U.S. Fifth Circuit reverses district court’s grant of summary judgment, finding that ROV Technician was not a seaman as a matter of law

The United States Court of Appeals for the Fifth Circuit held that a district court erred in finding that a plaintiff, who was a technician who navigated and controlled remotely operated vehicles (“ROVs”) for offshore applications, qualified as a “seaman” as a matter of law. ROVs are unoccupied mechanical devices used to service and repair offshore, underwater drilling rigs. Technicians navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. Technicians work inside a windowless shipping container converted into an ROV command center located on the support vessel. In the context of his claim under the Fair Labor Standards Act (“FLSA”) to recover unpaid wages for overtime worked during his employment, the district court granted summary judgment against the plaintiff, finding that he qualified as a seaman under the FLSA and was exempt from the Act’s overtime provisions.

 

The Fifth Circuit reversed the district court’s ruling, finding that the jurisprudence upon which the district court relied was distinguishable. It focused on the fact that ROV Technicians had a completely separate command structure than that of the tankerman considered in the Coffin case relied upon by the district court. Thus, the Fifth Circuit held that the district court erred in granting the defendant’s motion for summary judgment because it had not been established as a matter of law that the seaman exemption applied. The matter was remanded to the district court for further proceedings.

 

Halle et. Al. v. Galliano Marine Service, LLC

Federal District Court Once Again Addresses Discoverability of Surveillance

The Eastern District of Louisiana recently issued another opinion interpreting Chiasson v. Zapata Gulf Marine Corp., the benchmark Fifth Circuit case that guides the discoverability of surveillance as substantive versus impeachment evidence.  Plaintiff alleged that, while employed as a Jones Act seaman, he experienced an accident that resulted in injury to his back and other parts of his body.  In filing against his employer for Jones Act benefits and other defendants for negligence under general maritime law, Plaintiff filed an expedited motion to compel production of surveillance obtained by his Jones Act employer prior to his deposition.  Employer objected to the production of surveillance arguing that surveillance was non-discoverable impeachment evidence at the present stage of litigation.  The District Court agreed that, under Chiasson, Plaintiff was entitled to production of surveillance tapes as substantive evidence, but that Chiasson did not address the timing of disclosure.  The court agreed with Employer that the proper procedure would be to produce the surveillance evidence subsequent to Plaintiff’s deposition in order to preserve the substantive and impeachment value of the surveillance evidence.

 

Krekorian v. FMC Technologies, Inc.

Fifth Circuit Rejects Vicarious Liability Claim From Personnel Basket Injury

The U.S. Fifth Circuit Court of Appeals issued an opinion today addressing the vicarious liability of a principal contractor for its independent contractors.  The Plaintiff was employed as a crane mechanic by Gulf Crane Services and was working on an offshore platform owned and operated by Dynamic Offshore Resources, LLC.  He was injured in a personnel basket transfer from a boat to the platform.  He sued Dynamic, alleging it was vicariously liable for the negligence of its subcontractors, including the crane operator.  No Dynamic personnel were present on the platform.

 

The District Court dismissed the case on summary judgment and the Plaintiff appealed to the Fifth Circuit.  The Court noted that under Louisiana law, a principal is not liable for the activities of
an independent contractor committed in the course of performing its duties under the contract, with two exceptions: 1) the principal is liable for ultrahazardous activities contracted out to an independent contractor, and 2) the principal is liable if it has operational control over the acts of the independent contractor or authorizes unsafe practices.

 

The Court determined that a personnel basket transfer is not an ultrahazardous activity, regardless of the high wind that allegedly caused the basket to suddenly fall eight feet.  The law does not consider the specific conditions of an activity to determine whether it qualifies as ultrahazardous.  Furthermore, the Court found the Plaintiff could point to no evidence that Dynamic authorized an unsafe practice.  Instead, Plaintiff testified that he specifically requested the personnel basket transfer in high winds despite his “stop work authority”.  Dynamic in no way authorized an unsafe working condition.  Therefore the Plaintiff was unable to establish that his injury fell into either exception to the vicarious liability rule and Dynamic could not be held liable for the activities of its independent contractors.  The Fifth Circuit affirmed summary judgment in Dynamic’s favor.

 

Davis v. Dynamic Offshore Resources, LLC

Seaman’s Widow’s Claim for Punitive Damages Denied

Recently, the United States District Court for the Eastern District of Louisiana further shored up the clearly delineated avenues for recovery available to plaintiffs involved in Jones Act and personal injury suits arising under general maritime law.  In Wade v. Clemco Industries Inc., et al, No. 16502 (E.D. La. Feb. 2, 2017), the court affirmed the Fifth Circuit’s decision in Scarborough v. Clemco Industries, Inc., and denied the widow of a Jones Act seaman the recovery of punitive damages from non-employer third-parties.

 

Court documents show that the decedent, Garland Wade, worked as a sandblaster and paint sprayer on vessels owned by Coating Specialists, Inc., and performed work on permanent fixed platforms owned and/or operated by Chevron USA both in Louisiana and Federal waters.  Several years after leaving his employment as a sandblaster, the decedent died of connective tissue disease. In the case at bar, it was alleged that the decedent was not provided with a protective hood, not given instructions for the proper use of the hood he may have been given, and that he was not provided with a safe work place.

 

Plaintiff, Rose Wade, initially filed suit on grounds that her husband’s death was caused by products manufactured, marketed, designed, sold, and/or distributed by the defendants, and which contained asbestos which she alleged directly caused or aggravated her husband’s illness and death.  As a result of the defendant’s respective actions and/or inactions, Plaintiff sought $5,000,000.00 in damages for the wrongful death of her husband.

 

Defendant quickly filed motions for partial summary judgment seeking the dismissal of Plaintiff’s claims for non-pecuniary losses, under the well-established rule that Jones Act seamen and their survivors are not entitled to recover non-pecuniary damages from a non-employer third parties. (Scarborough v. Clemco Industries, Inc., 391 F.3d 660, 668 (5th Cir. 2004).)  In conjunction with their efforts, Defendants noted that the Plaintiff in the instant matter had already filed a state court suit in which the decedent had been adjudged to have been a Jones Act seaman, and therefore there could be little question that Scarborough would apply to the claims at issue before the Eastern District.  Defendants also argued that the Supreme Court’s holding in Townsend, which had previously resulted in an award of punitive damages for Employer’s arbitrary withholding of maintenance and cure, did not apply, because the Wade matter did not involve the issues of maintenance and cure.

 

In response, Plaintiff averred that her claims against the non-employer third-parties did not arise under the Jones Act or general maritime law; however, the Court disagreed with this assertion.  In so doing, the Honorable Judge Eldon Fallon found this case to be analogous to McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), cert. denied, 135 S. Ct. 2310 (2015), and noted that in that matter, as in the instant case, Plaintiff elected to bring her claim under general maritime law, and thus the parties were to be bound by the limitations on damages previously established under that body of law.  In granting the defendants’ motions in Wade, the court further solidified the foundation laid by McBride and its progeny, in wrongful death cases brought under general maritime law, which continue to limit a survivor’s recovery from employers and non-employers to pecuniary losses in cases where the Jones Act is implicated.