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Damon Key's Legal Alert for Summer/Fall 2012

All you fans of Damon Key's Legal Alert - here is our edition for Summer/Fall.

Damon Key Legal Alert (Summer-Fall 2012)

New Jones Act Case from 11th Circuit - Harrisson v. NCL - Appeals From Remand Orders

OK, now that Thanksgiving is out of the way, I have a queue of cases to get out to my loyal followers.

First up, a Jones Act case from the Eleventh Circuit Court of Appeals, Harrisson v. NCL (Bahamas) Ltd., original opinion can be found here.  The case is REALLY about federal appellate court jurisdiction, so if you are only interested in substantive Jones Act cases, this isn't the post for you.

The claimant brought a Jones Act suit for negligence and for maintenance and cure in state court.  NCL removed the matter to federal court and sought an order to enforce an arbitration provision in the claimant's employment contract.  The district court found the arbitration provision to be void for violating public policy and remanded the matter to state court.

NCL appealed.  Typically, federal appeals courts do not have jurisdiction to hear appeals from orders remanding cases to state court.  28 U.S.C. 1447 (d). There are two exceptions:  1) where the remand order is based on grounds other than jurisdiction or a defect in the removal procedure or 2) where there are orders that lead to, but are separate from, remand orders that have conclusive effect on the state court proceeding.

The Eleventh Circuit found that neither exception to the statutory bar existed and dismissed the appeal.

Judge Hall dissented and found this was not a remand order only, but that it was an order denying a motion to compel arbitration which would be appealable under the Federal Arbitration Act, 9 U.S.C. 16(a)(1)(C).  Under Eleventh Circuit precedent, Lindo v. NCL (Bahamas) Ltd., 652 F.2d 1257 (11th Cir. 2011), see my post here,  these arbitration provisions in employment agreements are enforceable.

Stay tuned to this one.  The Federal Arbitration Act and the cases interpreting it have the potent effect of closing the federal courts to a wide range of claims that arise under written agreements to arbitrate.  If a litigant can bring a claim in state court, if the arbitration provision is found to be a violation of public policy and the matter remanded to state court, it could circumvent the overarching federal policy in favor or arbitration.  Most courts tend to institutionally favor arbitration, with correlative impacts on the number of jury trials conducted.

New Longshore Act Decision from Ninth Circuit - Keller Foundation v. Tracy

I have a rather large queue of cases to digest and disseminate, so excuse the delay.  I will still call it a "new" Longshore case, because, well, it is.

One oft-litigated issue in maritime injury cases is the situs and status test.  Longshore and harbor workers have a different worker compensation scheme than other maritime workers who have a different compensation scheme than land based workers.  As such, courts and litigants need to determine which compensation scheme covers a particular injury in order to bring that claim in the proper forum and understand which special rules apply to their injury.  In this case, the special rule is the Longshore Act's "last employer rule" which basically puts the last employer on the hook for a claimant's injury even if it was sustained during their employ with a different employer.

So, what happens when a worker has a heart attack while on a boat, but had earlier worked on a boat in a drydock, and on a boat in two foreign ports?  Is he covered by the Longshore Act?

The Ninth Circuit's most recent decision on this issue is in Keller Foundation v. Tracy.  The opinion was authored by Judge Ikuta and it can be viewed here.  The facts are simple:  a maritime worker suffered a heart attack that resulted from cumulative trauma from prior employers.  The Administrative Law Judge found that at the time of his injury, the claimant was not covered by the Longshore Act (his assignments didn't satisfy the status test -is he a harbor worker - or the situs test - did the injury occur in the longshore area).  The Benefits Review Board affirmed.

On appeal, the Ninth Circuit reviewed, in great detail, the facts of the claimants' various job assignments - all of which, it ultimately concluded, where maritime in status and not Longshore in status.  As to some injuries which occurred on foreign territorial waters, the Court found that the Longshore Act did not extend to foreign territorial waters as those waters are not "navigable waters of the United States."

Holy Striped Marlin Batman - Feds Prohibit Mainland Billfish Sales

Congress recently passed the Billfish Protection Act, it became Public Law No. 112-183

The text of the bill provides:

AN ACT 
To prohibit the sale of billfish. 

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Billfish Conservation Act of 2012’’. 

SEC. 2. FINDINGS. 
Congress finds the following: 
(1) The United States carefully regulates its domestic fisheries for billfish and participates in international fishery management bodies in the Atlantic and Pacific. 

(2) Global billfish populations have declined significantly, however, because of overfishing primarily through retention of bycatch by non-United States 
commercial fishing fleets. 

(3) Ending the importation of foreign-caught billfish for sale in the United States aligns with U.S. management measures of billfish and protects the 
significant economic benefits to the U.S. economy of recreational fishing and marine commerce and the traditional cultural fisheries. 

SEC. 3. STATEMENT OF CONSTITUTIONAL AUTHORITY. 
The Congress enacts this Act pursuant to clause 3 of section 8 of article I of the Constitution. 

SEC. 4. PROHIBITION ON SALE OF BILLFISH. 

(a) PROHIBITION.—No person shall offer for sale,sell, or have custody, control, or possession of for purposes of offering for sale or selling billfish or products containing billfish. 

b) PENALTY.—For purposes of section 308(a) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858(a)), a violation of this section 
shall be treated as an act prohibited by section 307 of that Act (16 U.S.C. 1857). 

(c) EXEMPTIONS FOR TRADITIONAL FISHERIES AND MARKETS.

    (1) Subsection (a) does not apply to billfish caught by US fishing vessels and landed in the State of Hawaii or Pacific Insular Areas as defined in sec-
tion 3(35) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.1802(35)). 

    (2) Subsection (a) does not apply to billfish landed by foreign fishing vessels in the Pacific Insular Areas when the foreign caught billfish is exported to non-US markets or retained within Hawaii 
and the Pacific Insular Areas for local consumption. 

(d) BILLFISH DEFINED.—In this section the term ‘‘billfish’’— 

    (1) means any fish of the species— 
	(A) Makaira nigricans (blue marlin); 
	(B) Kajikia audax (striped marlin); 
	(C) Istiompax indica (black marlin); 
	(D) Istiophorus platypterus (sailfish); 
	(E) Tetrapturus angustirostris (shortbill spearfish); 
	(F) Kajikia albida (white marlin); 
	(G) Tetrapturus georgii (roundscale spearfish); 
	(H) Tetrapturus belone (Mediterranean spearfish); and 
	(I) Tetrapturus pfluegeri (longbill spearfish); and 

    (2) does not include the species Xiphias gladius (swordfish).

The Hawaii exemption looms large.