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In a recent unpublished decision, the United States Fifth Circuit Court of Appeals explained the nature of its review of the denial of a motion for new trial.  The plaintiff in the underlying case was injured while working on a commercial fishing vessel.  He filed a Jones Act negligence and unseaworthiness claim against his employer.  After a three-day jury trial, a unanimous verdict was returned in favor the employer.  The district court subsequently denied the plaintiff’s motion for new trial, finding the verdict was not against the great weight of the evidence.  The plaintiff appealed the district court’s denial of his motion for new trial.

On appeal, the Fifth Circuit noted several pieces of evidence in the record to support the jury’s verdict.  For example, the vessel’s captain testified that the plaintiff had violated company policy by attempting to moor the vessel while it was still moving.  The captain also testified that immediately following the accident, the plaintiff had remarked that it was a result of his own “dumb, stupid mistake.”  Further, the plaintiff had given a statement that the accident was not caused by an unseaworthy condition of the vessel.

The court commented in a footnote that the plaintiff seemed to concede that there was evidence to support the verdict.  However, the plaintiff argued that the evidence was not credible and should be disregarded.  The court took this argument as an indication that the plaintiff misunderstood the nature of its review.  The court explained that it was bound to accept the evidence in support of the verdict as true and that its task was to decide whether there is an “absolute absence” of evidence, not second guess the credibility determinations of the jury.  The Fifth Circuit affirmed the district court’s denial of plaintiff’s motion for new trial.

In June 2007, Rodney Hamm was injured during his employment with Rodan Marine Services II, LLC (“Rodan”).  At the time of his injury, Hamm was moving equipment between his vessel, the M/V Tara Louisa, and an oil platform permanently affixed to the Outer Continental Shelf.  While performing his task, Hamm became pinned against the side of the vessel by a cargo basket and suffered injuries to his back and hips.

Approximately seventeen months after his injury, Hamm filed suit against Rodan and Island Operating Company, Inc. (“IOC”), the owner of the oil platform.  Hamm alleged admiralty jurisdiction and elected a non-jury trial pursuant to Rule 9(h).  However, IOC and Rodan requested a jury in their answers and the court clerk set the case to be tried to a jury.  Hamm subsequently moved to have the case classified as an admiralty suit and designated for a non-jury trial.  In response, IOC moved alternatively to dismiss or for summary judgment based on the one-year statute of limitations under Louisiana law.  IOC claimed that Louisiana substantive law applied under the Outer Continental Shelf Lands Act (“OCSLA”).  The district court ultimately adopted the magistrate judge’s report and recommendation to grant Hamm’s motion and deny IOC’s.

The defendants moved to have the order certified for interlocutory appeal and the district court obliged.  The Fifth Circuit granted the defendants’ requests for review to consider IOC’s argument that Hamm’s claim should be dismissed or, alternatively, it should be granted summary judgment, because Hamm’s claim was time-barred by Louisiana’s one-year statute of limitations.  Both defendants also argued alternatively that they were entitled to a jury trial.

IOC took the position that Louisiana substantive law applied because OCSLA adopts the law of the adjacent state.  Hamm conceded this would be the case if OCSLA applied but argued federal maritime law, not OCSLA, applied.  Under federal maritime law, Hamm had three years rather than one year to file his suit.

The court explained the three-part test to be applied in determining whether the law of the adjacent state governs as “surrogate federal law.”  First, the controversy must arise on a situs governed by OCSLA.  This includes the subsoil, seabed, or artificial structure permanently or temporarily attached thereto.  Second, federal maritime law must not apply of its own force.  Finally, the state law must be consistent with federal law.

The court focused on the second prong of the test and concluded that federal maritime law applied of its own force.  This determination turned on the allegations of Hamm’s complaint.  Indeed, the test to determine the existence of a maritime tort is the same as that applied to determine admiralty jurisdiction.  This is the familiar test established in Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527 (1995).  The tort must have occurred on navigable water (or create a land-based injury caused by a vessel on navigable water), it must have a potentially disruptive effect on maritime commerce, and the activity giving rise to the injury must have a substantial relationship to traditional maritime activity.

The court noted that the location aspect of this test was satisfied.  Hamm was injured on the deck of a vessel on navigable waters.  The court also concluded that the incident was potentially disruptive to maritime commerce.  Grubart advised that the type of incident should be characterized at “an intermediate level of possible generality.”  Here, the cause of the injury was an accident during the loading and unloading of cargo and equipment to and from a vessel by crane.  The court reasoned that this type of incident could not only injure seamen but could damage vessels and delay shipment of goods.  The court also found that the general activity involved was substantially related to traditional maritime activity.

Because federal maritime law applied of its own force, Louisiana law could not apply as surrogate federal law under OCSLA.  Therefore, Hamm’s claim was timely under the applicable three-year statute of limitations.

With that determination made, the court turned to IOC’s alternative argument that even if maritime law did govern, it was entitled to a jury trial under the Seventh Amendment.  Although it is well established that there is no right to a jury trial in admiralty suits, IOC argued that this was not an admiralty or maritime suit.  Rather, IOC argued, this was an OCSLA suit in which maritime law applied by virtue of OCSLA’s choice of law provision.  The court was not convinced by this argument, noting that OCSLA was not meant to displace general maritime causes of action any time a court had OCSLA jurisdiction.  Further, the court reasoned that even if there was admiralty jurisdiction and OCSLA jurisdiction, IOC still had no right to a jury trial in light of Hamm’s invocation of Rule 9(h), which provides that where a claim is within a court’s admiralty jurisdiction and also within the court’s subject matter jurisdiction on some other ground, a pleader may designate the claim as admiralty or maritime for purposed of Rule 38(e) which allows for bench trials in maritime cases.

Hamm v. Island Operating Co., Inc., 2011 WL 5570644 (5th Cir. 11/16/11).

In August 2004, twenty-seven thousand gallons of heavy fuel oil spilled into the Neches River in East Texas when a barge and tug collided with a large tanker ship, rupturing the tanker’s hull and adjacent fuel tank.  The tug and barge, owned by Buffalo Marine Services, Inc. (“Buffalo Marine”), attempted to dock alongside the TORM MARY to deliver fuel ordered by the tanker interests (“Torm”).  Buffalo Marine, Torm and their insurers cleaned up the spill at a cost of $10.1 million.

As the vessel that spilled the oil, the TORM MARY was the responsible party under the Oil Pollution Act of 1990 (“OPA”).  Under OPA, a responsible party is strictly liable for removal costs and damages.  Liability is capped by statute based on the gross tonnage of the responsible party’s vessel.  In the event that cleanup costs exceed the statutory cap, the responsible party can make a claim for reimbursement from the Oil Spill Liability Trust Fund (“Fund”).

A responsible party may escape strict liability under OPA if it can satisfy the requirements of the third-party liability defense provided in 33 U.S.C. § 2703(a)(3).  The responsible party must establish that the oil spill was caused solely by an act or omission of a third party, “other than a third party whose act or omission occurs in connection with any contractual relationship with the responsible party.”

In March 2007, Buffalo Marine, Torm and their insurers jointly sought reimbursement from the Fund.  The claim submitted to the National Pollution Funds Center (“NPFC”) also sought to declare that Buffalo Marine was the sole third party cause of the spill, thereby exonerating Torm and substituting Buffalo Marine as the responsible party.  Pursuant to OPA, Buffalo Marine’s liability would be capped at $2 million, the approximate value of the barge, an amount that was significantly lower than the potential $36 million liability cap for the large tanker TORM MARY.

The NPFC denied the claim on the ground that it was not shown that Buffalo Marine’s acts were not in connection with any contractual relationship with the responsible party.  After a motion for reconsideration was denied, Buffalo Marine and its insurers asked a federal district court to review the NPFC’s decision.  On cross-motions for summary judgment, the district court ruled in favor of the government and Buffalo Marine and its insurers appealed.

The dispute between the parties centered on the interpretation of the phrase “any contractual relationship” in 33 U.S.C. § 2703(a)(3).  Because there were four parties involved—(1) Torm, the fuel purchaser; (2) the seller of the fuel; (3) the broker that worked with the buyer and the seller; and (4) Buffalo Marine, the delivery agent hired by the seller—Buffalo Marine argued that no contractual relationship existed between Buffalo Marine and Torm.  The government gave a much broader construction to the statute, arguing that Torm and Buffalo Marine had, at a minimum, an indirect contractual relationship and the spill was caused by Buffalo Marine’s actions taken in connection with that relationship.

On appeal, the Fifth Circuit had to determine (1) whether the NPFC interpretation of § 2703(a)(3) was entitled to Chevron deference and (2) whether the NPFC’s determination was arbitrary, capricious, not in accordance with the law, or unsupported by substantial evidence.

In Chevron USA v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the United States Supreme Court utilized a two-step analytical framework for determining whether an agency’s interpretation of a statute should be given deference.  If Congress has addressed the precise issue, a court must give effect to Congress’ unambiguous intent, but if the statute is silent or ambiguous, a court must defer to an agency’s interpretation as long as that interpretation is based on a permissible construction of the statute.

The court first considered whether the NPFC interpretation of § 2703(a)(3) deserved deference and found that (1) Congress had not directly addressed the issue in the statute and that (2) the NPFC interpretation of “in connection with any contractual relationship with the responsible party” was based on a permissible construction.

The court noted that Congress could have simply used the phrase “in connection with a contract” rather than “in connection with any contractual relationship” but it chose not to do so.  The court cited a dictionary that defined “contractual” as “of, relating to, or constituting a contract.”  It reasoned that while some contractual relationships are the contracts themselves, there are contractual relationships that merely relate to contracts.  The court also observed that if the word “any” in the statute were given its ordinary meaning, the phrase “any contractual relationship” must necessarily include all varieties of contractual relationships.

The court found further support for its decision in the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), another federal pollution statute with a similar third party defense to liability.  It explained that CERCLA’s third party defense does not apply where the third party’s act or omission is “in connection with a contractual relationship, existing directly or indirectly, with the defendant.”  The court found the similarity of these provisions significant in light of the “common purposes and shared history” of the statutes.

The court was also guided by OPA’s legislative history.  The version of OPA that originally passed the House of Representatives used the phrase “a contractual relationship” while the Senate version adopted the language from CERCLA’s parallel provision.  Although that language was not adopted verbatim, the court quoted the conference report’s explanation of the final language that ultimately appeared in the statute and reasoned that the adoption of CERCLA’s language, or what the conference viewed to be its functional equivalent, supported the NPFC’s interpretation.

The court reasoned that to require a direct contractual relationship to defeat a defense of third party liability would cause the exception to swallow the rule.  Indeed, the interpretation urged by Buffalo Marine would allow companies to avoid liability by simply adding more links to the contractual chain, a result that would run counter to OPA’s policy of strict liability.

Having concluded that the NPFC interpretation was entitled to Chevron deference, the court went on to find that the agency’s decision should be upheld because it was supported by substantial evidence and was not arbitrary, capricious, or otherwise not in accordance with law.

Buffalo Marine Services, Inc., et al. v. United States of America, — F.3d —-, 2011 WL 5865225 (5th Cir. 2011).

As the Internet continues to play an increasingly important role in commerce, courts have begun to deal with relatively new considerations arising out of contracts formed in whole or in part online.  The United States Fifth Circuit Court of Appeals recently dealt with some of these new considerations in One Beacon Insurance Co. v. Crowley Marine Serv., Inc., 2011 WL 3195292 (5th Cir. 2011).

This case arose out of a dispute over the terms of a ship repair contract and maritime insurance policy.  Crowley Marine Services, Inc. (“Crowley”) hired Tubal-Cain Marine Services, Inc. (“Tubal-Cain”) to perform ship repair work on one of its barges.  Tubal-Cain hired a subcontractor to perform lighting and electrical work.  During repairs to the barge, an employee of the subcontractor was severely injured by an electrical shock and resulting fall.  The injured employee initiated an action in Texas state court alleging that Crowley and Tubal-Cain were negligent.  This prompted Crowley to formally demand defense and indemnity from Tubal-Cain purportedly arising out the ship repair contract between them.  Crowley also sought defense and coverage from One Beacon Insurance Company (“One Beacon”) as an additional insured under Tubal-Cain’s Maritime Comprehensive Liability Policy.

In response to Crowley’s actions, One Beacon denied coverage and filed a declaratory judgment action seeking a ruling that Crowley was not entitled to coverage as an additional insured.  One Beacon alleged that Tubal-Cain never requested that Crowley be added to the policy and did not otherwise qualify for coverage.  Crowley filed a third-party complaint against Tubal-Cain in the declaratory judgment action, alleging that terms and conditions incorporated into a repair service order issued in connection with the repair work required Tubal-Cain to procure certain insurance policies that named Crowley as an additional insured.

The district court, trying the case on written submission, ruled for Crowley on its contractual defense and indemnity claim against Tubal-Cain and on its claim that  Tubal-Cain failed to perform is obligation under their agreement to procure the required insurance coverage.  The court also held that Crowley did not qualify as an additional insured under the policy and granted One Beacon’s declaratory judgment claim.  Tubal-Cain and Crowley cross-appealed the district court’s judgment.  While it was undisputed that a ship repair agreement existed between the parties, there was a dispute as to whether a written agreement existed requiring Tubal-Cain to defend, indemnify and procure insurance for Crowley.

Executives and management for the two companies met in March 2007 to discuss the necessary barge repairs.  The companies had previously entered into similar agreements for minor repairs on eight prior occasions and contracted an additional fifteen times following the disputed agreement.  Each time, Crowley issued a repair service order (“RSO”) to Tubal-Cain outlining the scope of repairs.  The RSOs did not include pricing terms and were not signed by the parties.  The RSOs all contained a prominently displayed notice that they were issued in accordance with the purchase order terms and conditions on Crowley’s website unless the parties agreed otherwise in writing.  The terms and conditions, which were displayed in four-point font on a subpage of the website, required contractors to defend and indemnify Crowley for injury or damage even if alleged to be caused by the sole active negligence of Crowley.  The terms and conditions also included the provision requiring contractors to purchase certain policies of insurance and name Crowley as an additional insured.  The terms and conditions were never discussed and no hard copy was ever provided to Tubal-Cain.

On appeal, Tubal-Cain argued that an oral agreement was reached between the parties and the RSO merely confirmed that agreement.  Since defense, indemnity, and insurance were never made a part of the oral agreement, the RSO could not confirm more than what was already agreed to orally.  Further, the RSO was sent after Tubal-Cain had already commenced work and they did not have an opportunity to review and assent to it before beginning performance on the contract.

The Fifth Circuit noted that in construing maritime contracts, it has held that where parties share a history of business dealings and standardized provisions have become a part of those dealings, such familiar provisions within purchase order issued after performance are binding where they are accepted without objection.  Responding to Tubal-Cain’s argument that the relatively brief business dealings between the parties could not have established a course of dealing, the Fifth Circuit noted that courts have found a course of dealing between parties based on receipt of as few as three or four bills of lading.  Accordingly, the court concluded that the district court did not err in holding that the parties had established a course of dealing from which the court could infer that Crowley’s terms and conditions were implied in every contract.

Tubal-Cain also disputed the lower court’s finding that the RSO was sufficient to put Tubal-Cain on notice of the insurance and indemnity terms.  Specifically with respect to the indemnity, Tubal-Cain argued that indemnity provisions which purport to indemnify a party for its own negligence must be conspicuous to be enforceable.  The court explained that under general contract principles, where a contract expressly refers to and incorporates another instrument in specific terms clearly showing an intent to incorporate the instrument, both instruments are to be construed together.  The court held that maritime contracts may validly incorporate by reference terms from a website in the same manner that they may incorporate terms from a paper document.  Although Crowley could have been clearer in providing directions to the location of the terms and conditions, notice of the terms was reasonable under the facts of the case.

The Fifth Circuit also went on to affirm the district court’s additional holdings that the indemnity provision was sufficiently clear and conspicuous as to be enforceable and that the RSO terms and conditions supplemented the oral agreement.

One Beacon Ins. Co. v. Crowley Marine Services, Inc., — F.3d —-, 2011 WL 3195292 (5th Cir. July 28, 2011).

In her recent opinion in Richardson v. Kerr-McGee Oil & Gas Corp., et al., District Judge Helen Berrigan addressed whether the Fifth Circuit’s decision in Fields v. Pool Offshore, Inc., 182 F.2d 353 (5th Cir. 1999) was still good law in light of the United States Supreme Court’s decision in Stewart v. Dutra Construction Co., 543 U.S. 481 (2005).

The question arose in the context of a Jones Act personal injury claim.  On February 20, 2006, Riley Richardson fell while performing maintenance work a Nansen Spar, a buoyant petroleum extraction platform positioned 150 miles south of Houston, Texas.  The spar was moored to the sea floor by 230 feet of cables and pilings.  Tightening and slackening of these cables allowed the spar to be maneuvered within a 250-foot range.  Richardson sought to recovery for his injuries under the Jones Act.

The defendants moved for summary judgment, arguing that the Nansen Spar was not a “vessel” for purposes of the Jones Act.  The court noted that the Fifth Circuit has clearly stated that “spars are not vessels but rather are work-platforms.”  Fields, 182 F.3d at 358.  They are not vessels because (1) they are designed to work in a fixed area for the foreseeable future; (2) the way they are secured to the sea floor renders any movement outside the 250-foot range difficult and expensive; and (3) when moored in place, they have limited mobility that is consistent with work platform status.

Notwithstanding this guidance, Richardson argued that the Supreme Court’s decision in Stewart v. Dutra Construction Co. overturned Fields.  In Stewart, the Court held that a dredge in the Boston Harbor was a vessel even though, at the time the plaintiff was injured, it could only move itself by manipulating its anchors and tow cables.  The Court reasoned that the barge was a vessel because it “was not only capable of being used to transport equipment and workers over water—it was used to transport those things.”  543 U.S. at 495. 

Judge Berrigan noted that although the Fifth Circuit recognized Stewart’s broadening of the class of unconventional watercraft that meet the definition of a vessel, the Fifth Circuit had never directly addressed Stewart’s impact of Fields.  Judge Berrigan ultimately concluded that Fields was consistent with Stewart and remained good law.  The spar at issue had been permanently moored to the ocean floor and did not satisfy Stewart’s requirement that it be capable of maritime transport in a meaningful way.  Based on that determination, the defendants’ motions for summary judgment were granted and Richardson’s Jones Act claims were dismissed.

Richardson v. Kerr-McGee Oil & Gas Corp., et al., 2011 WL 2565315 (E.D. La. June 28, 2011).

Black Stallion Enterprises filed suit in the Eastern District of Louisiana to recover for damage to its barge, the MAINE, alleging that Bay & Ocean Marine Towing, LLC negligently towed it across the Gulf of Mexico.  OneBeacon Insurance Company, Bay & Marine’s hull insurer, filed a third-party complaint against International Registry of Shipping (“IROS”), the classification society that allegedly issued a load-line certificate and approved the barge to undertake a voyage to the Dominican Republic even though the barge may have been unseaworthy.  IROS filed a motion for summary judgment, arguing that it did not breach any duty it owed to the defendants.

The district court began with a discussion of the Fifth Circuit’s careful limitation of negligent misrepresentation claims against classification societies.  In order to make out of claim for negligent misrepresentation, also known as negligent supply of information, it must be shown: (1) that the plaintiff requested information from the defendant for its guidance; (2) that the defendant failed to use reasonable care in so doing; (3) that the defendant knew the plaintiff would rely on the information for a particular purpose; and (4) that the plaintiff suffered an economic loss in relying on the information.

OneBeacon believed that these elements were satisfied.  It alleged that IROS was hired to conduct a load-line certification survey which it “necessarily include[d]” assessing the barge’s seaworthiness.  OneBeacon further alleged that IROS did not adequately inspect the bottom plating of the hull, that the owner and tower of the barge relied on the certificate in undertaking the voyage, and that both suffered damages as a result.

The court determined that there was no evidence that IROS knew Bay & Ocean would rely on the certification for any reason beyond securing authorization to leave U.S. waters.  Indeed, the form that Bay & Ocean completed in procuring the certification included entries for seaworthiness and bottom surveys, neither of which Bay & Ocean elected to purchase.  The survey report only addressed the condition of the hull above the waterline and recommended a drydock survey of the entire hull.

The court distinguished cases wherein the party arranging the survey sought specific information for a particular purpose.  For example, the court found the facts of the instant case distinguishable from a situation where a shipowner requested a certification that its ship’s holds were sufficiently clean to receive a delicate cargo.  See Int’l Ore & Fertilizer v. SGS Control Services, 743 F.Supp. 250 (S.D.N.Y. 1990).

Abiding by the Fifth Circuit’s careful limitation on negligent misrepresentation claims against classification societies, the court granted IROS’ motion for summary judgment and dismissed OneBeacon’s claims against it.

Black Stallion Enterprises v. Bay & Ocean Marine Towing LLC, 2010 WL 1333272 (E.D. La. 2011).

In Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58 (2d Cir. 2009), the Second Circuit Court of Appeals held that electronic fund transfers (EFTs) cannot  be properly attached under Rule B of the Supplemental Rules for Admiralty or Maritime Claims.  This holding was subsequently deemed to apply retroactively to all cases open on direct review.  Hawknet, Ltd. v. Overseas Shipping Agencies, 590 F.3d 87 (2d. Cir. 2009).  In Eitzen Bulk A/S v. Ashapura Minechem, Ltd., et al., 632 F.3d 53 (2d Cir. 2011), on appeal from the Southern District of New York, the Second Circuit added another chapter to its post-Jaldhi jurisprudence.

Unconcerned with the underlying dispute, the court provided a concise background of the attachment of the EFTs: In September 2008, prior to Jaldhi, the plaintiff attached EFTs of which defendant was the originator or beneficiary.  By early 2009, the plaintiff had attached over $1.7 million which the garnishee banks transferred into suspense accounts.  The plaintiff ultimately obtained an arbitration award in excess of $36 million and moved to confirm the award in the Southern District of New York.  In July 2009, still prior to the decision in Jaldhi, the district court entered judgment on the full amount and ordered the banks to turn over the funds.  Collection efforts stalled when other creditors asserted claims to the funds.  Those claims were all either voluntarily withdrawn or resolved against the creditors, leaving the plaintiff’s attachment in effect.

Shortly after the decision was rendered in Jaldhi, the defendant moved the district court to vacate the attachment.  Although the court noted it presently lacked jurisdiction to attach the funds under the Second Circuit’s recent decision, the funds had already been attached and the court concluded that it still had jurisdiction to order their disposition.  The district court denied the motion to vacate and upheld the attachment as an exercise of its equity powers.

The Second Circuit reversed, holding that the attachment was invalid under Jaldhi.  Although liability was no longer open on direct review, the court explained that the attached funds were retained by the banks solely on the basis of a Rule B attachment and that retention was still open for review.  Specifically, Rule E(4)(f) entitles anyone having an interest in attached property to a prompt hearing to show why the attachment should not be vacated. The fact that liability was decided was irrelevant.  The Second Circuit also disapproved of the district court’s reliance on equity, reaffirming an earlier decision specifically prohibiting equitable considerations in addressing motions to vacate pre-Jaldhi attachment orders.  The lower court’s order was vacated and the case remanded with instructions to release the attached funds.

Eitzen Bulk A/S v. Ashapura Minechem, Ltd., et al., 632 F.3d 53 (2d Cir. 2011).

Earlier this month, the Fifth Circuit affirmed a Texas  district court’s finding of Jones Act liability in a benzene-exposure case.  The plaintiff, a former helper, rigger, and leadman for Brown & Root Marine Operators, alleged exposure to benzene  over several years while working aboard Brown & Root’s barges.  The district court entered a judgment for the plaintiff and defendant appealed.  One of the issues on appeal was whether the district court erred in applying the “featherweight” causation standard to the Jones Act claim rather than a “proximate” causation standard.  The court explained that Fifth Circuit precedent employed a standard of “producing” rather than “proximate” cause and the burden of proof is “featherweight”, i.e. a showing of even the slightest cause.

The defendant argued that Justice Souter’s concurrence in Norfolk Southern Railway v. Sorrell, 549 U.S. 158 (2007), rejected the “producing cause” standard in favor of “proximate cause.”  After oral argument, the defendant filed a letter with the court advising of the Supreme Court’s recent grant of certiorari on this issue in McBride v. CSX Transp., Inc. (7th Cir. 2010).  Noting that Souter’s concurrence may suggest where the law will go in the future, the Fifth Circuit was bound to follow its clear precedent even where the Supreme Court has granted certiorari on an issue. 

Clark v. Kellogg Brown & Root, L.L.C., 2011 WL 386787 (5th Cir. 2011) (unpublished).

Note: The Supreme Court granted certiorari in McBride v. CSX Transp., Inc., on November 29, 2010.  Oral arguments are scheduled for March 28, 2011.  The question presented is “[w]hether the Federal Employers’ Liability act, 45 U.S.C. §§ 51-60, requires proof of proximate causation.”