz factors, with particularweight placed on the control factor, the court noted Hutco assigned Andino to TBB and had norole in assigning him tasks or directing his work for TBB. Instead, Andino reported to TBB forhis assignment and carried out that assignment pursuant to TBB's instructions. The court’sreview of all the submitted evidence, construed in the light most favorable to the plaintiffs,showed that the control factor weighed in favor of finding that Andino was a borrowed servantof TBB, as did the clear majority of the other factors. Accordingly, the court concluded thatAndino worked as a borrowed servant of TBB and that it could not be vicariously liable forAndino's negligence. However the court noted that its borrowed servant holding did not precludedirect liability on Hutco's part that may have contributed to the accident. Because the "borrowedservant" doctrine did not bar the direct liability claims, and some evidence may support them, thecourt declined to enter final judgment in favor of Hutco. Judgment was entered in Hutco's favoron all claims based on vicarious liability, to the extent there were any. The court declined toissue a final judgment in Hutco's favor because of the pending direct liability claims. (USDCSDTX, April 27, 2015) 2015 U.S. Dist. LEXIS 66007

Washington

STEVEDORE LEFT ON THE HOOK FOR ACTIONS OF ITS FOREMENELMI, ET AL. V. SSA MARINE, INC., ET AL.

SSA Marine, Inc. and SSA Terminals, LLC operate a stevedoring business and leases land fromthe Port of Seattle for its operation. SSA's business involves the loading and unloading of vesselsby longshore workers. Plaintiffs Kaiser Said Elmi, Tesfarghabar Berhane, and MohamedMuhiddin were all short-haul truck drivers of East African dissent who worked at the Port ofSeattle, who were self-employed and contracted with various trucking companies that dispatchedthem. Plaintiffs and the trucking companies they contract with have no contractual relationshipwith SSA. As short-haul truck drivers, plaintiffs' jobs are to pick-up and haul shipping containersbetween terminals at the Port of Seattle and the rail yards as well as other nearby locations. Theevents giving rise to this lawsuit primarily occurred at Terminal 30, which SSA operates. After

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several altercations with SSA foremen on Terminal 30, the plaintiffs filed suit with causes ofaction including assault and battery, discrimination under 42 U.S.C. §1983, racial/national origindiscrimination under Title VII, intentional infliction of emotional distress, racial/national origindiscrimination under RCW 49.60.030, and negligence. SSA moved for summary judgment onplaintiff’s claims and to strike several of plaintiffs' exhibits and claims made within their reply tothe motion for summary judgment. After hearing all the evidence in connection with SSA’ssummary judgment motion, the court found that, while SSA’s foreman was not charged with theenforcement of SSA's terminal rules, there was a genuine issue of material fact as to whether thealleged assaults were done in furtherance of SSA's business and within the scope of employment.After examining the tests for plaintiffs' §1983, the court concluded the claim could not surviveunder any of the tests considered by the court and summary judgment dismissal was appropriatefor the claim. The court also found that plaintiffs had failed to first exhaust administrativeremedies with the EEOC under Title VII. Accordingly, the court concluded that grantingsummary judgment on the Title VII claim was appropriate. With respect to the plaintiffs’ causeof action for intentional infliction of emotional distress, the court concluded that there was agenuine dispute of material facts as to whether there was outrageous conduct and whether SSAratified the conduct of its foremen. With respect to plaintiffs’ discrimination claim under RCW49.60.030, the court found that plaintiffs had failed to produce facts indicating that there was agenuine issue of material fact as to whether Terminal 30 was a public accommodation. Finally,with respect to plaintiffs’ negligence claim, the court concluded that plaintiffs had raised agenuine issue of material fact as to whether SSA met their duty of care to plaintiffs.SSA’s motion for summary judgment was granted with respect to plaintiffs §1983 claims againstSSA and plaintiffs' racial and national origin discrimination claims in violation of Title VII andRCW 49.60.030, and dismissed those claims. SSA’s motion was denied in part with respect toplaintiffs' assault and battery, intentional infliction of emotional distress, and negligence claims.SSA motion to strike was denied. (USDC WDWA, May 18, 2015) 2015 U.S. Dist. LEXIS 64863

BRB DecisionsLOCAL NATIONAL’S AFTER HOURS FISHING INJURY HELD DBA COMPENSABLE JETNIL V. CHUGACH MANAGEMENT SERVICES, ET AL.

Edwin Jetnil, a citizen of the Republic of the Marshall Islands (RMI), resides on Third Island, aremote Pacific coral atoll in the RMI. The atoll is home to the U.S. Army Space and MissileDefense Command’s Ronald Reagan Ballistic Missile Defense Test Site. Jetnil worked as apainter for companies that successively held contracts to provide logistical support for theMissile Defense Test Site. After work hours, while wearing flip-flop style sandals, Jetnil wentfishing on the reef on Gagan Island for his dinner, and slipped and cut his right foot on the coral.Gagan Island is restricted to persons assigned to work there and the only access to the island isby employer-provided boat or helicopter. Follow his foot injury, Jetnil worked for two moredays, but then sought medical attention for his right foot laceration at an RMIgovernment-operated clinic. After examination of his foot, Jetnil was flown by helicopter to ahospital, where he was diagnosed with a severe infection of the right foot with necrosis and gasgangrene. Jetnil’s right leg was eventually amputated below the knee. Jetnil filed a claim underthe DBA extension of the LHWCA. His employer controverted the claim on the basis thatJetnil’s injury did not arise within the scope and course of his employment and that consequentlythe claim was not compensable under the DBA. Following a formal hearing, the ALJ found thatthe obligations and conditions of Jetnil’s employment created a zone of special danger out of

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which his injury arose, and thus the injury is compensable under the DBA. The ALJ furtherfound that Jetnil had not yet reached MMI, that he was unable to perform his usual work as apainter, and that employer did not identify any suitable alternate employment. Theadministrative law judge therefore awarded Jetnil continuing temporary total disability benefitsand medical benefits. Jetnil’s employer appealed the ALJ’s decision, contending the ALJcommitted legal error in applying the “zone of special danger” doctrine to a DBA employee wasinjured during off work hours while working in his home country. Jetnil and the Director, OWCPresponded, in separate briefs, that the ALJ properly determined that Jetnil’s injury on GaganIsland arose from the obligations and conditions of his employment consistent with the zone ofspecial danger doctrine. The BRB found no merit in the employer’s contention that applicationof the zone of special danger doctrine to local nationals contravened the legislative intentunderlying the DBA. The BRB also disagreed with the employer’s argument that application ofthe zone of special danger doctrine to local nationals injured during off-duty hours in their ownhomelands was foreclosed, as a matter of law, by O’Leary and its progeny. The Board declinedemployer’s invitation to hold as a matter of law that the zone of special danger doctrine maynever be applied in cases involving local nationals who are injured while working in their homecountries. Instead the Board held that, for DBA cases involving the application of the zone ofspecial danger doctrine, the question of whether the doctrine is applicable to a claim filed by alocal national is a factual determination, and the ALJ’s findings regarding the doctrine aresubject to review based on the substantial evidence standard. The Board also held that Jetnil’soff-duty reef fishing injury occurred within the zone of special danger, noting that the limitedfood selections provided by employer for Jetnil and his co-workers were not suitable for Jetnil’sdiabetic condition and that Jetnil’s doctor had recommended he eat fish whenever possible.Contrary to employer’s contention that these factors were irrelevant to the zone of special dangerinquiry, the Board noted it was axiomatic that an employer takes its employees as it finds them.Thus, the ALJ rationally found that Jetnil’s pre-existing diabetes and the dietaryrecommendations made because of that condition, coupled with the limited food selectionsprovided by employer on Gagan Island, were factors that made reef fishing a foreseeable activityduring Jetnil’s off-duty hours on Gagan Island. The administrative law judge’s decision andorder was affirmed. (BRB No. 14-0361, July 21, 2015, PUBLISHED) Updater Note: Thanks to John Walker, of the firm Schouest, Bamdas, Soshea & BenMaier,Houston, TX, for sharing this decision with me, which I am also happy to share with my long-suffering readers.

Significant ALJ DecisionsALJ APPLIES NEW ORLEANS DEPOT STANDARD TO RAIL YARD WORKERWATSON V. RAIL SWITCHING SERVICES, INC., ET AL.

Jesse Watson brought a claim for benefits under the LHWCA, against Rail Switching Services,Inc. (RSSI), alleging that he was exposed to workplace noise, which caused his alleged hearingloss. Watson became aware of the relationship between his employment and his hearing loss onSeptember 22, 2012, and notified RSSI on November 18, 2013. RSSI controverted the claim,which was eventually referred for formal hearing on the issues of situs and status, extent ofdisability, and entitlement to benefits under the Act. Watson began working for RSSI in 1992,operating switching engines as a trackman. Watson testified that he and other workers wouldtake turns driving the switching engines, while another person would couple and uncouple thecars, which can be a loud procedure and he did not wear ear protection during this time. Watson

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also testified when grain season would begin, he would pull cars over to a building where hewould unload the grain. This building was on a ship channel, with the silo next to that, and thenthere were about ten railroad tracks where box cars were switched. Finally, Watson testified hewas a member of the longshoreman’s union, when he was employed by RSSI, and didlongshoreman work. RSSI contended that Watson’s claim for hearing loss should be dismissedfor lack of subject matter jurisdiction and coverage under the Act, asserting that Watson failed tomeet the situs test under the Act because he did not work on, over, or adjacent to navigablewaters at any time. Further, RSSI contended that Watson did not meet the status test because hiswork, primarily the switching of rail cars, was not maritime employment that was integral ornecessary to the loading or unloading of a vessel. The ALJ found that Watson did not fulfill thesitus requirement, citing New Orleans Depot and Sherwin Alumina, noting that Watson failed tosatisfy both the geographical and functional components of the situs test, noting that under theNew Orleans Depot standard, the rail yard did not adjoin navigable waters because it was notcontiguous with, or touching or bordering on such waters. Nor was the rail yard customarily usedby RSSI for the loading or unloading of a vessel. Assuming arguendo that Watson establishedsitus coverage, the ALJ also found that Watson failed to meet the situs requirement, as he wasnot a ship repairman, shipbuilder, or shipbreaker, nor was he directly involved in the loading orunloading of a vessel while employed by RSSI. The ALJ found that Watson did not performwork that was an integral or essential part of the loading or unloading process, such that if hefailed to perform his duties, the loading process would come to a halt. Consequently, the ALJfound that Watson was not engaged in maritime employment and did not satisfy the statusrequirement of the Act. Watson’s claim was denied. (OALJ Case 2014-LHC-864, June 5, 2015)Updater Note: Thanks to John Walker, of Schouest, Bamdas, Soshea & BenMaier, Houston, TX,for sharing this case with me, and congratulations on the outcome.

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