Calendar year 2015 was an unexceptional year for Longshore Act litigation. There were no cases decided at the U.S. Supreme Court, and no new conflicts were created or exacerbated among the federal courts of appeal.
There were, however, some interesting (to me) cases at the federal courts of appeal and the U.S. Department of Labor’s Benefits Review Board (BRB) which dealt with recurring issues, restated general principles, and added to Longshore Act jurisprudence in an orderly manner.
First, here are some cases from the federal courts of appeal, and I note a principal issue in each that I found interesting.
Federal Circuit Courts of Appeal
Michael Alexander v. Express Energy Services Operating, L.P., Fifth Circuit, 5/7/15
This was an appeal in a Jones Act case in which the United States District Court for the Eastern District of Louisiana granted summary judgment to the employer on the issue of seaman status.
The plaintiff worked in the employer’s plug and abandonment department, plugging decommissioned oil wells on fixed platforms off the coast of Louisiana. About 35% of the jobs involved adjacent lift boats holding permanent cranes.
The federal district court granted summary judgment, so the issue of seaman status did not go to a jury. The court found that the plaintiff failed, as a matter of law, to meet the temporal prong of the test for seaman status established by the U.S. Supreme Court in Chandris, Inc. v. Latsis (515 U.S.. 347, 1995).
Counting only the time that he actually worked on the barges, the plaintiff failed to meet the requirement that he have a substantial employment relationship with a vessel or fleet of vessels under common ownership or control that was significant in terms of duration. He spent less than 30% of his work time on vessels.
Although 35% of the jobs he was involved with included lift boats, this did not equate to the plaintiff spending 35% of his time on those lift boats. The plaintiff asked the court to count all of his jobs that used an adjacent vessel toward the Chandris temporal requirement without regard to how much time he himself spent on the vessel.
The court did not agree. “It is not sufficient under Chandris that Alexander was merely near a vessel on more than 30% of his jobs or that he performed some incidental work on a vessel on those jobs; to be a seaman, he must show that he actually worked on a vessel at least 30% of the time.”
The appeals court affirmed the district court’s order granting summary judgment and dismissing Alexander’s claims.
There was nothing unique about this case, nor was it a particularly close case, although the plaintiff’s argument was somewhat creative. I just find most cases dealing with seaman status under the Jones Act to be interesting. And these Jones Act cases are relevant to Longshore Act coverage issues because of the “uncertainty zone” of coverage between the two Acts.
While we’re on the subject of seaman status and appeals from the Eastern District of Louisiana:
Joseph R. Wilcox; Lisa Wilcox v. Wild Well Control, Incorporated; Superior Energy Services, Incorporated, Fifth Circuit, July 24, 2015
This was another seaman status case. The plaintiff was employed by Max Welders as a welder on offshore oil platforms. At the time of his injury he was working on a decommissioning job during which he would be living on a barge owned by Wild Well. The parties agreed that for this two month contract he was the borrowed employee of Wild Well Control, Inc.
Although he could not meet the Chandris test for crewmember status during his overall employment with Max Welders, the claimant argued that his status as a seaman should be measured by the time he spent as a borrowed employee of Wild Well Control on the theory apparently that his status as a borrowed employee was equivalent to a new job or permanent reassignment to new duties. The Fifth Circuit affirmed the district court’s dismissal of the Jones Act claims, indicating that it looked at the entirety of the plaintiff’s employment with both the nominal and borrowing employers rather than his duties only for the two month contract where he was a borrowed employee.
Another nice try, but another summary judgment for the employer.
Battelle Memorial Institute et al. v. Dicecca et al., First Circuit, 7/6/15
This was a Defense Base Act case in which the Zone of Special Danger was applied to cover a fatal injury suffered while the employee was traveling by taxi to a grocery store overseas in Tbilisi, Georgia. The accident arose out of the conditions of employment, i.e. the conditions and obligations of employment in a dangerous locale and foreseeable risks associated with that employment.
Patrick Novak, et al. v. United States of America, Ninth Circuit, 7/30/15
In this case, the Ninth Circuit affirmed the district court’s dismissal of an action challenging the constitutionality of the Jones Act’s cabotage provisions (which prohibit foreign competition in the domestic shipping market).
The plaintiffs, several individuals as well as a corporation, reside in Hawaii and claimed pecuniary damages. They alleged that the Jones Act impaired interstate trade between Hawaii and the mainland to such an extent that it violated the U.S. Constitution through an unlawful restraint of trade and interstate commerce.
The district court ruled that the plaintiffs failed to establish jurisdictional “standing” to challenge the Jones Act.
The Ninth Circuit, in affirming the district court’s dismissal, noted that even if the plaintiffs were able to establish standing they would still not prevail. Enactment of the Jones Act was within the authority of Congress to regulate interstate commerce under the Commerce Clause (Article I, Section 8).
Another victory for supporters of the Jones Act.
Bahri Chirag and Dangwal Sandeed v. MT Marida Marguerite Schiffahrts; Marida Tankers, Inc.; and Heidmar Inc.; XYZ Ship Owner and XYZ Ship Employer, Second Circuit, 3/11/15
In this maritime negligence action the Second Circuit reviewed a district court’s dismissal of the case on the basis of forum non conveniens. The standard of review is abuse of discretion.
In this case, the district court dismissed the action without first establishing personal jurisdiction over the defendants and without addressing maritime choice of law principles.
The plaintiffs were citizens of India suing a German defendant, a Marshall Islands defendant, and a U.S. defendant that the Court noted would most likely turn out not to be a proper party upon additional discovery.
The district court’s ruling was based on the following factors: 1) since the plaintiffs were residents of India and not U.S. citizens, there was less deference to their choice of forum, 2) an alternative forum existed in Germany, where one defendant was a German entity and another had stipulated to jurisdiction, and 3) both private and public interests weigh in favor of litigating the case in an alternate forum.
By “private interests” the court meant that the documentary evidence was in Germany, the ship’s owner and operator were based in Germany, the employment contracts were entered into in India, the crew consisted of 19 Indians, 2 Bangladeshis, and 1 Ukrainian, the plaintiff’s injuries were caused by Somali pirates, witnesses were located all over the globe (not in the U.S.), etc.
By “public interests” the court noted that the case would place a heavy administrative burden on the U.S. court, and the heart of the dispute was essentially foreign. The U.S. had no real interest in the subject matter of the dispute.
This is not an unusual scenario. Plaintiffs prefer U.S. courts.
Huntington Ingalls Industries v. Eason, Fourth Circuit.
This is a case involving a scheduled award for a knee injury and a subsequent claim for partial disability benefits during a flare up of the knee symptoms. I won’t say anything here about the case because I’m going to be discussing this issue when I resume my list of landmark Longshore cases at the U.S. Supreme Court and the decision in Potomac Electric Power Co. (PEPCO) v. Director, Office of Workers’ Compensation Programs, 449 U.S. 268 (1980).
Ceres Marine Terminals, Inc. v. Director, Office of Workers’ Compensation Programs, U.S. Department of Labor, et al. (Wallace), Fourth Circuit, 8/13/15
In this unpublished case we have an illustration of the Aggravation Rule. There is no requirement that the aggravating second injury fundamentally or permanently alter the claimant’s underlying condition. A worsening of symptoms due to working conditions is sufficient.
Mark Barto v. Shore Construction,LLC; McDermott, Incorporated, Fifth Circuit, 9/4/15
In this case, the Fifth Circuit affirmed a district court’s damages award, and in the process offered a discussion with regard to the general damages and future lost wages components of a Jones Act damages award, and a determination of whether back surgery was merely palliative or was curative in the context of entitlement to “cure”.
Following successful back surgery but with permanent restrictions, in reviewing the district court’s damage award for pain and suffering, the Fifth Circuit made the point that the damages measure does not focus on pain only, but on permanent restrictions on the plaintiff’s normal life routines. The plaintiff had testified in detail about all of the things he liked to do that he would no longer be able to do.
With regard to future lost wages, which are generally based on a seaman’s work life expectancy i.e., the average number of years that a person of a certain age will both live and work, the district court based its finding on a consideration of the testimony of competing expert economists and the court has considerable discretion here.
On the issue of responsibility for payment for back surgery, the court noted that the point of maximum “cure” depended on whether a particular medical procedure is merely palliative in nature, and serves only to relieve pain and suffering, or whether it is curative.
The purpose of the surgery in this case was to remove pressure from the nerve sac, which was causing at least some of the plaintiff’s pain. The removal of pressure from the nerve sac would thereby better the plaintiff’s physical condition by curing the root cause of his pain rather than merely correcting the symptom (pain). The surgery was therefore curative rather than merely palliative in nature. The surgery also corrected a physical abnormality that existed in the plaintiff’s body (pressure on the nerve sac) and thereby bettered his physical condition by restoring it to a normal, healthy condition.
The court noted that in a maintenance and cure dispute, doubts are resolved in favor of the seaman. “Where there are ambiguities or doubts as to a seaman’s right to receive maintenance and cure they are to be resolved in favor of the seaman”, quoting from Vaughan v. Atkinson, 369 U.S. 527 (1962).
The Fifth Circuit also discussed its “maximum recovery rule”. It will decline to reduce damages where the amount awarded is not disproportionate to at least one factually similar case from the relevant jurisdiction. This rule becomes operable if the award exceeds 133% of the highest previous recovery for a factually similar case.
It looks like most of the interesting Longshore Act cases at the federal appeals courts for 2015 were Jones Act or General Maritime Law cases.
For next time, calendar year 2015 cases at the Benefits Review Board.
John A. (Jack) Martone served for 27 years in the U.S. Department of Labor, Office of Workers Compensation Programs, as the Chief, Branch of Insurance, Financial Management, and Assessments and Acting Director, Division of Longshore and Harbor Workers’ Compensation. Jack joined The American Equity Underwriters, Inc. (AEU) in 2006, where he serves as Senior Vice President, AEU Advisory Services and is the moderator of the AEU Longshore Blog.