Louisiana’s Third Circuit Discusses Vessel Status of a Work Platform

Wooden hammerClaimant worked as an operator/deck hand for Employer for approximately eight months, when in February 2013, he suffered a partial amputation of his right thumb at work. Claimant required two surgeries for his thumb injury, and he timely received benefits under the Longshore and Harbor Workers Compensation Act. In May 2013, Claimant filed suit against Employer for money damages under the Jones Act claiming he qualified for status as a Jones Act seaman under 46 U.S.C.A. § 30104. Employer terminated Claimant’s Longshore benefits and began paying maintenance and cure under the provisions of the Jones Act. On December 6, 2013, Employer filed a Motion for Summary Judgment that Claimant was not a Jones Act seaman. The trial court granted the Motion for Summary Judgment. Claimant appealed to the Louisiana State Court of Appeal for the Third Circuit arguing the trial court misapplied Article 966.

Claimant’s work duties included both on-the-shore and “on the water” activities. He testified at his deposition that he spent 30-40% of his work time on the shore loading fertilizer onto trucks for delivery from Employer’s warehouse facility, and in the Biloxi-Gulfport area using an excavator to move sand to Employer’s port facility. Claimant spent the remaining 60-70% of the time working for Employer “on the water” on a floating, fixed platform in the Red River. The work platform was tied securely to the bottom of the river with pipes and a system of chains and cables. The platform had no navigational functions and was completely fixed in place. An excavator on the platform was used to unload fertilizer from transport barges. The barges were pushed to the work platform by a fleet boat or a line boat. Claimant tied the transport barge to the work platform and unload them. Once unloaded, the transport barge was moved away from the platform using the fleet boat. Claimant never got on Employer’s boat or was attached to a vessel of any kind. The work done by Claimant was accomplished on the work platform, on shore, and occasionally on the transport barges, which is where claimant was working at the time of injury. Claimant had no involvement in moving products on the river. For these reasons, the trial court found that the work platform at issue did not constitute a “vessel,” and Claimant did not qualify as a seaman under the Jones Act.

Qualification as a Jones Act seaman required claimant to show (1) that his duties “contributed to the function of the vessel or to the accomplishment of its mission” and (2) “a connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” The determination of whether a given craft is a vessel is ordinarily resolved as a matter of law, however, fact issues may be presented. 1 U.S.C. § 3 defines “vessel” as a water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water (either practically possible or merely theoretical). A watercraft is not capable of being used for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. From a practical standpoint, it must be designed to a practical degree for carrying people or things over water and subject to the peril of navigation to which craft used for transportation are exposed.

Similarly, the work platform in question was moored in place with no movement since 2010, it was secured by two pipes deeply embedded in the river, it had no United States Coast Guard documentation, it had no independent means of propulsion and no raked bow, it could not independently be navigated or be steered, if the work platform were to be moved it would be an extensive process requiring at least two tug boats and five personnel, and the platform had never moved during the time Claimant was employed by Employer. The Third Circuit thus concluded that the work platform where claimant worked 60-70% of the time was not designed to serve a transportation function and did not do so, and it did not qualify as a vessel in navigation for the purpose of allowing Claimant to maintain a Jones Act claim.

Albert Ross Armand v. Terral River Service, Inc., CA-14-610 (La. Ct. App. 3 Cir. 12/10/14).

Tort Law’s “Zone of Danger” Test is Not Applicable to Longshore Psych Claims

2572917367_74b111ac08_o - forkliftWhile operating a forklift, claimant accidentally struck and killed a fellow employee.  Claimant’s testimony revealed that, after the accident, he and other employees attempted to extricate the decedent’s body from underneath the forklift.  The day after the accident, claimant first sought medical attention for a psychological injury arising from the forklift incident.  Claimant saw multiple mental health professionals.  After a formal hearing to address claimant’s request for Longshore benefits, an administrative law judge awarded benefits despite Employer’s argument that claimant did not meet the requirements of the “zone of danger” test.  On appeal, the Benefits Review Board affirmed.

At the outset, it must be noted that the “zone of danger” test argued by the employer in this case is not the “zone of special danger” test referenced in many Defense Base Act cases.  Instead, the employer argued in favor of importing the “zone of danger” test applied in tort law. The “zone of danger” test relied upon by the employer would limit recovery for negligent infliction of emotional distress injuries “to those plaintiffs who sustain a physical impact as a result of a defendant’s negligent conduct, or who are placed in immediate risk of physical harm by that conduct.”

The  Board  dispatched the employer’s “zone of danger” argument:

We agree with claimant and the Director that the “zone of danger” test, upon which employer relies, is a tort concept which does  not apply to the workers’ compensation provisions of the Longshore Act.  As noted by the Director, employer cites five federal court decisions in which the “zone of danger” test was applied to limit plaintiff’s recovery for the negligent infliction of emotional distress.  . . .  employer’s reliance on these cases is misplaced, however, as its argument fails to acknowledge the critical distinction between tort actions, which rely on common law fault and negligence principles, and workers’ compensation claims, which are not governed by those principles.

. . .

Thus, as we reject employer’s position that the line of cases applying the “zone of danger” test in tort actions for the negligent infliction of emotional distress should be extended to workers’ compensation claims under the Longshore Act, we affirm the administrative law judge’s rejection of employer’s contention that the “zone of danger” test precludes an award of disability compensation in this case.

Jackson v. Ceres Marine Terminals, BRB No. 14-0071 and14-0071A (2014).

Forklift image courtesy of Flickr user Jaxport.

What to Do When Your Dock is Damaged By a Ship With a Compulsory Pilot on Board

5223924101_a0488c4e25_zPilotage has existed since ancient times and is as necessary and important now to commercial shipping as it was when Roman law set forth the obligation on the part of the vessel to take a pilot.  A pilot is employed because he is presumed to have knowledge of tides, currents, and their effect upon the ship and all other dangers affecting the safety of the vessel due to local conditions.  In the United States, compulsory pilotage laws pre-date the Revolution.  Early on, Congress recognized that it would be wiser to leave regulation of local pilotage grounds to the individual states.

What happens, however, if a foreign ship carrying a compulsory pilot allides with your dock and causes damage?  Who is responsible—the ship, its master, or the pilot?  What should you, as dock owner, do?

The reason that a vessel employs a pilot, whether compulsory or voluntary, is in large measure because such an individual is expected to have expert local knowledge of the navigable waterways.  He is charged with knowledge and awareness of local conditions, including both published obstacles and dangers not evident on charts or from outward appearances.  The courts have found that pilots may be charged with knowledge of a local condition as a matter of law.  As a result, the courts have consistently come to the conclusion that a pilot may be held individually liable for damage caused by his negligent navigation to the vessel which he is piloting or to third parties which is the result of his failure to exercise due care.

Although a pilot might be regarded as an independent contractor as respects the ship he is aboard and its owners, he is at all times subject to the ultimate control of the ship’s master.  Even though the pilot is deemed to be an expert in navigation of vessels that he guides over his pilotage grounds, the master of the vessel is still in command of the vessel and must, under appropriate circumstances, intervene, interfere, warn or even take over and relieve the pilot.  This duty arises if the master of the vessel observes or discovers incompetency of the pilot or it becomes manifest that the pilot is steering the vessel into danger.  Thus, the courts have required the master to carefully observe and monitor the actions of the pilot.

When damage occurs, the prudent dock owner must move quickly, especially when the offending vessel flies a foreign flag.  While you may be able to procure jurisdiction over the pilot and, if he is found liable, have judgment rendered against him, this remedy may be mere delusion as he will likely not be able to respond to such a judgment.  You may be left with no remedy if the vessel leaves port.

Consequently, the dock owner should look to relief provided by Supplemental Admiralty Rules B and C found in the Federal Rules of Civil Procedure.  These rules provide for attachment and seizure, respectively, of the vessel.

Rule C addresses seizure, which allows anyone with a maritime lien against a vessel to arrest the vessel and proceed against it in a so-called in rem action.  The in rem action is based on the fiction of the personality of the vessel.  When the vessel allided with your dock, the damage it caused immediately gave rise to a maritime lien.  In the in rem action, you proceed against the vessel itself, called the res, to satisfy that lien.  Rule B, on the other hand, addresses attachment, a procedure in which the property of the vessel owner is held in order to compel the owner to submit to the personal jurisdiction of the court, and in order to provide a fund from which any judgment against the owner may be satisfied.  Any property of the owner which can be found in the district, not just the offending vessel, is subject to attachment under Rule B.

By seizing the vessel, the dock owner has security to cover his damages. The vessel owner may post security to cover the dock owner’s claim and the vessel can be released. Mere threat of seizure often results in security being posted, by way of a bond or letter of undertaking from the vessel’s insurer.

At the same time, the dock owner should move the court to require the key members of the vessel’s crew to give their depositions for perpetuation.

In sum, if the vessel owner does not agree to come forward and post security, the dock owner must arrest and/or attach the vessel and proceed both in rem against the vessel and in personam against the owner.  If the owner agrees to post security for the value of the claim, the security can be substituted for the vessel, allowing its release, and providing a fund for the satisfaction of any judgment from the claim.  On motion, the court may require the crew to be deposed or other discovery taken within a given period of time, although if they have already departed, arranging for their transportation may be the plaintiff’s responsibility.

Rules B and C of the Federal Rules of Civil Procedure allow a party aggrieved by a foreign vessel to force the tortfeasor into court by seizing the offending vessel (or, in the case of attachment, another vessel of the same owner), although recovery may well be limited to the value of the vessel.  By acting quickly to arrest and attach the offending vessel, the dock owner can protect himself from damage caused even by a foreign vessel under compulsory p­­ilotage.

Image courtesy of Flickr.

Fifth Circuit Roles Back Seaman’s Entitlement to Punitive Damages

3367543296_1470ef5247_zThis article originally appeared in WorkBoat Magazine.

The December 2013 Legal Talk column addressed the very significant ruling a three judge panel of the Fifth Circuit Court of Appeals in McBride v. Estis Well Service. That case signaled a major expansion in the law regarding semen’s entitlement to recover punitive damages under the general maritime law.  The availability of punitive damages had been extremely limited since the 1990 Supreme Court case of Miles v. Apex, which held that non-pecuniary damages, which would include punitive damages and similar non-economic type losses, were not recoverable by seamen, whose legal remedies are largely governed by the Jones Act.

Courts have chipped away at the scope of the Miles ruling since then, most notably by the Supreme Court itself in 2009 when the Townsend case recognized that a seaman could get punitive damages for his employer’s willful failure to pay maintenance and cure.  The McBride case took that holding a huge step further by allowing seamen to recover punitive damages for unseaworthiness claims arising under the general maritime law.

The McBride case, however, was recently reconsidered by the entire Fifth Circuit en banc, which reversed the previous ruling by the three judge panel.  Now, the rule in the Fifth Circuit is that Jones Act seamen have no cause of action for punitive damages for either negligence or unseaworthiness. The latest McBride ruling is in keeping with the general pronouncement of the Supreme Court’s Miles v. Apex case regarding the unavailability of non-pecuniary damages in Jones Act cases.

While this significant ruling reflects a trend followed by other federal appeals courts, this issue remains unsettled in some jurisdictions. The Supreme Court may once again have to take up the punitive damages issue to establish uniformity among all courts on this important aspect of maritime law.

Excellent image courtesy of Flickr user Andrew Magill.