Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

Marine Safety Alerts

On October 9, 2014 the U.S. Coast Guard issued two Marine Safety Alerts that are of particular interest to barge fleeting, terminals and repair facilities situated on the navigable waters of our state. These Alerts do not break new ground, but are worthy of review.

Safety Alert 11-14 addresses barge fleet lighting. The Coast Guard reminds industry that in the last 12 years there have been at least 44 collisions by recreational vessels with moored barges that have resulted in 26 fatalities and 44 injuries in the Eight District, which includes the Mississippi River and its tributaries. Lighting of the moored barges was a factor in most of these casualties. The intent of the Alert is to not only to remind fleet and terminal operators of the importance and necessity of proper, sufficient lighting, but to remind boaters of the dangers present when operating near and around barge fleets.

Rule 30 of the Inland Rules of the Road, “Anchored Vessels and Vessels Aground”, was amended in July of this year to incorporate barge lighting requirements that were previously found in other regulations. Part (h) requires that barges projecting into a buoyed or restricted channel, any barge moored so that it reduces a navigable channel to less than 80 meters (263 ft.), barges moored in groups of two or more wide, and every barge not moored parallel to a dock or the bank must carry two unobstructed all around white lights of an intensity to be visible for at least one nautical mile. Part (j) requires that such lights be placed on the outboard corners or extremities of single and groups of barges so as to mark their perimeters.

That these requirements are clearly spelled out in the Rule has significance from a legal liability perspective. In the general maritime law, the alleged violator of a statutory rule intended to prevent marine casualties is presumed at fault and the burden is on the alleged violator to prove not only that its violation was not a contributing cause of the casualty, but that it could not have been a cause. This is a heavy burden to carry. Diligent adherence to these regulations is a must.

Safety Alert 10-14 speaks to preventing barge explosions. This alert was issued in response to recent casualties from explosions aboard barges in tank cleaning, stripping and gas-freeing operations. The Coast Guard’s review of such events has shown that their cause is typically not limited to one party, but by the combined lapses on the part of vessel personnel, facility personnel and shoreside managers.

Those in the industry are well aware that the Coast Guard requires each such facility to have in place Operations Manuals. 33 CFR §154.300, 310, et. seq., sets forth in detail the necessary contents of the Manual. The list is lengthy, but essentially must set out the business of the facility, types of vessels and cargo being worked and handled, operating procedures and emergency response protocols. Each facility must have a Manual approved by the Captain of the Port. Having found that the most common causal factor associated with tank barge explosions is the failure to follow key Operating Manual procedures, the Coast Guard expects strict compliance.

The Alert reminds operators to ensure that personnel are thoroughly trained and credentialed, proper ventilation be in effect, that the barge/vessel is properly grounded and that spark-producing equipment be removed, prohibit vessels operating nearby so as to avoid the introduction of a source of vapor ignition, and the barge/vessel be certified safe by a Certified Marine Chemist before any hot work is conducted or closed spaces entered.

Much of what is contained in these Alerts may be self-evident to those who are engaged daily in these practices. However, being familiar with a practice is no guarantee that the persons engaged will not start taking for granted that procedures are being followed. An isolated lapse can lead to serious injury and property damage. Thus, reminders such as these Alerts help to insure that all personnel remain vigilant.

These Marine Safety Alerts may be found by visiting the U.S. Coast Guard 8th District website, www.uscg.mil/d8/.

BRB Weighs Widow Status, Remands for Justifiable Cause and Conjugal Nexus Determination

Decedent worked as a crane operator for twenty years, including six years for Employer.  He retired in 2004 because of orthopedic problems.  In 2008, Decedent was diagnosed with lung cancer.  Following his death in 2009, which was caused by non-small cell lung carcinoma with contributing causes of chronic obstructive pulmonary disease, hypertension, and pulmonary embolus, Claimant filed a claim for death benefits.  The issue was whether Claimant qualified as a “widow” under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

Pursuant to Section 2(16) of the LHWCA a “widow” includes a decedent’s wife who was “living with or dependent for support upon [the decedent] at the time of [the decedent’s] death; or living apart for justifiable cause or by reason of [the decedent’s] desertion at such time.”

The administrative law judge (“ALJ”) determined that Claimant was not a “widow.”  According to the ALJ, Claimant and Decedent had legally separated; there was no evidence of reconciliation; and the conjugal nexus had severed when Decedent filed for divorce.

On appeal to the Benefits Review Board, Claimant argued that she was a “widow” because she was dependent upon Decedent for support or, alternatively, she was living apart from Decedent for justifiable cause.  Claimant alleged she was dependent because of her receipt of the community portion of Decedent’s retirement pension, and Decedent’s continued health insurance coverage for Claimant.  The problem, however, was that Claimant did not raise this argument in front of the ALJ.  Accordingly, Claimant was required to show that she lived apart from Decedent for “justifiable cause” and that a “conjugal nexus” remained between Decedent and Claimant at the time of Decedent’s death…five years after they began living separate and apart from one another.

The alleged “justifiable cause” for living separate and apart was that Decedent had abused Claimant and that Decedent consumed too much alcohol.  The ALJ did not make a “specific finding regarding any justifiable cause for the separation, and addressed only whether a conjugal nexus existed at the time of death.”  Because the justifiable cause analysis was incomplete, the BRB vacated the ALJ’s denial of benefits and remanded the case with specific instructions:

On remand, if the administrative law judge finds evidence that, at the time of decedent’s death, there no longer was justifiable cause for claimant and decedent to be living apart, see Henderson, 204 F.2d at 179, claimant cannot be decedent’s widow and benefits should be denied.  If, however, he finds that the original justification persisted to the date of death, then he must consider whether the conjugal nexus had been severed.

The BRB also had instructions for the ALJ with respect to the conjugal nexus inquiry:

On remand, the administrative law judge must assess the weight and credibility of this, and any other, relevant testimony and evidence, as well as resolve conflicts in the evidence, in order to determine if claimant’s conduct maintained or severed her conjugal nexus with decedent.  The administrative law judge should re-examine the case precedent in view of the proper focus on claimant’s actions in maintaining or severing the conjugal nexus.  If the administrative law judge finds that the conjugal nexus between claimant and decedent had been severed, claimant is not decedent’s “widow,” and she is not entitled to death benefits.  If the administrative law judge finds that a conjugal nexus between the two existed at the time of decedent’s death, then claimant is decedent’s “widow” under the Act.  He then must address whether decedent’s death was work-related such that claimant is entitled to death benefits.

Johnston v. Hayward Baker, BRB No. 14-0032 (2014).

PA Court Requires Use of Longshore Benefits to Pay Spousal Support

On November 5, 2014, the Superior Court of Pennsylvania issued Uveges v. Uveges, a published opinion that addresses the intersection of family law and the Longshore and Harbor Workers’ Compensation Act’s (“LHWCA”) anti-assignment provision, 33  U.S.C. § 916.

The Facts–A Typical Family Law Case with a LHWCA Component:

The facts are fairly straight-forward.  The parties were married in 1972 and divorced in 2011.  While the divorce was pending, the parties entered into an alimony agreement whereby Husband would pay Wife “the sum of $2,500 per month for permanent alimony, modifiable only by remarriage, cohabitation, or the receipt by Wife of social security disability payments.”  Roughly six months after the divorce became final, Wife filed a petition to enforce the alimony agreement.  The trial court entered an order that “among other things provided for the attachment of Husband’s monthly benefits under the [LHWCA].”

Less than a month later, Husband’s prior Employer filed a petition for special relief, arguing that LHWCA benefits are exempt from attachment.  After a year-and-a-half of litigation, the trial “concluded on January 15, 2014 that the law permits an ex-spouse in Wife’s position to attach the [LHWCA] retirement or disability benefits of an ex-husband who has been found to be in contempt.”

The Law–LHWCA’s Anti-Assignment Provision:

The LHWCA’s anti-assignment provision is 33 U.S.C. § 916, which states:

No assignment, release, or commutation of compensation or benefits due or payable under this Act, except as provided by this Act, shall be valid, and such compensation and benefits shall be exempt from all claims of creditors and from levy, execution, and attachment or other remedy for recovery or collection of a debt, which exemption may not be waived.

Other state courts that previously analyzed the LHWCA’s anti-assignment provision determined that attachment was not allowed in a family court setting.  For instance, in Thibodeaux v. Thibodeaux, the Louisiana Supreme Court expressly stated that a wife could not garnish her ex-husband’s LHWCA benefits for past due child support.  See Thibodeaux v. Thibodeaux, 454 So. 2d 813 (La. 1985).  Then, in Spitalieri v. Spitalieri, 593 N.Y.S.2d 172, the Supreme Court of New York Richmond County, expressed sympathy for the plaintiff’s plight but nonetheless determined that LHWCA benefits could not be assigned.

At least one state court–before Uveges v. Uveges–allowed attachment of LHWCA benefits for child support purposes.  The District Court of Appeal of Florida, Third District, determined that child support payments could be withheld, and that the LHWCA’s anti-assignment provision was inapplicable to child support arrearages.  See Cigna Property & Casulaty v. Ruiz, 834 So. 2d 234 (Fla. 3 Dist. Ct. App. 2002).

The Reasoning–Why Uveges v. Uveges Allowed Attachment:

The Uveges court was persuaded by a Ninth Circuit decision, Moyle v. Dir., OWCP, and the Florida state appellate court’s Ruiz decision to support its conclusion that Wife could claim a portion of Husband’s LHWCA benefits.  In Moyle, the Ninth Circuit affirmed an administrative law judge’s decision that “disability benefits could be garnished to satisfy the recipient’s delinquent spousal support obligation.”  And, as mentioned before, the Ruiz court determined that Section 16’s anti-assignment provision applied to “claims of creditors” or “collection of a debt,” but a child support obligation was not a “debt.”

According to the Uveges court, Pennsylvania law has recognized that a spouse’s alimony or support obligation is not a “debt.”  As such, it follows that delinquent spousal support is not money owed to a “creditor,” and the delinquent money cannot be considered a “debt.”  As the court concluded:

In sum, because Husband’s LHWCA benefits are paid to him pursuant to federal law, and because Wife is not a “creditor” and Husband’s alimony obligation is not a “debt” under 33 U.S.C. section 916, the LHWCA benefits may be attached.  Additionally, we note our decision today is consistent with the historical treatment by Pennsylvania appellate courts of anti-attachment clauses vis-a-vis a claim for support or alimony.  We therefore affirm the trial court’s January 21, 2014 order attaching Husband’s LHWCA benefits for the payment of alimony.

Uveges v. Uveges, — A.3d —- (Pa. Super. Ct. 2014).