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Supplementing my earlier post on the Roberts v. Sea-Land Services, Inc. case, I have obtained copies of the cert-phase briefs from Claimant's counsel.

Claimant's Petition

U.S. Brief in Opposition

Claimant's Reply

The Claimant sought review on the following Questions Presented:

The Longshore and Harbor Workers’ Compensation Act, 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. §§ 908-10. 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). The identity of the years whose limits are “applicable" under this provision has divided the two courts of appeals with the heaviest Longshore Act dockets.

The questions presented are simple and straightforward:

1. Whether the phrase “those newly awarded compensation during such period” in Longshore Act § 6(c), applicable to all classes of disability except permanent total, can be read to mean “those first entitled to compensation during such period,” regardless of when it is awarded.

2. Whether the phrase “employees or survivors currently receiving compensation for permanent total disability or death benefits during such period” in § 6(c) can likewise be read to mean those “entitled to [such] compensation during such period,” without reference to when it is received.

The Supreme Court granted review on Question 1.

Mahalo to Claimant's counsel, Joshua Gillelan, II for the briefs.

Spanish Treasure Hunter? Not so Fast Says 11th Circuit

In a case ripped from the tales of yore or the latest installment of Pirates of the Caribbean, the Eleventh Circuit Court of Appeals found that the U.S. courts had no in rem jurisdiction over a sunken Spanish ship.  The case is Odyssey Marine Exploration v. The Unidentified Shipwrecked Vessel, Its Apparel, Tackle, Appurtenances & Cargo Located Within Ctr. Point Coordinates, in re M, 2011 U.S. App. LEXIS 19379 and the opinion can be found here.

Opening Scene:  A Spanish frigate sunk in 1804 near the Straits of Gibraltar.  It was discovered by a salvor in 2007.

Plot Hook:  [In my best pirate voice] Arrrr, which bloke lays claim to the treasure found in Davy Jones Locker?

Cast:  the Kingdom of Spain, the Republic of Peru, the United States as amicus, descendants of the lost crew, a claimant who claimed "ancestral interest in any of Spain's treasure in Florida," and the salvor.

Script:  This case turned on the Foreign Sovereign Immunites Act which restricts federal court's jurisdiction over the property of a foreign country.  So, for the federal court to have in rem jurisdiction over the shipwreck, it must be provided for in the FSIA. The court reviewed the various exceptions to immunity of a foreign state's property.  Ultimately, it found that the federal courts did not have jurisdiction over the sunken ship.  Therefore, the claim, in rem, failed.

 

 

 

FLASH: SCOTUS Grants Review of Ninth Circuit Longshore Decision

The Supreme Court just agreed to hear a Longshore and Harbor Workers' Compensation Act decision of the Ninth Circuit Court of Appeals.  The case is Roberts v. Sea-Land.

The Ninth Circuit decision can be found here.

I'll digest the decision later.  The Supreme Court only granted the cert petition on one of the Questions Presented, but the Supreme Court website is having technical difficulties with that one.  I'll post upon receipt.

 

New FTCA Case From Sixth Circuit - Josh Himes v. USA

New Federal Tort Claims Act case from the Sixth Circuit Court of Appeals. 

The case involved an issue of whether the USA is entitled to an up-the-ladder immunity that companies enjoy under Kentucky state law.  The Sixth Circuit found that the USA was so entitled and affirmed the summary dismissal of the claimant's lawsuit.  The case is Himes v. USA, 2011 U.S. App. LEXIS 14293 and the opinion can be found here.

New Jones Act Case From Eleventh Circuit - Lindo v. NCL (BAHAMAS), LTD.

New case from the Eleventh Circuit Court of Appeals regarding arbitration clause in a Jones Act employment contract.  The case is Lindo v. NCL (BAHAMAS), LTD., 2011 U.S. App. LEXIS 18001 and it can be found here (with a 24 page dissent, it is 92 pages, so PRINT CAUTION).

Facts:  a Nicaraguan citizen is employed by a Bermuda corporation with its principal place of business in Miami onboard a Bahamian flagged cruise ship.  [Note:  none of those facts are really determinative but you gotta love admiralty!].  The employee's employment was governed by a collective bargaining agreement and an employment contract.  The contract included an arbitration provision.  He brought suit in Florida state court with counts of Jones Act negligence, maintenance and cure and unseaworthiness.  NCL removed the case to federal court and moved to compel arbitration per the employment contract.  After removal, the plaintiff amended his complaint alleging a single count of Jones Act negligence. 

Analysis:  Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, as codified in the Federal Arbitration Act, arbitration provisions requiring foreign arbitration are enforceable. The hiccup, however, is that in a foreign arbitration, the plaintiff may not have his Jones Act statutory claim. The court reviewed all the Jones Act - arbitration cases and spent the bulk of the decision analyzing the plaintiff's argument that "public policy" made the arbitration clause unenforceable.  The court found that argument improper at the where-do-we-litigate stage and proper only at the arbitration enforcement stage (either on a Petition to Vacate or in opposition to a Petition to Confirm).

The dissent found that an arbitration under foreign law would constitute a waiver of his statutory Jones Act rights which violates public policy.

Hat tip to:  Cruise Law News

 

 

New Cruise Ship Case From Ninth Circuit - Gerald Samuels v. Holland American Line-USA Inc., et al.

New Ninth Circuit case involving a maritime tort claim against a cruise ship for injuries suffered during a port call.  The case is Samuels v. Holland American Line-USA Inc., et al. and it can be found here.

Facts:  The plaintiff was injured during a port call to Cabo San Lucas.  His injuries were caused by rough waves at a nearby beach.  He brought a negligence claim against the cruise line for failure to warn him of the dangers.  The trial court granted summary judgment to the cruise line.

Analysis:  On appeal, the plaintiff raised three issues.  First, in granting the summary judgment motion, the trial court erred in excluding some of the plaintiff's evidence.  [EEEK, a Daubert issue.]  The second and third points challenged the factual findings and conclusions of law.

After providing the black letter test for negligence, the court set out the particular duty owed in the maritime context: 

The degree of care considered reasonable in a particular circumstance depends upon the “extent to which the circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passenger.” Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2d Cir. 1983) (affirming the district court’s dismissal of the complaint where the alleged dangerous condition—the stool over which the injured passenger tripped while dancing on the ship’s dance floor—was “in no way peculiar to maritime travel” and where the cruise line had no actual or constructive notice that the stool in question was dangerous). Where the condition constituting the basis of the plaintiff’s claim is not unique to the maritime context, a carrier must have “actual or constructive notice of the risk-creating condition” before it can be held liable. Keefe v. Bahama Cruise Line, Inc., 867 F.2d 1318, 1322 (11th Cir. 1989) (establishing this requirement in a slip-and-fall case aboard a cruise ship); Isbell v. Carnival Corp., 462 F. Supp. 2d 1232, 1237-38 (S.D. Fla.2006) (applying this standard for injuries that a passenger sustained while participating in an optional excursion in a rainforest).

Because the excursion to the beach was not of a sort associated with "maritime travel" and because there was no evidence that the cruise line knew or should have known of the danger, the Ninth Circuit found summary judgment appropriate and affirmed.

Hidden Heroes: the Boatlift of 9/11

The ten-year anniversary of 9/11 prompted a vivid documentary about the boatlift of hundreds of thousands of New Yorkers off Manhattan following the World Trade Center attacks. 

 

Alternative, less choppy video, here.

On the Coast Guard's efforts, and the herculean response of the maritime community in New York, the Commandant of the U.S. Coast Guard said:

WHILE THE EVENTS OF 9/11 WERE TRAGIC, OUR SERVICE CAN TAKE GREAT
PRIDE IN OUR RESPONSE.  IMMEDIATELY FOLLOWING THE FIRST PLANE
CRASHING INTO THE WORLD TRADE CENTERS NORTH TOWER, JUNIOR PERSONNEL
FROM THEN-ACTIVITIES NEW YORK, THOUGH THEY WERE WITNESSING THE
UNFATHOMABLE, INSTINCTIVELY RESPONDED.  THEY WERE ABLE TO MEET THIS
CHALLENGE BY DRAWING UPON THE LEADERSHIP, TRAINING AND CULTURE PASSED
DOWN BY OVER TWO CENTURIES OF COAST GUARDSMEN.  THEY ALSO LEVERAGED
OUR STRONG MARITIME PARTNERSHIPS.  WHEN THEY PUT OUT THE CALL FOR ALL
BOATS TO RESPOND TO LOWER MANHATTAN, HUNDREDS OF MERCHANT MARINERS
PILOTING TUG BOATS, FERRIES AND EVERY OTHER TYPE OF WATERBORNE
CONVEYANCE FORMED A BOATLIFT THAT SAFELY EVACUATED 500,000 PEOPLE IN
JUST NINE HOURS - AN AMAZING, HEROIC AND LARGELY UNKNOWN FEAT.

 

Supreme Court Review Sought in Stolen Valor Act Case - United States v. Alvarez

Occasionally, I'll digress from the usual eclectic fare of this blog to share some interesting cases from around the country.

I posted earlier about the Stolen Valor Act case arising from California.  The case involved a man asserting his receipt of the Medal of Honor.  Per the Ninth Circuit:

Apparently, Alvarez makes a hobby of lying about himself to make people think he is “a psycho from the mental ward with Rambo stories.” The summer before his election to the water district board, a woman informed the FBI about Alvarez’s propensity for making false claims about his military past. Alvarez told her that he won the Medal of Honor for rescuing the American Ambassador during the Iranian hostage crisis, and that he had been shot in the back as he returned to the embassy to save the American flag. Alvarez reportedly told another woman that he was a Vietnam veteran helicopter pilot who had been shot down but then, with the help of his buddies, was able to get the chopper back into the sky.

The Ninth Circuit reversed the conviction, here .  As predicted, the United States just petitioned for Supreme Court review (petition here).  

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.

Stay tuned.

New Defense Base Act - Longshore Case From Second Circuit - Dyncorp Int'l v. Dir., OWCP

New Defense Base Act/ Longshore case from the Second Circuit Court of Appeals.  The issue is on the timeliness of filing a claim.  The case is Dyncorp Int'l v. Dir., OWCP, 2011 U.S. App. LEXIS 18325 and can be found here.

Facts:  a civilian employee was shot by a United Nations peacekeeper from Jordan while serving as a guard in a prison in Kosovo.  The employee was eventually transferred back to the USA and was diagnosed with post-traumatic stress disorder.  Since her claim fell outside the one year statue of limitation in the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., the Administrative Law Judge dismissed the claim.  The Benefits Review Board reversed the ALJ and the employer appealed to the Second Circuit. 

Analysis:  The court of appeals affirmed the BRB's reversal.  The Longshore Act does include a presumption of timely filing that can only be surmounted by an employer showing "substantial evidence."  The employer sought to use the date of the employee's first notice that she was suffering from mental impairment that could impact her income earning ability.  The court found that attending a counseling session was not enough to presume that an employee would evince an awareness of a disability.  Similarly, the court found that taking anti-anxiety drugs or sleeping pills do not evince an awareness of a disabilty.

This case is important for claimants, especially with psychological injuries, to consider when analyzing whether their claims are time barred.

Now, This Is Some Coast Guard Training!

In the days before the EAGLE, the cadets of the U.S. Coast Guard Academy conducted training cruises on cutters in the fleet. 

This is a great video from the Good Ole Days.....