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Fifth Circuit En Banc Decision on Longshore Act

The Fifth Circuit, en banc, just reversed an earlier panel decision in a Longshore Act case which turned on the situs of the injury and whether it met the jurisdictional requirements of the Longshore and Harbor Worker Compensation Act.

En Banc decision is here.

Per the Court:

In particular, the BRB found that the claimant’s employment activities with NODSI took place in an area or location “adjoining” navigable waters“customarily used by an employer in loading [or] unloading . . . a vessel” and therefore NODSI’s facility met the situs requirement of the Act. We conclude that because the NODSI facility where Mr. Zepeda worked did not border on navigable waters, it was not a covered situs and Mr. Zepeda is entitled to no benefits under the Act from Petitioner NODSI. We therefore vacate the award of the BRB as against NODSI and remand for further proceedings.

Circuit Split ALERT....  Stay tuned.

New Ninth Circuit Admiralty Case - Himalaya Clause, Bills of Lading and Statutes of Limitation

The Ninth Circuit just issued a decision regarding guarantor liability for unpaid amounts following shipment of goods under several bills of lading.

The case is Clevo, Co. v. Hecny Transportation, Inc. and the original opinion case be found here.

From the court's syllabus (which is a handy-dandy tool the Ninth Circuit is using to provide a snapshot of the opinion:

Affirming the district court’s summary judgment in an admiralty action filed bya seller of computer parts, the panel held that misdelivery claims against a freight forwarder were barred by a one-year limitations period set forth in bills of lading.

The panel held that a guarantee, which established no express statute of limitations, was initially effective to place the seller and the freight forwarder in direct contractual privity. That initial relationship was modified when the bills of lading issued. By operation of a Himalaya clause, the benefit of the one-year statute of limitations in the bills of lading was extended beyond the non-vessel-operating common carrier that issued the bills of lading to the freight forwarder, an agent of the carrier.

ABA Section of Litigation 2013

Plenary session with David Axelrod, Mayor Emanuel and Senator Cullerton

New Video: Federal Appeals - My Presentation to the Hawaii State Bar Appellate Law Section

On April 15, 2013, I was pleased to be on a panel discussing federal appeals.  My co-panelists were Judge Rick Clifton of the Ninth Circuit Court of Appeals and Clare Connors of the Davis Levin Livingston firm.  

Lots of pointers about fonts, briefs, and oral arguments.  

 

New Ninth Circuit Longshore Case - Is Suicide Compensable Injury?

I am in trial this week, but a very interesting case was just handed down by the Ninth Circuit Court of Appeals.  The title is Kealoha v. Leeward Marine, Inc. and the opinion can be found here.

The Longshore Act precludes compensation for injuries caused by an employee's "willful intent to injure or kill himself."  33 U.S.C. 903 (c).  But, courts interpreting similar provisions of state worker compensation laws have allowed for compensation if the suicide, or attempted suicide, was work related.  Those courts that have found the statutory bar inapplicable have done so using a "chain of causation" test instead of a "fault" or "voluntariness" test.

In this case, the Administrative Law Judge applied an "irresistable impulse" test.  The Ninth Circuit held that the causation test was the more reasoned approach, stating:

Given the best-reasoned modern trend of case law, we hold that a suicide or injuries from a suicide attempt are
compensable under the Longshore Act when there is a direct and unbroken chain of causation between a compensable
work-related injury and the suicide attempt. The claimant need not demonstrate that the suicide or attempt stemmed
from an irresistible suicidal impulse. The chain of causation rule accords with our modern understanding of psychiatry. It
also better reflects the Longshore Act’s focus on causation, rather than fault. See 33 U.S.C. § 904(b) (“Compensation
shall be payable irrespective of fault as a cause for the injury.”).

No apparent circuit splits, but this is an issue to watch.

 

Houseboat Redux - Eleventh Circuit Reinstates Lawsuit

According to this report in the Miami Herald ("Houseboat activist Fane Lozman wins again; says he will seek million from city over civil rights"), the fellow who recently prevailed in the U.S. Supreme Court in Lozman v. City of Riviera Beach, No. 11-626 (Jan. 15, 2013) isn't giving up.

The Herald reports:

The 11th Circuit Court of Appeals reinstated a 2008 lawsuit Lozman filed against the city, claiming it repeatedly violated his civil rights by hiring a private investigator to trail him, kicking him out of public meetings and, at one point, having him arrested when he refused to leave.

"Today felt just a tad lower than winning at the Supreme Court," Lozman said shortly after the decision was announced. "The Supreme Court ruling was a 10. Today was a 9½."

...

But, while the high court’s ruling may have stung more, the 11th Circuit’s could be more costly.

When the nation’s high court in January ruled that the city improperly used ancient maritime law to seize and ultimately destroy Lozman’s 60-foot two-story floating home, the possible damages were somewhat fixed. City officials were faced with the prospect of paying Lozman for the $167,000 he claims it would cost to replace his home, the $300,000 he spent for attorneys and an undetermined amount to reimburse him for the money he shelled out for living expenses after his home was destroyed.

However, he said, if he succeeds in proving that the city violated his constitutional rights, the damages could skyrocket.

"If I was the city, I’d be concerned," he said. "That’s a seven-figure sum.

Download the 11th Circuit opinion here.

Lozman v. City of Riviera Beach, No. 11-15448 (11th Cir. Apr. 1, 2013)