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SCOTUS WATCH: What is a "vessel"? Or as Mr. Chekov Says "Wessel"

More on the what is a "vessel" case pending at the Supreme Court, see my earlier post here.

AP has an article discussing the case, here, and they have a picture of the alleged maritime vehicle.

This case reminds me of a classic scene.  (Begins at 1:16).

 

New Jones Act Case From Fourth Circuit - Aggarao v. MOL Ship Management Company

New Jones Act case from the Fourth Circuit Court of Appeals.  The case is Aggarao v. MOL Ship Management Co., 2012. U.S. App. LEXIS 5525 and the original opinion can be found here.

Facts:  A seaman was injured onboard the M/V Asian Spirit in Chesapeake Bay, near Baltimore, Maryland.  The "devastating" injury resulted in paraplegia.  His employ was pursuant to an employment agreement which contained an arbitration provision, a choice of law provision and a claims provision.  After his initial treatment, defendants offered to repatriate the seaman to the Philippines, pursuant to his employment agreement.  Out of concern for his followup medical care, the seaman refused. He eventually brought suit for maintenance and cure, unseaworthiness, wages, Jones Act and general maritime law.  The Defendants sought to compel arbitration in the Philippines, pursuant to the employment agreement.  The trial court concluded that the arbitration provision governed the dispute and found venue in the United States wanting.

Issue on appeal:  does the arbitration provision, as enforced by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, preclude jurisdiction in the federal courts of the United States?

Analysis:  the Fourth Circuit enforced the arbitration provision and affirmed the trial court's decision, but it also vacated the dismissal by the trial court, holding that a "stay" of the litigation pending resolution of the arbitration was appropriate.  Further, the Fourth Circuit remanded the case to hear Plaintiff's maintenance and cure which, the Court found, were required to be heard (on Plaintiff's motion for preliminary injunction) as to maintain the status quo vis a vis his medical condition.

Kilauea

Pakini Nui

South Point Wind Farm Awaiting Scrap

New Fisheries Case From Ninth Circuit - Turtle Island Restoration Network v. Hawaii Longline Association

New Ninth Circuit case dealing with fisheries near the Hawaiian Islands.  The case is Turtle Island Restoration Network, et al. v. Department of Commerce, et al and it can be found here.

In the latest chapter of the litigation over the Hawaii longline fishery and its interaction with sea turtles, the Hawaii Longline Association, in its capacity as an intervenor, appealed the approval of a consent decree affecting the regulation and management of the Hawaii swordfish longline fishery.  The Association challenged the consent decree arguing that the consent decree violate the rulemaking provisions of the Magnuson-Stevens Act and the Administrative Procedures Act.  The Ninth Circuit upheld the consent decree. 

The consent decree, also known in this case as a stipulated injunction, reduced the allowable incidental take of turtles and called for a new Biological Opinion to be prepared by the National Marine Fisheries Service.

On appeal, the Ninth Circuit found that the use of the consent decree did not violate the Magnuson Stevens Act which doesn't reference consent decrees and then found that if federal agencies cannot settle cases, through the use of a consent decree, then the settlement of such cases would be more difficult.

More over at Planet Kauai.

Renewable Energy in Hawaii - Field Trip

On the road this weekend to Hawaii.  Island that is.  Stopping to check out the wind farm at South Point

Stay tuned.

SCOTUS Decides Longshore Case - When is Claimant "Newly Awarded Compensation"?

Longshore Wonks - Take Heed.  The Roberts v. Sea-Land case is hot off the press and the Supreme Court says, a claimant is "newly awarded compensation" when the claimant first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.

The decision is here.  Near unanimous decision authored by Justice Sotomayor.  Justice

Ginsburg concurred and dissented.

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 statutes in question used the term "newly awarded compensation" but didn't define the particulars of that event.  So, the Court picked an event.  Justice Ginsburg would have picked a different timeframe.

This has more to do with a calculation of damages in Longshore cases rather than a rewrite of federal worker compensation laws, but if we see any commentary that suggest it could go elsewhere, we'll post!

Background Materials

The transcript of oral arguments is here. (Of note:  Justice Scalia was unimpressed with Congress' statute-writing ability, asking the counsel if this was a "stupid statute.")

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

New Limitation Case From Fifth Circuit - Eckstein Marine Service v. Jackson

Those pesky statutes of limitation.  Usually such statutes operate to prevent plaintiff's untimely claims.  But, in this case, the statute of limitation acted to preclude a defendant's limitation of liability defense.

The case is new from the Fifth Circuit Court of Appeals, it is Eckstein Marine Service v. Jackson, 2012 U.S. App. LEXIS 3480 and can be found here.

In the maritime context, federal law allows shipowners to limit their liability for certain actions by bringing a limitation action in federal court.  46 U.S.C. 30501.  With certain exceptions, a vessel owner can have their liability capped at the value of the vessel.  But, the limitation statute has a six month statute of limitation. [Author note:  not intended to be funny, but it is].

In this case, the shipowner filed the limitation action eight and half months after it was served with a state court complaint.  The trial court dismissed and the appeals court affirmed.

On appeal, the owner argued that the state court complaint did not give the owner notice that its liability could exceed the value of the vessel.  The owner cited a Second Circuit case, Complaint of Morania Barge No. 190, which held that an owner only needed to file the limitation action if there was a "reasonable possibilty" that its liability would exceed the value of the vessel.

The appeals court reviewed the allegations in the state court complaint noting that the injuries alleged were "permanent and catastrophic" with damages sought for past loss of earning, future loss of earning capacity, disability, disfigurement, medical expenses and pain and mental anguish.  No dollar figure was sought, so the owner argued it wasn't on notice until much later (when the statute of limitation would not bar its limitation action).

The appeals court noted that a "reasonable possibility" is not a particularly "stringent" standard and affirmed the dismissal of the limitation action.

New Jones Act Case From Fouth Circuit - Holloway v. Pagan River Dockside Seafood

New Jones Act case from the Fourth Circuit Court of Appeals.  While the Jones Act claim is what prompted this post, it is actually more of a civil procedure case that goes to the heart of federal court jurisdiction, so Civ Pro wonks- take heed.

The case is Holloway v. Pagan River Dockside Seafood, 2012 U.S. App. LEXIS 3897 and the original opinion can be found here.

Facts:  Plaintiff had an "oral" contract to "lease" a boat from Defendant who then paid him for his catch of oysters or crabs and deducted a "fee" for the lease payment.  While unloading his catch, he was injured by a conveyor belt.  He brought suit as a Jones Act seaman against his "employer."

The trial court granted a motion to dismiss for want of subject matter jurisdiciton under Federal Rule of Civil Procedure 12(b)(1).  The notional "employer" argued that the Plaintiff had not satisfied the statutory requirement of proof that he was a Jones Act seaman in their employ.  The trial judge granted the motion and Plaintiff appealed.

This case turns on the difference between dismissal for lack of subject matter jurisdiction, under 12(b)(1), and dismissal for failure to state a claim, under 12(b)(6). 

The Fourth Circuit thought everybody got it wrong: 

The parties, and indeed the district court, have quite blurred the fundamental difference between a Rule 12(b)(1) motion for lack of subject matter jurisdiction and a Rule 12(b)(6) motion for failure to state a claim, failing to recognize the distinction between the Rules.

 

 

 

 

 

 

 

Ouch.  Bench slap.

The opinion goes on to explain that jurisdiction is different than having a defective complaint.  Plaintiff's failure to allege facts that prove his statutory cause of action, i.e. Jones Act seaman status, should be resolve by a motion challenging the sufficiency of the complaint; i.e. 12(b)(6) - failure ot state a claim, 12(c) - judgment on pleadings, or 56 - summary judgment; and not on jurisdictional grounds.

Jones Act suits are claims that the federal courts have the power to hear.  Ergo, the courts have jurisdiction to hear them.  If plaintiffs cannot prove they are entitled to relief under the Jones Act, then defendants can file an appropriate motion, or if there are contested facts at issue, the court must try them.