Articles by Will Bland, IV

Fifth Circuit: Who “Invited” Plaintiff on the Vessel?

The U.S. Fifth Circuit Court of Appeals recently addressed competing indemnification provisions in a maritime contract.  A pipeline operator, W&T Offshore, hired a diving contractor, Triton Diving Services, for an offshore pipeline decommissioning project.  Triton provided their own vessel and personnel, but operated under W&T’s instruction pursuant to a Master Service Contract.  W&T also hired a safety contractor, Tiger Safety, to assist with filtration of pipeline fluids.  An employee of Tiger was working on Triton’s vessel under supervision of W&T when he fell and injured himself. 

The Tiger employee sued both W&T and Triton in U.S. District Court.  W&T and Triton filed cross-claims against one another seeking defense and indemnity based on their Master Service Contract.  W&T had agreed to indemnify Triton for personal injury claims brought by members of the “W&T Group”.  Likewise Triton had agreed to indemnify W&T for personal injury claims brought by members of the “contractor group”.  The contract defined the “contractor group” to include Triton’s “invitees on the work sites” and “W&T Group” included W&T’s “invitees on the work sites”.  The indemnification question therefore boiled down to whether the Tiger employee was an “invitee” of W&T or Triton.  At the time of the accident, the Tiger employee was working on Triton’s vessel under the direction of Triton personnel, but he was hired by W&T and was being monitored by a W&T employee also on the vessel. 

The District Court sided with Triton, finding that the plaintiff was W&T’s invitee and W&T appealed to the Fifth Circuit.  On appeal, the Court confirmed that the Master Service Contract was a maritime contract and turned to Fifth Circuit precedent that defined “invitee” as “a person who goes onto premises with the expressed or implied invitation of the occupant, on business of the occupant or for their mutual advantage”.  The Court concluded that even though the plaintiff was injured on Triton’s vessel, he was a W&T invitee because he was hired by W&T and was working under the supervision of W&T.  The Fifth Circuit affirmed the District Court’s finding that W&T owed Triton defense and indemnity. 

Grogan v. W&T Offshore   

Sloppy Pleading of Injured Worker Leads to Dismissal of Lawsuit

Plaintiff was working in the hold of a refrigerated cargo vessel that was berthed at the Port of Gloucester, NJ.  He injured his leg when it was crushed under machinery.  He filed suit in U.S. District Court in New Jersey and named eight companies as defendants.  The Complaint did not allege the specific roles of each defendant and instead generally plead that each company “owned, leased, operated, managed, possessed and/or controlled” the vessel.  Plaintiff lodged similar allegations regarding the defendants’ ownership and operation of the port.  Plaintiff cited three causes of action including negligence for violation of twenty-four duties, Section 905(b) of the LHWCA, and loss of consortium on behalf of Plaintiff’s spouse.

 

One Defendant filed a 12(b)(6) Motion to Dismiss, arguing the Complaint failed to provide notice of which particular claims were being lodged against it.  The Complaint merely lumped all defendants together and accused them of the same general negligent conduct.  The Defendant also argued the Complaint failed to include any factual basis that it owned the vessel, as required for a Section 905(b) claim.

 

After thoroughly reviewing the Complaint, the Court found that it failed to separate out the liability of each defendant.  The Court noted that if the Complaint had merely described the nature of each defendant company and what they were responsible for, it might have been possible to at least infer a theory of liability.  Instead,  Plaintiff had merely lumped all defendants together and asserted general allegations against broadly against the group.  The Court granted Defendant’s motion and dismissed the Complaint without prejudice.

 

Sheeran v. Blyth Shipholding

Alleged Seaman’s Claims Dismissed for Lack of Negligence

Plaintiff was injured when he allegedly fell from a defective rope ladder while working on a barge.  He filed a lawsuit against his employer, Weber Marine, alleging negligence under the Jones Act, unseaworthiness of the barge, and seeking maintenance and cure.  In the alternative, he sought damages under Section 905(b) of the LHWCA.  Weber Marine filed two Motions for Summary Judgment.  The first motion argued that plaintiff would be unable to support his claims for Jones Act negligence, unseaworthiness, or 905(b) vessel negligence at trial.  In support of the motion, Weber Marine asserted that the ladder was in good working order, the accident was unwitnessed, and that it did not own the barge in question.  In its second motion, Weber Marine argued the plaintiff was not a Jones Act seaman and was instead a maritime worker covered by the LHWCA.

 

The district court judge for the U.S. District Court for the Middle District of Louisiana granted both of Weber Marine’s motions.  In holding plaintiff was not a Jones Act seaman, the Court determined his claims for Jones Act negligence, unseaworthiness, and maintenance and cure were moot.  Furthermore, the Court recognized that while a maritime worker has a tort-based cause of action against his employer by virtue of Section 905(b), the plaintiff had failed to raise any facts supporting his claim for negligence.  The Court dismissed the plaintiff’s claims with prejudice and instructed him to pursue any claim he may have under the LHWCA before the U.S. Department of Labor.

 

Bourgeois v. Weber Marine

5th Circuit Addresses LHWCA’s Last Maritime Employer Doctrine

The U.S. Fifth Circuit Court of Appeals recently addressed the last maritime employer rule under the Longshore and Harbor Workers’ Compensation Act (LHWCA).  The claimant was employed by Ramsay Scarlett & Co. at the Port of Baton Rouge from 1969 – 1991.  From 1991 – 2013, the claimant worked for a second employer, Westway, also at the Port of Baton Rouge.  In 2011, he was diagnosed with asbestosis, which he alleged was caused by exposure to asbestos brake pads and clutches during his employment with Ramsay Scarlett.  The claimant filed a claim for medical benefits against Ramsay Scarlett under the LWHCA.

 

The Administrative Law Judge determined that the claimant established a prima facie claim, which Ramsay Scarlett failed to rebut and that Ramsay Scarlett was the last maritime employer.  Ramsay Scarlett appealed to the Benefits Review Board, which affirmed the ALJ’s decision.

 

On appeal to the Fifth Circuit, Ramsay Scarlett argued that even if the claimant established a prima facie claim by virtue of his deposition testimony and the report of an industrial hygienist, it was not the last maritime employer.  Ramsay Scarlett argued that the claimant testified he also worked around cranes, trucks, and equipment that could have exposed him to asbestos while employed by Westway.  The Fifth Circuit held that because the claimant did not testify about asbestos exposure at Westway and Ramsay Scarlett failed to provide any contradictory evidence, there was not “substantial evidence” sufficient to rebut the claimant’s claim and establish Westway as the last responsible employer.  The Fifth Circuit affirmed the ALJ’s finding that Ramsay Scarlett was the last maritime employer and was responsible for all medical benefits related to the disease.

 

Ramsay Scarlett & Co. v. Director, OWCP