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New Jones Act Case from Fifth Circuit - Manderson v. Chet Morrison

New Jones Act case from the Fifth Circuit Court of Appeals.  It is Manderson v. Chet Morrison Contractors, Inc., 2012 U.S. App. LEXIS 18 and can be found here.

The facts don't seem to be controversial:  an engineer on a vessel was hospitalized and received treatment for ulcerative colitis, diabetes and a liver condition.  He did not return to work.  He brought a Jones Act suit, claiming relief under general maritime law, the Jones Act, maintenance and cure and for attorney's fees.

At trial, the claimant was denied relief for his Jones Act and general maritime law claims, but was awarded relief for maintenance and cure and attorney's fees related to that claim.  In awarding attorney's fees, the trial court found that the employer was arbitrary and capricious in failing to pay maintenance and cure payments.

On appeal, the claimant challenged the denial of Jones Act and his maritime law claims, but the appeals court agreed with the trial court's handling of those claims.

As to maintenance and cure, the employer challenged the cure award under the "collateral source rule."  For those non-tort types out there, the collateral source rule bars a tortfeasor from reducing the damages awardable to the plaintiff by referencing sources of compensation (like health insurance) that are independent of the tortfeasor. Therein is the rub:  maintenance and cure is a very, VERY strict requirement for employers of seamen.

So, the court did not allow a reduction for medical payments paid by the claimant's health insurer.  As anyone who has read their health insurer's explanation of benefits (THIS IS NOT A BILL) form, what doctors charge is not what insurance companies pay.  The court in this instance only awarded maintenance and cure damages for what was actually paid to the doctors.  SIDE NOTE:  for those that think it unfair to pay the claimant for injuries paid for by a third party, under Hawaii law, the health insurer has a statutory, contractual and equitable lien against any recoveries that relate to injuries they provided benefits to treat. 

The court rejected the trial court's award of attorney's fees.  In responding to the demand for maintenance and cure, the employer referred the demand to its carrier which investigated the claim.  In two months, the claim was brought.  Based on these facts, the appeals court declined to find the employer's position arbitrary and capricious. 

New Defense Base Act Case Fifth Circuit - Fisher v. Halliburton

New Defense Base Act case from the Fifth Circuit Court of Appeals.  The case is Fisher v. Halliburton, 2012 U.S. App. LEXIS 641 and can be found here.

The facts are straightforward:  several employees of Kellogg Brown & Root were killed in Iraq while driving logistics trucks in Iraq.  Their widows and family members brought state tort claims against their employers.  The employers sought to dismiss the suits citing the remedy and preemption provisions fo the Defense Base Act, 42 U.S.C. 1651.

The Circuit Court walked through the analysis of the applicability of the Defense Base Act, including whether the injury suffered was because of the claimant's employment, whether the Defense Base Act bars intentional torts; and whether claimants can bring fraud claims against their employer, despite the preemptive effect of the Defense Base Act.

Rejecting the widows' claims and arguments, the Fifth Circuit ruled in favor of the Defense Base Act applicability to the injuries suffered by their civilian husbands in Iraq. 

SCOTUS: Stolen Valor Act - brief filed - U.S. v. Alvarez

Update:  the Supreme Court is considering the Ninth Circuit's decision in United States v. Alvarez, relating to the Stolen Valor Act.  My earlier posts on this case are here and here.  Mr. Alvarez just filed his Brief which can be downloaded (Respondent's Brief)

The Question Presented is: 

Section 704(B) of Title 18, United States Code, makes it a crime when anyone “falsely represents himself or herself, *** verbally or in writing, to have been awarded any decoaration or medal authorized by Congress for the Armed Forces of the United States.”  The Question Presented is Whether 18 U.S.C. 704(B) is facially invalid under the Free Speech Clause of the First Amendment.

The other briefs in the case (courtesy of the ABA):

Brief of the United States: here.

Brief for the American Legion in Support of Petitioner:

Brief for the Congressional Medal of Honor Foundation in Support of Petitioner:

Brief for the Legion of Valor of the United States and the Criminal Justice Legal Foundation in Support of Petitioner:

Brief for Professors Eugene Volokh and James Weinstein in Support of Petitioner

Brief for Texas, Alabama, Alaska, Colorado, Florida, Hawaii, Idaho, Indiana, Kansas, Louisiana, Maine, and Michigan in Support of Petitioner

Brief for Veterans of Foreign Wars of the United States; Amvets; Disabled American Veterans; Jewish War Veterans of the United States; Military Order of the World Wars; Vietnam Veterans of America; Military Officers Association of America; Non-Commissioned Officers Association; National Association for Uniformed Services; Association of the United States Army; Association of the United States Navy; Air Force Association; Marine Corps League; Air Force Women Officers Associated; Reserve Officers Association; Army Reserve Association; Fleet Reserve Association; National Guard Association of the United States; Military Order of the Purple Heart; Distinguished Flying Cross Society; Special Forces Association; U.S. Army Ranger Association, Inc.; Flag and General Officers’ Network; West Point Association of Graduates; and Association of Graduates, U.S. Air Force Academy in Support of Petitioner

Intellectual Property Brief of the University of New Hampshire School of Law in Support of Neither Party

 

 

SCOTUS Rules on OCSLA Case - Pacific Operators Offshore, LLP v. Valladolid

News Flash - the Supreme Court issued a decision in Pacific Operations Offshore, LLP v. Valladolid, an Outer Continental Shelf Lands Act/Longshore Act case arising from the Ninth Circuit.  The Supreme Court affirmed the Ninth Circuit's decision, rejecting the approaches adopted by the Third Circuit Court of Appeals and the Fifth Circuit Court of Appeals. 

The decision is here. 

The Question Presented was:

The court granted review for this question presented:

The Outer Continental Shelf Lands Act, 43 U.S.C., §§ 1331-1356 (OCSLA), governs those who work on oil drilling platforms and other fixed structures beyond state maritime boundaries. Workers are eligible for compensation for "any injury occurring as the result of operations conducted on the outer Continental Shelf." 43 U.S.C. § 1333(b) (2006). When an outer continental shelf worker is injured on land, is he (or his heir):

(1) always eligible for compensation, because his employer's operations on the shelf are the but for cause of his injury (as the Third Circuit holds); or

(2) never eligible for compensation, because the Act applies only to injuries occurring on the shelf (as the Fifth Circuit holds); 

(3) sometimes eligible for compensation, because eligibility for benefits depends on the nature and extent of the factual relationship between the injury and the operations on the shelf (as the Ninth Circuit holds)?

The opinion, authored by Justice Thomas, holds that the Ninth Circuit's "substantial nexus" test was the most supportable reading of the statutes at play here.  Justice Scalia concurred, joined by Justice Alito, that favored the adoption of a "proximate cause" test instead of the "substantial nexus" test which he thought unworkable.

Previous posts on case: Ninth Circuit Decision; Cert Petition.

Transcript of oral argument: Transcript - 10-507,

Longshore Act at SCOTUS - Transcript Available - Roberts v. Sea-land Services

Last week, the Supreme Court heard oral arguments in the Roberts v. Sea-Land Services case.  The transcript of oral arguments is here. 

The issue in this case is when an injured longshore worker's "Average Weekly Wage" is to be determined:  at the time of the entitlement to an award of compensation or the actual award of compensation.

The oral arguments required the justices to wade deep into a dense statutory worker compensation regime and address what appears to be an omission in the statute.  Justice Scalia was unimpressed with Congress' statute-writing ability, asking the counsel if this was a "stupid statute."

-------------------------------------------

 The Question Presented is:

The Longshore and Harbor Workers’ Compensation Act, as amended, 33 U.S.C. §§ 901-50 (“Longshore Act”), provides generally for compensation for total disability in periodic payments at a rate of two-thirds of the “average weekly wage of the injured employee at the time of the injury,” and for most partial disabilities the same fraction of the difference between that weekly wage and the worker’s residual “wage-earning capacity.” Id. §§ 8, 10, 33 U.S.C. §§ 908, 910. But it has always imposed upper and lower limits on the rate payable as so determined. Section 6(b) of the Act, 33 U.S.C. § 906(b), provides that the compensation rate cannot be more than twice “the applicable national average weekly wage,” as determined for each fiscal year; nor can compensation for total disability be less than the lesser of half the “applicable national average weekly wage” so determined and the worker’s full pre-injury earnings. The question which fiscal year’s limits are the “applicable” ones is addressed by § 6(c):

Determinations under subsection (b)(3) of this section with respect to a [fiscal year]
shall apply to employees or survivors currently receiving compensation for permanent
total disability or death benefits during such period, as well as those newly awarded compensation during such period.

33 U.S.C. § 906(c) (emphasis added). The determinant of the years whose limits are “applicable” under this provision has divided the three courts of appeals that have addressed it. The Court granted certiorari to resolve the question:

Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c) makes the time an award is first entered determinative, or can and should be read to mean “those first entitled to compensation during such period,” regardless of when an award is first entered.

The Merits Reply Brief is here (courtesy of Cockle Law Blog).  I don't have the other merits briefs yet, but will post if I get them.

Earlier posts including the cert petition phase briefs are here and here.

On Capsizing, Captains and Coast Guards: Costa Concordia

Please excuse my absence from this blog.  I've been on active duty with the Coast Guard Reserve in Washington and between snow, sleet, and a full email inbox, I've been busy.

Someone forwarded me this video and, although I don't speak Italian, I do understand the international language of military "get-your-butt-in-gear" - speak.

   

 

This incident reminds me of United States v. Holmes which is a very, very old case.  It stands for the proposition that all mariners owe a special duty to passengers.  That special duty, if breached, can give rise to manslaughter charges. 

Michigan Seeks Supreme Court Review of Army Decision on Asian Carp

The Asian Carp.  It is an ugly fella.  Should the federal government be required to install block nets to stop these beasties from invading the Great lakes?  We'll see if the Supreme Court thinks that is a question it should be asking.

Photo courtesy of the National Park Service.

The Asian Carp is an invasive fish species that is spreading from the Mississippi River basin towards the Great Lakes.  I've posted earlier on various attempts to halt the spread of the fish from the rivers to the lakes.  (here and here).  The states bordering the Great Lakes were not satisfied with the federal government (particularly the Army Corps of Engineers) response to the threat of a carp invasion.  So, several states brought suit in federal court seeking an injunction to accelerate the study of the problem and adopt interim measures to stop the fish pending a permanent remedy.

The States attempt to obtain an injunction was rejected by the district court and the Seventh Circuit Court of Appeals.  The Court of Appeals decision is here.

The States recently filed a Petition for a Writ of Certiorari.  The petition is here.  The Questions Presented by the petition are:

This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a “good” or “perhaps even a substantial” likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court’s denial of even the plaintiffs’ most modest requests for injunctive relief. The Seventh Circuit’s opinion raises two questions for this Court’s review:

1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.

2. Whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.

Interestingly, in justifying why the Supreme Court should review the denial of the injunction, the States assert that this is a common law case of nuisance between several states (Michigan, Minnesota, Ohio, Wisconsin and Pennsylvania) on one hand, and the United States Army Corps of Engineers and "an instrumentality of Illinois" on the other hand.

The second asserted justification is the immense importance of the natural resources at stake: namely the Great Lakes ecosystem.

The third asserted justification is that cases involving migratory wildlife are "uniquely justiciable" in the original jurisdiction context.

Tough arguments to justify Supreme Court review.  Stay tuned.

New Maritime Insurance Case from Seventh Circuit - Egan Marine Corp. v. Great American Insur. Co.

New maritime insurance case from the Seventh Circuit Court of Appeals.  The case involves a pollution insurance policy and coverage for an oil spill following a vessel explosion in Chicago.  The case is Egan Marine Corp. v. Great American Insur. Co., 2011 U.S. App. LEXIS 23369 and the original opinion can be found here.

The facts underlying the original incident are simple.  A barge laden with oil exploded resulting in a salvage and cleanup effort.  An insurance policy provided the insured with coverage for pollution cleanup activities. 

The first part of the opinion addressed the insured's appeal.  The insured was hired by the insurance company to coordinate the cleanup activities at an agreed upon 80% of normal rates, presumably to only pay for costs not profit.  The parties disagreed as to whether the remaining 20% constituted an agreement as to the amount of cost (vs. profit) or whether the carrier had the ability to review and approve only the actual cost.  The opinion continues to analyze the policy language in light of claims for costs after federal liability ended, then briefly discussing a bad faith allegation against the insurer.

On cross-appeal, the insurer argued that its policy only covered the tug vessel and not the barge carrying the oil, ergo no coverage.  The appeals court found that since the barge was not capable of propulsion without the tug, treating them as distinct vessels would lead to a "curious result."  The remaining issues on appeal dealt with specific reimbursements for costs and the oral contract regarding the 20% reduction.

Interesting case involving oil spills and oil pollution policies.  Definitely one to keep handy for mishaps.

In Memoriam: Professor Jon Van Dyke (1943-2011)

We were saddened to learn that Professor Jon Van Dyke passed away suddenly yesterday. His official accomplishments can be found at the University of Hawaii Law School's website and the Star-Advertiser's article. 

For UH Law alums, "JVD" was a constant presence.  His Constitutional Law I class was required curriculum and focused on the 14th Amendment.  Alas, he was on sabbatical when I took Con Law I, but I took Con Law II and International Ocean Law from him.  He deftly probed our unspoken biases about religion, the military and democracy in a never-critical, but always probing manner.

In those days before Power Point, he always had a stack of "overhead" slides, using them to show us pictures or paintings of Supreme Court Justices.

So, in a nod to him, here is JVD's photo from the University of Hawaii Law School website:

Rest in Peace Professor, the law school won't be the same without you.

When is a floating structure not a vessel? The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman

You know you have a backlog of cases to post when you see a cert petition appealing the un-blogged case....

So, to rectify that delay, let's talk about what is a "vessel" - or if it walks like a duck, talks like a duck, but can't swim like a duck ....

Before we start - this video captures a vexing issue relating to federal court jurisdiction - just because it is on water, is it a vessel subject to maritime jurisdiction?

 

 

The Eleventh Circuit recently held that a floating house, sans engines, inboard utilities, or history of transport, is a vessel for the purposes of federal court jurisdiction.  The case is The City of Riviera Beach vs That Certain Unnamed Gray, Two-Story Vessel Approximately Fifty-Seven Feet in Length, Fane Lozman, 2011 U.S. App. LEXIS 17232 and the opinion can be found here.  The cert petition can be found here.

The facts are straightforward - a City permitted a 'floating structure" to tie up to a municipal pier.  The structure's owner went unpaid on dockage fees and the City attempted to arrest the "vessel", foreclose a maritime lien and recoup the unpaid debt. 

The backstory - one day before Governor Jeb bush signed an anti-eminent domain bill, the City entered into an agreement with a developer to redevelop the marina where the vessel was moored.  The owner brought a suit under Florida's Sunshine law.  The redevelopment plan was scuttled [sorry, couldn't help it].  Later, the City filed an eviction suit against the owner.  A jury trial ensued and the jury found that the City was retaliating against the owner for her speech.  The City then amended the requirements for dockage at the City pier, adding insurance, registration, capability for navigation, etc.  The owner defaulted on the new obligations and the City brought a suit in rem against the vessel.

So, does a federal court have jurisdiction over a floating structure?

The Supreme Court decision in Stewart v. Dutra, 543 U.S. 481 (2005) provides the test or really U.S. Code does.  1 U.S.C. 3 states that a vessel, for the purposes of admiralty jurisdiction, "includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." 

The court conducted an extensive factual inquiry into the state of the "vessel" then ultimately held that the structure was a vessel for the purposes of admiralty jurisdiction.

Stay tuned...