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New Longshore Case from 5th Circuit - New Orleans Depot Svcs v. OWCP

New Longshore case from the Fifth Circuit.  The case is New Orleans Depot Services v. Office of Worker Compensation Programs and it can be downloaded here.

Facts - a worker suffered a hearing injury during the course of employment with two different employers.

Issue - "situs" of the injury and status of the employee.

Analysis - Under the Longshore and Harbor Workers Compensation Act, work-related injuries are governed by the Act if the injury occurred in the maritime situs and their status is that of a maritime employee.

Under Fifth Circuit law, when deciding whether aa location satisfies the "situs" requirement of the Longshore Act, courts consider "both the geographic proximity to the water's edge and the functional relationship of the location to maritime activity."  The employer conceded the proximity requirement but challenged situs on functional relationship grounds.  In this case, the situs was a shipping container facility and the claimant did maintenance on shipping containers.  It was adjoining to, but not on, the waterfront.  Noting that under Fifth Circuit law, situs is not a formulaic test, the court affirmed the ALJ's factual determination that the yard was a maritime situs.

At hearing, the ALJ found that the claimant was a maritime employee because he worked on marine shipping containers.

Dissent -  In dissent, Circuit Judge Clement took issue with this holding and found that it expanded the reach of the Longshore Act.  The claimant was not involved in the loading or unloading of any vessel nor was the facility where the injury took place involved the loading or unloading of any vessel.  The majority felt bound by the standard of review which gives deference to questions of fact.  In so doing, Judge Clement though that the incrementally expanding reach of LHWCA, would end up "gradually swallowing every employer in the vicinity of a port."

ABA Annual Meeting - Chicago - Free Screening of Crime after Crime

On Thursday, August 2, 2012, at 3:30 p.m., as part of the ABA Annual Meeting, the ABA and the State & Local Government Law Section is sponsoring a free screening of " Crime After Crime," the award-winning documentary from director Yoav Potash chronicling two San Francisco Bay Area land use lawyers who volunteer to provide their services to try and help free a woman who has been imprisoned for 20 years.

Robert H. Thomas has a review of the movie and more details at www.inversecondemnation.com.

Hope to see you there. 

Ninth Circuit's Temporal Musings - New Longshore Opinion

The Ninth Circuit Court of Appeals just issued a decision in a Longshore case.  The case is Pacific Ship Repair and Fabrication, Inc. v. Office of Worker Compensation Programs.  It can be found here. 

In a nutshell, the question was how to treat a worker's disability that was originally classified as permanent partial but proves to be temporarily total during recovery following surgery.

Following the Benefits Review Board, the Ninth Circuit held that such an employee's disability could be recharacterized.

SCOTUS - New Cert Petition Regarding Damages in Maritime Case

Hat tip to SCOTUSBLOG for their Petition of the Day.

This is an interesting case that arises in the maritime context, but could have broad impact across all civil litigation.  The case is Icicle Seafoods, Inc. v. Clausen. 

The Questions Presented are:

1. Whether, in determining the ratio between compensatory and punitive damages for purposes of applying federal limits on punitive damages, court awarded attorney’s fees are properly included as compensatory damages.

2. Whether, and to what extent, punitive damages in maritime cases may exceed the 1:1 ratio between compensatory and punitive damages applied by the Court’s Exxon decision.

This case arises from the Washington Supreme Court in a decision regarding the Jones Act and maintenance and cure remedy.  The Washington court had approved an award of attorneys' fees for a willful and wanton failure to pay maintenance and cure.  The court then affirmed a punitive damage award but did not apply the Exxon Shipping Co. v. Baker compensatory damages to punitive damages ratio, instead allowing a roughly 3:1 ratio.

One to watch for sure. 

New Maintenance & Cure Case from Second Circuit - Messier v. Bouchard Transportation

The Second Circuit Court of Appeals just issued a decision relating to a seaman's right to maintenance and cure.  The case is Messier v. Bouchard Transportation and the opinion can be downloaded here.

While normally, discussions of "manifestation" and "occurrence" rules are seen in the insurance coverage context, see www.insurancelawhawaii.com, they also govern the availability of maintenance and cure payments for mariners' injuries.

In this case, a mariner's injury manifested when he was no longer a seaman, but was undoubtedly present when he was a seaman.  The court found that the occurrence test more fairly accomplished the objectives of the maintenance and cure remedy, and adopted it as the appropriate test.

SCOTUS: Briefs Filed in "What is a vessel?" Case

As mentioned in my post earlier, in the Supreme Court's next term, it will hear the case of Lozman v. City of Riviera Beach. My other posts on this case are here and here.

The Question Presented is:

Whether a floating structure that is indefinitely moored receives power and other utilities from shore and is not intended to be used in maritime transportation or commerce constitutes a "vessel" under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.

Amazingly, but not surprisingly, what is a "vessel" is a thorny question not amenable to a simple definition.  Are surfboards vessels?  Houseboats?  Floating casinos?  For every objective definition you attempt (e.g. vessels can be propelled through the water), there are exceptions (e.g. barges cannot propel themselves through the water).

On page 12 of his brief, the Petitioner urges the Court to adopt this definition: 

In order to be a vessel, a structure’s purpose must be to carry people or things over water, and indefinitely moored structures that function as extensions of land lack any such purpose.

Several briefs on the merits have been filed and I've provided links to them below:

Parties

Petitioner's Brief

Respondent's Brief

Amici

Brief of the United States Supporting Petitioner

Brief of Maritime Law Professors Supporting Petitioner

Brief of the Seattle Floating Homes Association and the Floating Homes Association of Sausalito in Support of Petitioner

Brief for the American Gaming Association in Support of Petitioner.

Stay tuned and we'll post the briefs as they come in.

Kaneohe Bay

Nimitz and Missouri

Happy July 4th

Nothing Like A Ship at Full Dress