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New Jones Act Case from 5th Circuit - Scope of Employment

There is an adage:  bad facts make bad law.  But, there is a corollary that not every wrong has a remedy.

The Fifth Circuit has a new Jones Act case that highlights this corollary.  The case is Beech v. Hercules Drilling Company, LLC and it can be found here.

Facts:  two oil rig workers.  One brings a firearm to the rig (in violation of company policy) and shows it to another worker.  The gun inadvertently goes off mortally wounding the worker.  Worker's widow brings a Jones Act suit and obtains a judgment at trial.

On appeal, the employer argued that the injury was not in the scope of the firearm owner's employment.

Analysis:  as an initial matter, it is crucial to note that the Jones Act is not a worker compensation statute.  It is liberally construed in favor of injured workers, but Jones Act liability is rooted in negligence, not strict liability.

So, in this case, the employer is only vicariously liable for its employees, when those employees are acting within the scope of their employment.  As the court noted:

One of those common law principles that still carries “great weight” in the FELA and Jones Act context is that an employer may be vicariously liable for its employee’s negligence under the doctrine of respondeat superior so long as the negligence occurred “in the course of employment.” See, e.g., Landry v. Oceanic Contractors, Inc., 731 F.2d 299, 303 (5th Cir. 1984); Sobieski v. Ispat Island, Inc.,
413 F.3d 628, 632 (7th Cir. 2005) (“[V]icarious liability may extend to FELA or Jones Act employers under the traditional doctrine of respondeat superior.

So, the question turns on whether the firearm owner was acting in the scope of his employment.  On the applicable legal test, the circuits appear to have split.  The Seventh Circuit, in Baker v. Baltimore & Ohio R.R. Co., 502 F.2d 638, 641-42 (6th Cir. 1974) adopted a business interests test where an employee could be in the scope of his/her employment when actually in the service of his employer AND doing those things incident to that service.

Ultimately, the Fifth Circuit analyzed the facts under both tests and found that the firearm owner was not acting in the scope of his employment, nor was his handling of the firearm incidental to his employment.

 

Hawaii Ocean, Not Much Law

Waikiki at sunset, always beautiful

Cub Scout Pack 1 Service Project

Pack 1 service project at Mahuahua Ai O Hoi in Heeia

ABA Opening Assembly

ABA Annual Meeting 2012 - Opening Assembly

SCOTUS FLASH - Is "Vessel" case Moot?

The Supreme Court issued an order in the pending "vessel" case of Lozman v. Riviera Beach.  The order is:

The parties are directed, and the Solicitor General is invited, to file letter briefs addressing the following question: “The res in this putative in rem admiralty proceeding was sold at a judicial auction in execution of the district court’s judgment on a maritime lien and a maritime trespass claim, Petn. App. 9a- 10a, and subsequently destroyed, Petr. Br. 10-11. Does either the judicial auction or the subsequent destruction of the res render this case moot?” The briefs, limited to 10 pages, are to be filed simultaneously with the Clerk and served upon opposing counsel on or before 2 p.m., Tuesday, August 28, 2012.

My earlier post on this case is here.

Ninth Circuit Brief - Hawaii's Firearms Law is Reasonable Restriction on 2nd Amendment Rights

Several years ago, the Supreme Court handed down a noteworthy decision regarding the not-frequently litigated 2nd Amendment to the U.S. Constitution.  In Heller v. District of Columbia, the Supreme Court held that the Second Amendment did protect a person's right to possess a pistol in their home.  More recently, in McDonald v. City of Chicago, the Supreme Court held that Heller applied to state laws as well.

In the wake of these two seminal decisions, federal litigation erupted nationwide.  What is reasonable regulation?  Is it geographically encumbered right?

In Hawaii, a lawsuit was filed challenging several aspects of Hawaii's firearm laws.  It is Baker v. Kealoha.  Judge Kay denied a motion for preliminary injunction and the plaintiff appealed to the Ninth Circuit. 

With co-counsel from Hogan & Lovells, and on behalf of the Brady Center to Prevent Gun Violence, today, we filed a motion seeking to file an amicus curiae brief in support of the City and County of Honolulu.

The Plaintiff's Opening Brief is: here.

The City's Answering Brief is:  here.

The Brady Center's proposed amicus brief is:  here.

Ninth Circuit Decides Aboriginal Fishing Rights on Outer Continental Shelf

The Ninth Circuit just issued a decision in a case arising from an aboriginal claim of fishing rights off the coast of Alaska.   The en banc decision denied the claim of aboriginal fishing rights with a mildly stinging dissent.  The case is Native Village of Eyak v. Blank, and it can be downloaded here.

First off, editorial note.  I'm not a judge, but in fishing cases, I think it makes sense to the readers of the world to avoid fishing metaphors.  "Even those the Villages don't contest those findings, the dissent goes on a [wait for it....] fishing expedition through the trial record and testimony to make its own factual findings."

Federal law recognizes that aboriginal rights can exist absent any treaty or statute.  In order to prevail on a claim for such rights, the proof required is that the right was "actual, exclusive, and continuous use and occupancy 'for a long time'."  Most first year law students will recognize the elements of an adverse possession claim.  Interesting to see its applicability to an ocean setting.  It is a big ocean after all.

The trial court reviewed the villages proof that for thousands of years, their ancestors used the Outer Continental Shelf for fishing and hunting grounds.  The trial court and the majority accepted that such use was made of these marine areas, but found that the villages use was not "exclusive." 

As such, the majority held that the Villages claims failed.

Judge W. Fletcher dissented (and was joined by four other judges).  Perhaps not impressed with the resounding dismissal of his analysis of the law, Judge Fletcher said, "the majority misstates the law and misreads plain English."  The dissent thought that there was enough evidence that these fishing rights were exercised on at least part of the claimed marine area, warranting a trial to determine those areas.

Eleventh Circuit Holds Marine Surveyor Guilty for MARPOL Violations

In a question of first impression, the Eleventh Circuit affirmed the conviction of a marine surveyor for knowingly violating the MARPOL treaty while aboard a foreign vessel in a U.S. port.  The case is United States v. Pena and can be read here.

By way of legal background, MARPOL is the name of the International Convention for the Prevention of Pollution from Ships.  The United States is a signatory to MARPOL and passed the Act to Prevent Pollution from Ships.  33 U.S.C. 1901 authorizes the Coast Guard to implement MARPOL through issuance of regulations.  Among the regulations adopted to address pollution is the requirement that oily bilge water be maintained for discharge at a suitable facility in port or run through an oily-water-separator which removes much of the oil from the water thereby allowing at-sea discharge.  A ship's flag state has the responsibility to certify the ship's compliance with MARPOL by issuing an International Oil Pollution Prevention Certificate.  The flag state may use classification societies who employ surveyors to make the certification.

Facts:  A ship making a port call in Fort Lauderdale was inspected by the U.S. Coast Guard.  A classification society's surveyor signed the IOPP certificate for the ship.  Inspection of the vessel revealed that it did not have the required system to separate oily water and, in fact, had a "makeshift system of pumps and rubber tubes" to pump the oily waste from the bilge directly to the main deck where it could flow into the ocean.  The surveyor admitted that he had not tested the oily water separator and that he did authorize the ship's chief engineer to place the pumps in the bilge for use to pump the bilge water overboard, "but only in an emergency."  The surveyor was convicted. 

Analysis:  The surveyor challenged U.S. jurisdiction over the offense, which the court found was present.  Foreign ships in U.S. harbors face broad jurisdictional reach of U.S. laws.  The surveyor additionally challenged the sufficiency of the indictment and the jury instructions.  The court of appeals found both to be lawful and affirmed the conviction.

Damon Key Sponsors Honolulu Legal Film Series - September 1 - 6

"The First Thing We Do, Let's Film All the Lawyers" is a one week film series at the Honolulu Museum of Art's Doris Duke Theater.

Check out www.lawinfilm.com. I've reprinted our inaugural post there,

With apologies to Shakespeare for malappropriating his infamous quote from Henry the Sixth, “The First Thing We Do, Let’s Film All The Lawyers” is a one-week film series examining the role of lawyers in addressing our most pressing issues: when has a convicted murderer paid her debt to society; when should someone’s rights yield to another’s notion of the greater good; can a person who admits to the act not be criminally responsible? 

The series screens at the Honolulu Museum of Art's Doris Duke Theatre September 1-6, 2012. Browse this site for show times, film reviews, previews, details about the Opening Night reception, parking and transportation, and advance ticket purchases. 

The films in the series were chosen to illustrate how lawyers—for better or worse—are the critical component in answering these pressing questions, and to highlight the moral and ethical dilemmas presented to lawyers and their clients.

The series is sponsored by the Honolulu law firm Damon Key Leong Kupchak Hastert, and features on Opening Night the Hawaii premiere of the award-winning documentary Crime After Crime, a New York Times' Critic's Pick ("difficult to leave the theater with dry eyes and an untouched heart") that was recently shown by the American Bar Association. 

Other films include hidden gems The Castle and Counsellor at Law, and the classic legal films To Kill a Mockingbird and Anatomy of a Murder. Each film will be introduced by a Damon Key lawyer who will also lead a discussion of the issues raised following the screening. 

ABA Opening Assembly - CG TJAG

Even the Coast Guard