Lozman Will Be Argued Before the Supreme Court on October 1st

It looks like Lozman is going forward.  Arguments are scheduled for October 1st, and there is no indication from the Supreme Court that Lozman will be removed from the docket for a lack of controversy.  In fact, in supplemental briefs requested by the Court, all parties agreed that the case should go forward because a controversy does exist, even though the structure at issue (a houseboat) was destroyed.

On SCOTUSBlog, reporter Lyle Denniston prepared a thorough and thoughtful write-up of the case.  Why should the maritime community care about Lozman?  As stated by Mr. Denniston:

The case will require the Court to spell out when a floating structure qualifies, legally, as a “vessel,” such that a dispute in which it is involved must be resolved in admiralty court under special rules of maritime law.   The case has attracted the interest of the federal government, as well as of groups whose members make their living in marine industries, plus lawyers in the specialized field of maritime law, owners of houseboats, and even the operators of riverboat casinos.   They all will be affected by how the Court defines “vessel.”

Cook Lacks Seaman Status

Plaintiff, who worked as a cook on a barge, evacuated the barge because of a fire.  He injured his neck and back while jumping from the barge to a vessel.  Plaintiff sued for negligence under the Jones Act, unseaworthiness of the vessel under general maritime law, and maintenance and cure.

Defendant, Plaintiff’s employer, was a catering company that provided contract labor to perform catering services on land, fixed platforms, and vessels.  Defendant filed a Motion for Summary Judgment arguing that Plaintiff was not a seaman under the Jones Act and that his claim for maintenance and cure should be dismissed.  The parties agreed that Plaintiff met the first element for seaman status.  He served as a cook to the vessel and contributed to the function of the barge.  The issue was whether Plaintiff met the second requirement, which is that he must have a connection to a vessel in navigation or to an identifiable fleet of vessels that was substantial in both duration and nature.

Defendant submitted evidence that none of their employees were permanently assigned to any vessel or identifiable fleet of vessels.  Further, Defendant showed that its employees were given only short term assignments on various land-based facilities, platforms and vessels.  The Court found that the position for which Plaintiff was hired was comprised of short-term assignments in various locations, including land-based facilities, platforms and vessels.  The Court therefore held that Plaintiff failed to meet his burden of establishing that he was a Jones Act seaman and granted Defendant’s Motion for Summary Judgment.

Ray v. Coastal Catering, LLC, 2012 WL 4210295 (E.D. La. 2012).

Eleventh Circuit Rejects Employer’s Rooker-Feldman, Claim Preclusion and Res Judicata Arguments

Franklin Vazquez, a Jones Act seaman, suffered injuries when a gas-powered tool exploded in his hands while working.  He filed suit against his employer in Florida state court but his case was eventually dismissed under Florida’s doctrine of forum non conveniens.  Vasquez later brought identical claims in federal district court.  The district court concluded that under principles of res judicata and collateral estoppel, Vasquez was barred from litigating the facts relevant to his federal maritime claims.  The district court ultimately dismissed the case based on federal forum non conveniens and the Rooker-Feldman doctrine.

Vazquez appealed the dismissal, arguing that the state court’s dismissal based on state forum non conveniens could not bar a federal court from determining whether federal maritime law applied to his case.  The United States Eleventh Circuit Court of Appeals began by analyzing the applicability of Rooker-Feldman.  The court explained that, under this doctrine, the United States Supreme Court’s appellate jurisdiction over state-court judgments divests a federal district court of subject-matter jurisdiction over a matter it could otherwise adjudicate. The doctrine prevents the lower federal courts from becoming courts of appeal for state court decisions.  In this case, however, Vasquez was not seeking review of the state court’s decision. Vazquez sought review of the district court’s order that federal maritime law did not apply, an issue on which the state court did not rule.

The court next addressed the employer’s argument that Vasquez was precluded from re-litigating factual issue determined by the state court under the doctrine of collateral estoppel.  The court explained that the doctrine does not apply unless an issue was fully litigated and determined by a final decision of a court of competent jurisdiction and the parties and issues involved in the second proceeding are identical.  Here, the issues in the two proceedings were not identical.  In the federal court proceeding, Vasquez sought to litigate the applicability of federal maritime law and federal venue in the Southern District of Florida, while the state court proceeding dismissed his complaint under the state’s doctrine of forum non conveniens.

The court also rejected the employer’s argument that Vasquez’s claims were barred by res judicata.  That doctrine would only apply if the litigation in the previous proceeding resulted in a judgment on the merits.  The state court’s dismissal on the basis of forum non conveniens was not an adjudication of the merits but, rather, was a refusal to exercise jurisdiction while permitting the parties to litigate elsewhere.  The Eleventh Circuit vacated the decision of the district court and remanded for consideration of whether federal maritime law applied to Vasquez’s claims.

Vasquez v. YII Shipping Co., Ltd., — F.3d —, 2012 WL 3740435 (11th Cir. 8/30/12).

When is the Employer Responsible for Actions of the Employee?

Last month the Fifth Circuit Court of Appeals rendered its decision in Beech v. Hercules Drilling Company and reversed the ruling of the District Court which had held Hercules responsible for the negligent act of its employee which had resulted in the death of a co-worker.

Keith Beech (“Beech”) was a crane operator working aboard a jack-up drilling rig that his employer, Hercules, owned.  Michael Cosenza (Cosenza”) worked as a driller aboard the same vessel.  When Cosenza came aboard, he accidentally brought a firearm with him, which violated Hercules’ policy prohibiting weapons on the vessel.  Cosenza and Beech were both aware of Hercules’ policy against firearms.  After discovering the firearm in some of his laundry, Cosenza did not tell anyone that he had inadvertently brought it aboard.  Instead, he kept it hidden in his locker on the rig.  This failure to report the firearm constituted an additional violation of Hercules’ safety policy.

Cosenza was assigned to work a night shift and was the only crewman on duty.  Cosenza’s duties that night were to monitor the rig’s generator, to check certain equipment, and to report any suspicious activity or problems.  Hercules encouraged Cosenza to stay in the break room while he performed these duties, watching television and commiserating with fellow crew members.  Cosenza could simultaneously watch television and monitor the generator because if something were to go wrong with the generator, the television would turn off.

Beech was not on duty, but was aboard the vessel and subject to the call of duty.  Both men were in the rig’s television room watching television and chatting.  Beech mentioned that he was thinking about purchasing a small firearm, and Cosenza, thinking Beech might be interested in seeing his firearm, left the break room and went to his locker to retrieve it.  Upon returning, Cosenza showed the firearm to Beech, who inspected it but did not handle it.   As Cosenza sat back down in the TV room his arm bumped a part of the couch, and the firearm accidentally discharged, mortally wounding Beech.

Mrs. Beech subsequently brought a wrongful death action against Hercules under the Jones Act.  After a bench trial, the district court granted judgment in favor of Mrs. Beech, individually, in the amount of $876,997.00 and as tutrix, guardian of her minor child, in the amount of $317,332.00, for a total recovery of $1,194,329.00.  Hercules argued on appeal that Beech and Cosenza were not acting in the course of their employment at the time of the accident and that the district court’s judgment in favor of Mrs. Beech must, for that reason, be reversed.

Beech had sued Hercules under the Jones Act which allows seamen injured in the course of their employment to sue their employer for its negligent acts that cause the injury.  Because seamen historically are considered “wards of the court,” the Jones Act was written so as to provide for the welfare of seamen.  The Act has resulted in broader employer liability than would have been possible under the common law or state law, meaning that while the employer is not the insurer of the safety of the seaman, the slightest negligence on the part of the employer is sufficient for a finding of liability on its part.

One of the principals of law that applies in the Jones Act 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.  To succeed, the injured employee must show that both he and the employee who caused the harm were acting in the course of their employment at the time of the accident.  Here, the district court concluded that Beech was acting in the course and scope of his employment because he was aboard the vessel and subject to the call of duty at the time he was shot.  Hercules argued on appeal that because Cosenza’s decision to show off his firearm did not further Hercules’ business interests, and because it was in no way related to his job duties, he was not acting within the course and scope of his employment at the time of the accident.

After analyzing prior decisions from federal courts across the country, the Fifth Circuit held that regardless of whether the underlying injurious conduct was negligent or intentional, the test for whether a Jones Act employee was acting within the course and scope of his employment is whether his actions at the time of the injury were in the furtherance of his employer’s business interests.

Applying this standard, the court found that when Cosenza left the break room to retrieve a loaded firearm when he was supposed to be monitoring the generator and watching out for suspicious behavior took him outside the course and scope of his employment.  The court observed that Cosenza’s conduct was clearly contrary to Hercules’ business interests, thus exculpating Hercules of responsibility and that to hold otherwise would impose strict liability upon Jones Act employers.