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Monday, January 22, 2018

Jones Act Seaman News

Jones Act Seaman May Not Recover Nonpecuniary Damages from Third Party

The U.S. Court of Appeals for the Fifth Circuit ruled that a Jones Act seaman or his survivors cannot recover nonpecuniary damages from a non-employer third party. In the instant case, a seaman contracted (and eventually died from) silicosis while working as a sandblaster maintaining protective coatings on offshore oil platforms. Plaintiff seaman worked on vessels owned by defendant shipowner and wore allegedly defective hoods manufactured by defendant shoreside companies. The trial court held that plaintiff seaman (and then his survivors) were not entitled to recover nonpecuniary damages in the wrongful death suit against the shoreside manufacturers. Plaintiff survivors appealed.

Odds are Improving for Riverboat Casino Employees Seeking Jones Act Seaman Status

In 1991, casinos were legalized in the state of Louisiana through the passage of the Louisiana Gaming Act. Riverboat casinos have been operational in the state since 1993. The Louisiana Gaming Act allows for fifteen riverboat licenses with mandatory Coast Guard certification of the vessels. The Act allows for both dockside and riverboat gaming. Five other states have riverboat casino gambling: Iowa, Illinois, Indiana, Missouri and Mississippi. Although riverboat gaming has gained legal recognition in these states, riverboat casino employees have not had the same success in gaining seaman status under the Jones Act. The Jones Act (46 U.S.C. sec.

Engineer in Dredge is Jones Act Seaman

The U.S. Court of Appeals for the First Circuit ruled that an engineer employed on a dredge in navigation is a seaman for purposes of the Jones Act. This decision was rendered when the court’s earlier decision was reversed and remanded by the U.S. Supreme Court. Stewart v. Dutra Construction Company, Inc., No. 99-1487 (1st Cir., August 9, 2005).

Congressional, Maritime Leaders Support Jones Act on the Hill

Mark Buzby, U.S. Maritime Administrator

The House Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation held a hearing Wednesday on “The State of the U.S. Flag Maritime Industry” during which congressional and maritime leaders stressed the importance of the Jones Act. RADM Mark H. Mr. Mr. The Committee and those testifying expressed bipartisan support for the Jones Act and enforcement of the law. “In order for us to maintain the way of life as we know it as a nation that is secure and is able to project power, be it Navy power or commercial power, the Jones Act is intrinsic to that.

Seaman or Longshoreman: The Zone of Uncertainty

ILWU container crane operator at Port of Los Angeles. Photo courtesy the Port of Los Angeles

Historically in our industry, there has been a clear dichotomy between companies whose employees are seamen that are covered by the Jones Act and those that are longshoremen and covered by the Longshore and Harbor Workers’ Compensation Act (LHWCA). The difference was very simple, Jones Act employers and their seamen were responsible for vessel-based duties and operations. Longshore employers hired longshoremen that were land-based although they performed a portion of their duties aboard vessels.

How to Indentify a Jones Act Seaman

By Jeffrey S. The maritime law community is awaiting the next pronouncement by the U.S. Supreme Court pertaining to the definition of a Jones Act seaman. In February, the high court announced that it would review the decision of the First Circuit Court of Appeals in Stewart v. Dutra Construction Co., Inc. The definition of seaman has proven to be a nagging problem; this will be the fifth time since 1991 that the Justices have tackled some aspect of the question. Most injured maritime workers would prefer to pursue recovery as a "seaman". There are several reasons for this. First and foremost, the damages recoverable under the Jones Act are not limited to lost wages and benefits, but also include an important component for "pain and suffering".

US$2-Million Jones Act Settlement for Seaman

S.S. Cape Jacob: Photo Wiki CCL

Houston-based maritime law firm Schechter, McElwee, Shaffer & Harris recently obtained what is believed to be one of the largest settlements paid by the United States to a Jones Act seaman. According to court documents, their client, a 58-year-old seaman was working aboard the S.S. Cape Jacob, a military supply ship owned by the United States and operated by private contractor Matson Navigation, Inc.The vessel was docking in the port of Jangu, South Korea, on Aug. 2, 2010, when the man alleged that he was ordered to secure mooring lines to the dock.

Plaintiffs Cannot Be Seamen When Not Sail in Navigable Waters

In Solomon v. Blue Chip Casino, Inc., 2002 WL 1763935 (Ind.App. July 31, 2002), the court found the casino boat worker plaintiffs (a slot representative and a table games specialist) could not pursue Jones Act seaman claims against the vessel owner when the section of Trail Creek upon which the casino boat is moored in not "navigable in fact." The boat was situated in a "small, man-made, rectangular area of water that was dug out of dry land connected to Trail Creek by a narrow and shallow opening." The court found that while shallower draft recreational vessels may be able to, a commercial vessel such as the casino boat could not transit this two and a half feet deep section of Trail Creek out to Lake Michigan.

Diver Down!!! An Exception to the General Test for Seaman Status?

By James P. Nader & Joseph A. Once again we take that familiar voyage know as "determining seaman status." No matter how familiar the voyage there are always changes in the currents which guide your path. Seaman status is important because only a seaman may receive maintenance and cure, and pursue a claim for Jones Act negligence or unseaworthiness. The basic requirements for seaman status are well established in maritime law. In order to qualify as a seaman under the Jones Act, a person's employment duties must contribute to the mission of the vessel and be connected to an identifiable group of vessels in navigation. The United States Supreme Court has held that seaman status should be determined by the specific facts of each case.

An Exception to the Divers' Exception?

By James P. Nader & Rudolph F. An occupational study estimates that the number of commercial diving positions nationwide will grow to an anticipated total of 5,000 positions over the next decade. For the uninitiated, the focus of these commercial divers spans the gamut from extensive inspection of hulls and pipelines to the construction and repair of underwater structures to the demolition and removal of underwater obstacles, and onwards to the search and rescue of people and missing objects. While the commercial diving industry is certainly diverse, every diver shares a certain level of risk of injury when entering the water. Therefore…

Fifth Circuit Decision Defines Scope of Jones Act Employment

An important decision affecting vicarious liability for Jones Act employers for the acts of their employees was issued August 14, 2012 by the Fifth Circuit Court of Appeals. The decision, an action against Hercules Drilling Company represented by LeBlanc Bland, P.L.L.C. with offices in New Orleans and Houston, reverses the Eastern District of Louisiana’s earlier ruling, has significant implications for employers in the maritime industry, confirming the test for course and scope of employment for Jones Act employees. The decision results from a tragic case (Amanda Beech v. Hercules Drilling Company, LLC., No. 11-30415) in which an employee of Hercules Drilling Company, in violation of company policy, unintentionally brought a firearm to his job aboard a jack-up drilling rig.

For Payroll Purposes, is Your Seaman Really a Seaman?

© Carabay / Adobe Stock

For operational purposes, it is critical to know what type of employees you have on your vessel. Failure to do so could be expensive. As vessel operators, we pay close attention the provisions of the Jones Act and how they affect the operation, crewing and administration of our marine-based operations. A determination that your vessel-based crews are seamen under maritime law creates a different employment relationship when compared to employees designated as longshoremen or land-based employees.

Court Rules Punitive Damages Allowed in Unseaworthiness Claims

A recent ruling by the U.S. Fifth Circuit Court of Appeals clears the way for seaman to recover punitive damages in unseaworthiness claims, according to Jones Act attorney Matthew Shaffer. In the facts of the case, McBride v. Estis Well Serv., L.L.C., No. 12 – 30714, a man was killed and three others injured while working on a barge supporting a truck-mounted drilling rig in south Louisiana. The original lawsuit claimed negligence under the Jones Act and unseaworthiness under general maritime law. Shaffer, a Jones Act attorney with the Houston maritime law firm Schechter, McElwee, Shaffer & Harris, said the ruling is significant for injured workers.

Ship Owner May Sue Injured Seaman

The U.S. Court of Appeals for the Fifth Circuit ruled that a ship owner may assert a negligence and indemnity claim against its seaman-employee for property damage allegedly caused by the seaman’s negligence. In the instant case, plaintiff mate was injured when his ship collided with another ship. Plaintiff was on watch and in command of the ship at the time and allegedly left the wheelhouse in congested waters to attend to personal business. Plaintiff brought suit against the other ship and against defendant employer under the Jones Act and general maritime law. Defendant settled with the other ship and then filed a counterclaim against plaintiff. The trial court dismissed the counterclaim and defendant appealed.

Foreign Arbitral Awards Convention trumps Jones Act

The U.S. Court of Appeals for the Fifth Circuit ruled that a mandatory arbitration clause in a maritime employment contract is enforceable despite the plaintiff alleging a personal injury claim under the Jones Act. In the instant case, plaintiff entered into an employment agreement with defendant company that led to his working as a barge leaderman on an offshore oil and gas project in Nigerian waters. The contract provided for mandatory arbitration of all disputes. After plaintiff was severely injured while working on the barge, he brought suit under the Jones Act and general maritime law. Plaintiff contended that the Foreign Arbitral Awards Convention Act exempts contracts of employment of seamen from its coverage and thus the arbitration clause should be unenforceable.

Cruise Injury Attorney Recognized

Charles D. Naylor: Photo credit Charles D. Naylor

Charles D. Naylor, a Los Angeles maritime personal injury lawyer, becomes one of only 26 certified specialists in maritime law in California. Mr. Naylor, a Los Angeles cruise injury attorney , is now recognized by the State Bar of California as a Certified Legal Specialist in Admiralty and Maritime Law. To be eligible for certification as a specialist, an attorney must prove that Admiralty and Maritime Law is, and has been, a substantial part of their practice for at least five years and must meet practice area specific continuing education requirements.

Settling With An Unrepresented Seaman Making The Settlement Stick

Unfortunately, personal injury claims brought by seamen against vessel owners are part of everyday life in running a boat company. As such, vessel owners have become very sophisticated in the management of these claims. As the cost of litigating these matters is very high, often, the claim's handler will attempt to settle a seaman's personal injury claim prior to his retention of counsel and filing suit. In most cases, this is a win-win for both the employee and the company. The company is able to settle the claim with its employee quickly without engaging counsel or incurring the costs associated with litigation. The employee wins because he is able to keep 100 percent of the settlement without having an attorney take 30 to 40 percent.

Ruling on Permanently Moored Dockside Casino

The U.S. Court of Appeals for the Seventh Circuit ruled that, for purposes of the Jones Act, a permanently moored dockside casino is not a vessel in navigation and its employees are not seamen entitled to protection under the Act. In the instant case, the casino vessel was documented and inspected by the U.S. Coast Guard, but only got underway once each year for engine and maneuvering tests. The court held that the vessel was not engaged in the transportation of passengers or cargo and was thus not a vessel in navigation under the Jones Act. Personal injury claims asserted by employees under the Jones Act were therefore dismissed. Howard v. Southern Illinois Riverboat Casino Cruises, Inc., No. 02-3818 (7th Cir.)(HK Law)

Seaman’s Work Extends Beyond Insurance Coverage

The US Court of Appeals for the Ninth Circuit ruled that the marine coverage endorsement on the business insurance purchased by a ship operator did not provide coverage for the on-shore work being performed by a seaman when he was injured. Thus, while the ship operator was liable, under the Jones Act, to the seaman for his injuries, it was unable to recoup those monies from the business insurance company, since the policy only covered work performed on the ship. Source: HK Law

Coast Guard Issues Revised Lease Financing Proposal

The Coast Guard has issued a supplemental notice of proposed rulemaking (SNPRM) that makes technical changes to its proposed requirements for lease financing of vessels in the domestic coastwise trade. While the proposal makes clear that the Coast Guard recognizes its obligation to implement the 1996 statute that eased lease financing requirements for Jones Act vessels in a way consistent with congressional intent, the SNPRM does not appear to completely close loopholes that have become apparent since the statute was first enacted. In enacting the lease financing requirements, Congress made clear that its objective was to broaden the sources of investment capital available to domestic vessel operators, and not to undermine the basic principle of U.S.

Attorneys Obtain Top Florida Compensation for Maersk Chief Mate

International maritime lawyers Jason R. Margulies and Michael A. Winkleman, of Lipcon, Margulies, Alsina & Winkleman, P.A. , have secured the top verdict in Florida for admiralty and maritime law in 2012 for the case: William C. Skye v. Maersk Line Limited Corporation, doing business as Maersk Line Limited. The verdict was published in the 'Daily Business Review' a legal and business periodical that ranks and publishes Florida Top Verdicts. Attorneys Margulies and Winkleman secured the successful verdict on May 16, 2012 under the Jones Act for the plaintiff, William Skye, a commercial ship crew member who sustained permanent physical injuries to the heart as a result of the negligent working environment created by his employer, Maersk Line Limited.

Moored Cleaning Barge is Vessel for Purposes of Jones Act

Over a vigorous dissent, the U.S. Court of Appeals for the Eighth Circuit ruled that a moored cleaning barge is a vessel for purposes of the Jones Act. In the instant case, plaintiff barge cleaner was injured while being ferried from shore to his work site on a moored cleaning barge. The barge was secured in position in the Missouri River by spud poles embedded in the river bottom. The barge was relocated on occasion by being towed. The trial court held, on a summary judgment motion, that the barge was not a vessel in navigation and, thus, plaintiff was not a seaman for purposes of the Jones Act. The appellate court, relying on a recent Supreme Court decision, ruled that “in navigation” was not a requirement for seaman status under the Jones Act.

Supreme Court Grants Certiorari in Admiralty Case

The U.S. Supreme Court issued an Order granting certiorari in the case of Stewart v. Dutra Construction Company. It also granted motions by the San Francisco Maritime Law Journal and the Maritime Trades Department, AFL-CIO to file briefs as amicus curiae. Plaintiff engineer was injured in a collision between a dredge and a scow. Since the primary purpose of the dredge was for construction work rather than transport, the lower court held that the dredge was not a vessel in navigation and plaintiff was not a seaman for purposes of the Jones Act. The question presented in this case is what is the legal standard for determining whether a special purpose watercraft (such as a dredge) is a Jones Act “vessel”? Stewart v. Dutra Construction Company, Inc., 230 F.2d 461 (1st Cir., 2000).

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