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New Longshore Case from Third Circuit - Consolidation Coal Co. v. Benefits Review Bd.

New Longshore case from the Third Circuit Court of Appeals relating to the status of the injured claimant and the situs of the injury.  There appears to be a circuit split on the meaning of "adjoining area" in 903(a) of the LWHCA, so stay tuned for higher review.

The case is Consolidation Coal Co. v. Benefits Review Bd., 2010 U.S. App. LEXIS 25979 and can be found here.

Facts:  a diesel mechanic was injured in a garage at a facility that moved coal onto barges on the Monongahela River in Pennsylvania.  The garage was 100 yards from the river. The employer challenged the claimant's entitlement to benefits under the Longshore and Harbor Workers' Compensation Act.

Issue: Was the claimant's injury compensable under the LHWCA?

Analysis: As to status, the court stated:

With regard to status, § 902(3) of the Act states that a covered employee must be a "person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker, but such term does not include-" certain enumerated categories of employees under § 902(3). Schwalb, 493 U.S. at 45.

Finding the claimant to have been employed as a mechanic who contributed to the loading process, he had the "status" for benefits under the LHWCA.

As to situs, the court stated:

Section 903(a) states:

Except as otherwise provided in this section, compensation shall be payable under this chapter in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal,building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel). 33 U.S.C. § 903(a). Because Smith was not actually on navigable water or on a pier, wharf, dry dock, terminal, building way, or marine railway at the time of his injury, the determinative question is whether the garage in which Smith‟s injury occurred is an "adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel." Id.

As such, the claimant only fulfilled the situs test if he was injured on an "adjoining area."  The court found that it should liberally construe the term "adjoining area" to find that the claimant did satisfy the "situs" test.  In doing so, it set up a circuit conflict with the Fourth Circuit case of Sidwell v. Express Container Servs., Inc., 71 F.3d 1134, 1138 (4th Cir. 1995)(requiring the are to be continguous with or touch navigable waters).  The claimant also had to show that the adjoining area was used in the loading/unloading of cargo.  The court of appeals held that he had satisfied that burden.

New Admiralty Case from Fifth Circuit - Combo Mar., Inc. v. U.S. United Bulk Terminal, LLC

New case from the Fifth Circuit Court of Appeals addressing the Louisiana Rule and contribution among settling defendants.  The case is Combo Mar., Inc. v. U.S. United Bulk Terminal, LLC, 2010 U.S. App. LEXIS 17644 and can be found  here.

This case arises from an allision caused by drifting barges in Louisiana.  Several defendants were sued and one settled.

Contribution:  At issue was if a settling defendant obtains a full release of claims from the plaintiff, whether that release extinguishes an action for contribution against a non-settling tortfeasor.  The court found that the release did not prevent such an action.  The court stated:

As discussed above, in order to bring a claim for contribution, the settling tortfeasor must have (1) paid more than he owes to the plaintiff, and (2) have discharged the plaintiff’s entire claim. The AmClyde court held that a litigating defendant could not pursue a settling defendant for contribution, because the litigating defendant would, under the proportionate share rule, pay only his share of the judgment. AmClyde, 511 U.S. at 221. Because a right of contribution requires that a defendant pay more than he owes, and the proportionate share rule dictates that a defendant pays only his share of the judgment—no more, no less—a litigating defendant could never have a contribution claim, by definition. By extension, the amount a settling defendant, who obtains only a release for himself, pays represents only his share of the judgment, regardless of the actual dollar amount. Id.; Murphy v. Fla. Keys Elec. Coop. Assoc., 329 F.3d 1311, 1314 (11th Cir. 1314). Therefore, he too has no claim for contribution as long as the settlement represents only his portion of the damages.

Where the settling tortfeasor takes an assignment of the plaintiff’s claim, then the settling tortfeasor essentially steps into the plaintiff’s shoes and pursues the plaintiff’s claim. In that scenario, the plaintiff’s claim is not extinguished. And, as we discussed in Ondimar, allowing assignment of a claim undermines the goals of AmClyde. Ondimar, 555 F.3d at 188–89. Further, there are strong policy reasons for not allowing a settling defendant to take an assignment of a tort claim under these circumstances. Id. at 188 (citing Beech Aircraft Corp. v. Jinkins, 739 S.W.2d 19, 22 (Tex. 1987)). If, however, the settling defendant discharges the plaintiff’s entire claim as evidenced by a total release of all potential joint tortfeasors, then the settling defendant has met the requirements for a contribution claim. Because he is responsible for only his portion of the damages, and he paid the entire amount, he has paid more than he owes. And, because he has obtained a release of all other potential joint tortfeasors, he has extinguished the plaintiff’s claim. Therefore, he may bring a claim for contribution against the non-settling potential tortfeasors.

Colliding Admiralty Presumptions:  The Louisiana Rule extends the Oregon Rule to drifting vessels that allide with a stationary object.  It is a presumption of fault closely related to the tort doctrine of res ipsa loquitor.  In this case, two defendants with different presumptions against them (one had a Louisiana Rule presumption, the other a presumption that passing vessels are presumed liable when their wake causes damages to a moored vessel), do the presumptions cancel each other out vis a vis their intra-defendant liability?  Quoting Judge Posner's opinion in Rodi Yachts v. Nat'l Marine, Inc., 984 F.2d 880 (7th Cir. 1993), the court found the drifting vessel presumption (Louisiana Rule) did not operate between co-defendants.  Whether the passing vessel presumption was supported factually was unclear, so the appeals court remanded the case for a trial.

New Longshore Case from Fifth Circuit Court of Appeals - Jowers v. Lincoln Elec. Co.

New welding fume/government contractor defense case (with LHWCA discussion) from the Fifth Circuit Court of Appeals.  The case is Jowers v. Lincoln Elec. Co., 2010 U.S. App. LEXIS 17862 and can be found here.

Facts:  A worker was exposed to manganese fumes while working on Navy ships.  He developed Manganese-induced Parkisonism and brought suit against the manufacturers of the welding rods alleging state law claims of failure-to-warn.  Originally set in Multi-District Litigation, the court remanded the case to Mississippi for trial.  The jury found for plaintiff, albeit with a comparative negligence reduction of the award.

Law:  The appeal asserted four grounds:  1) erroneous jury instruction on the government contractor defense; 2) improper admission of documentary evidence; 3) erroneous denial of apportionment to the worker's employer; and 4) punitive damages were unsupported.

On the government contractor defense, the Court said:

The government contractor defense preempts state law and provides a total bar to liability in a failure-to-warn case if a defendant establishes three elements: (1) the federal government exercised discretion and approved warnings for the product; (2) the warnings the defendant provided about the product conformed to the federal government specification; and (3) the defendant warned the federal government about dangers known to the defendant but not the government. Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988).

The trial court instructed the jury that in order for the government contractor defense to be operative, the contractor had to establish that the "United States Government had an identifiable Federal interest or policy in the existence of methods of warnings on welding products" and that "there was a significant conflict between this Federal interest or policy and the requirements of Mississippi law regarding the provision of adequate warnings."  The appeals court rejected this instruction as a matter of law for the court to decide and not within the jury's purview.  The appeals court, however, found that the defendants had not established that they were factually entitled to the defense since their warning labels failed to comply with the federal government's specifications.

The defendants argued that the court improperly admitted documents that were over 20 years old, asserting that they were too temporally remote to be relevant.  Finding them probative and relevant under the Federal Rules of Evidence and Mississippi law, the court found no error.

The defendants argued that fault for the plaintiff's injuries should have been apportioned with his employer and that failure to let the jury do so was error.  The plaintiff could not bring state law claims against his employer because of the Longshore and Harbor Workers Compensation Act.  The Act does permit suit against third parties that contribute to injuries.  The appeals court found that the trial court had improperly failed to allow the jury to allocate among all tortfeasors, even ones immune from suit like a Longshore employer.  As such, the compensatory damage award was vacated.

Because the compensatory damages award was vacated, the court vacated the punitive damage award too.

Side note:  apparently the plaintiff's counsel alleged that the defendants "misrepresented the record."  The court cautioned: 

Misrepresentation of the record is a very serious charge and this court does not take such allegations lightly. This was a highly contested case with compelling evidence supporting both sides’ arguments. The Manufacturers were within their right to present evidence in their briefing as persuasively as possible, which in no way constitutes a misrepresentation of the record. We caution Jowers’ counsel against making such unfounded claims in the future.

Just Published in the Vermont Law Review - Of Woodchucks and Prune Yards

The Vermont Law Review has published an article authored by me and my Damon Key colleagues (and fellow law bloggers) Robert H. Thomas and Tred Eyerly, Of Woodchucks and Prune Yards: A View of Judicial Takings From the Trenches, 35 Vt. L. Rev. 437 (2010)(Download here)

Our introduction is a reference to Justice Scalia's quip in mid-opinion about pondering imponderables.

Justice BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

New Federalism Case from Ninth Circuit - USA. v. City of Arcata - Military Recruiter Ban

First note:  One commonality between this blog (ocean related legal issues) and a good chunk of my day job (land use litigation) is federalism.  So, when a federalism case pops up...well, you'll have to indulge me.

Second note:  It is not often that the federal government will sue a municipality for the laws they pass.  But, in this case the federal government did sue two cities in California for passing statutes which barred military recruiters from engaging in ...well, recruiting.  The case is USA v. City of Arcata, et al.

And, now the case:  Voters in Arcata and Eureka passed ballot measures which barred the federal government from recruiting minors.  Not two months later, the federal government brought suit seeking invalidity of the the ordinances citing the Supremacy Clause of the Constitution.  The trial court struck down the ordinances, apparently in a facial challenge.

On appeal, the Ninth Circuit affirmed.  First, they addressed the question of whether the federal government even had standing to challenge the ordinances.  To show standing, a plaintiff must show an "injury in fact," real or threatened before the federal court will have jurisdiction.  This argument is strange, because the cities admitted that they WOULD enforce the ordinances against federal employees.  The Ninth Circuit found standing.

Next, the cities argued that the Declaratory Judgment Act was misused to create federal question jurisdiction.  This argument failed because Congress has statutorily authorized federal court jurisdiction for cases that the federal government is a plaintiff (28 U.S.C. 1345) and when the issue arises under the Constitution (28 U.S.C. 1331). 

Finding jurisdiction, the Ninth Circuit addressed the doctrine of intergovernmental immunity which is a doctrine that dates back to McCullough v. Maryland, 17 U.S. 316 (1819).  That case held that: 

the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. 

The court rejected the cities' other defenses of the Tenth Amendment, the international treaty relating to children in armed conflict, and the promise of self-restraint. The Ninth Circuit rejected the defenses and permanent enjoined the enforcement of the ordinances.

New Maritime Contract Case from Seventh Circuit - Fednav Int'l Ltd. v. Cont'l Ins. Co.

New case from the Seventh Circuit Court of Appeals which outlines the availability of attorney's fees and costs to a prevailing party in a maritime contract dispute.  The opinion is in the case of Fednav Int'l Ltd. v. Cont'l Ins. Co., 2010 U.S. App. LEXIS 22667.  The opinion can be found here.

Plaintiff brings claim in federal court asserting a cargo claim under the Carriage of Goods at Sea Act.  Plaintiff brought the suit in the wrong venue based on the forum selection clause and by the time the court ordered Plaintiff's suit dismissed for want of venue, the statute of limitation had run.

So, the Defendant prevailed and brought a separate suit against the Plaintiff for recovery of its litigation costs.  Because the suit was brought under the federal court's diversity jurisdiction (and not admiralty jurisdiction), the law of the forum state was the default substantive law governing the dispute.  As such, the issue was whether Illinois law allowed for attorney's fees to prevailing parties in contract disputes.  In this case, neither the contract, nor COGSA, nor any other statute provided for such fees and refused to award them.  As such, the "American Rule" applied and the Defendant could not recover.

The court went on to state that even if federal substantive law applied, the American Rule (each side pays their own fees regardless of outcome) still applies.

Warning:  Hawaii law doesn't follow the American Rule for contract disputes.

New Longshore Case from Ninth Circuit - Price v. Stevedoring Services

Sometimes judges just have to make a call.  Yes or no, in or out, liable or not.

In this case, that call was what interest rate past unpaid benefits earned.  The case title is Price v. Stevedoring Services of America, Inc., original opinion can be downloaded here.

The Longshore Act does not provide for the provision of interest explicitly, but the Director of the Office of Workers' Compensation Programs has taken the position that interest on past due payments should be awarded at the rate set forth in 28 U.S.C. 1961(a)(interest shall be calculated at a rate equal to the weekly average 1-year constant maturity Treasury yield). 

The claimant in this case sought interest at a rate that borrowers would have to pay (logically suggesting that if claimants did not receive benefits from their employers and had to borrow, that cost to acquire funds is an appropriate measure of the deprivaton).  The court, however, found the Director's position to be not unreasonable and deferred to the Director's judgment.

 

 

Pearl Harbor

USS Chafee rendering honors to the living Pearl Harbor survivors, standing.

Pearl Harbor Remembrance

December 7, 2010 - Pearl Harbor

December 9th - Live Blog of Hawaii Land Use Case - Leone v. County of Maui