A Case of Sexual Harassment?

Plaintiff, Valerie Russo, sued her employer, APL Marine Services, Ltd. and Captain James Londagin for sexual harassment, sexual discrimination, retaliation, negligence and unseaworthiness after her employment was terminated. The case arose out of a failed romantic relationship between Russo and Capt. Londagin. The two met in 2004 when Russo was serving as chief cook aboard the M/V APL KOREA. Over the next eight years, Russo made eleven voyages aboard the APL KOREA. In 2011, while serving together, they began a consensual sexual relationship. On completion of the voyage, their relationship continued on land. In late 2012 Russo signed up to serve aboard the APL KOREA to be with Capt. Londagin for its December 4, 2012 voyage to Japan. At the beginning of the voyage, the romance continued. About ten days into the voyage, however, Russo ended the relationship over a dispute. Russo alleged that after she ended her relationship, he engaged in harassing behavior towards her. She alleged that he slapped her on her buttocks on at least one occasion, requested they have “make-up sex” on ten occasions, banged on her door at night on several occasions, lay on the deck outside her cabin, criticized her work performance, and denied her overtime pay.

On December 21, 2012, Capt. Londagin terminated Russo’s employment and she was escorted off the ship at Yokohama. Capt. Londagin alleged she threw a Sharpie pen at him. That same day, Russo received a letter from APL advising she was terminated “for exhibiting aggressive behavior towards a senior officer.”

In March 2014, she filed suit. Thereafter defendants moved for dismissal of all claims.

First, the Court dismissed all of Russo’s claims under California law as the acts complained of occurred in international waters. This included her claims for sexual harassment, sexual discrimination, retaliation, and wrongful termination. The Court recognized that state statutes are ordinarily not given extraterritorial effect. The Court found that application of the California laws hinged on the “situs of both employment and the material elements of the cause of action.” Residency, place of the employment contract, and place of termination are not themselves sufficient to overcome the presumption that state law will not apply when the tortious conduct and situs of employment are outside the state. Here plaintiff spent the vast majority of her time of employment on vessels overseas, as did the conduct about which she complained.

As for her unseaworthiness claim on the grounds that Capt. Londagin was unfit for duty, the Court stated that the Captain’s temperament and abilities “must be within the usual and customary standards of the calling.” The question was whether the behavior was “within the usual and customary standards of the calling” or whether it was “a case of a seaman with a wicked disposition, a propensity to evil conduct, a savage and vicious nature.” The Court dismissed the unseaworthiness claim noting that Capt. Londagin slapped her on the buttocks on only one occasion. Citing prior holdings, the Court found that “even unwelcome and harassing physical contact is insufficient to support a claim for unseaworthiness absent ‘a savage and vicious attack’.” A slap on the buttocks did not rise to that level.

The Court did keep intact Russo’s claim for negligent infliction of emotional distress under the Jones Act. The maritime law provides that negligent infliction of emotional distress occurs when a defendant subjects a plaintiff to emotional harm within the “zone of danger” created by the conduct of the defendant.

The Court found that the “zone of danger” test allows recovery for those plaintiffs who sustain a physical impact as a result of defendant’s conduct or who are placed in an immediate risk of physical harm by that conduct. Russo did not allege that she suffered physical impact, but the Court found that there were material questions of fact as to whether she feared an immediate risk of physical harm by the alleged sexual harassment aboard the ship. Russo provided evidence that she feared for her safety so much that she kept a chair behind her stateroom door so that he could not enter. This allegation was sufficient to support her claim that she feared the “immediate risk of physical harm.” Thus, her claim for negligent infliction of emotional distress was preserved for trial. Russo v. APL Marine Services, Ltd., 2015 WL 5626638, U.S. District Court, C.D. Calif.

Failure to Conduct JSA for Routine Task is Not a Breach of Duty

On August 5, 2015, the United States Fifth Circuit Court of Appeals issued its opinion in Glaze v. Higman Barge Lines Inc.  The court was asked to review the grant of summary judgment in favor of Higman on the Plaintiff’s Jones Act, unseaworthiness, and maintenance and cure claims.  The Plaintiff, who worked for Higman as a relief captain for approximately four years, alleged injury as a result of maintenance he performed on one of Higman’s vessels.  He claimed that he was instructed to perform a task in the absence of a job safety analysis and that these unsafe work methods rendered the vessel unseaworthy.  The district court granted summary judgment on all Plaintiffs’ claims and he appealed.


On appeal, The Fifth Circuit first analyzed the Plaintiff’s Jones Act claim and determined that is was without merit.  The Court ruled that the Captain’s alleged failure to conduct a job safety analysis did not establish a violation of the standard of care.  Further, although a company safety manual can inform what constitutes ordinary prudence, it does not itself create a legal duty.  The task that the Plaintiff was performing—grinding and stripping rust with a needle gun—was a routine task and the Fifth Circuit had previously held that failure to perform a job safety analysis on a routine task is not breach of duty.  The Plaintiff was an experienced seamen of forty years and admittedly knew how to use a needle gun and failed to controvert testimony that he himself trained at least one other crew member on how to use a needle gun to chip rust.


The Fifth Circuit also affirmed the grant of summary judgment as to Plaintiff’s unseaworthiness claim.  The basis of Plaintiff’s claim for unseaworthiness was the failure of the Captain to perform a job safety analysis, that the ship did not have safe housekeeping measures, and that the plaintiff was required to perform this task only one month before the vessel entered dry dock for maintenance.  The Fifth Circuit held that a Captain’s failure to conduct a job safety analysis, even if negligent, did not give rise to an unseaworthiness claim.  The Court further found that there was no support for the Plaintiff’s claim of unsafe work methods.  Plaintiff presented no evidence that the needle gun was working improperly or that its use or the vessel was unsafe.  Also, the fact that the vessel was set to undergo routine maintenance in dry dock failed to demonstrate that the vessel or any appurtenance thereto was unfit for its intended purpose or that the crew was inadequate, understaffed, or ill trained.


Addressing the Plaintiff’s maintenance and cure claim, the Court found that there was no evidence that the Plaintiff was injured while working on the vessel except for his lawsuit.  Further the Plaintiff did not report an injury to his employer until the suit was filed and he previously told his physicians from who he had sought treatment for his pain that he had not been injured.  The vessel logs did not reflect that any chipping work was done on the day the Plaintiff claimed that he was injured.  The Fifth Circuit affirmed the district court’s grant of summary judgment in favor of the defendant employer, Higman.

Glaze v. Higman Barge Lines, Inc.

“I’m on a boat!”- Well, Then Maybe You’re a Seaman

The law has long held that seamen are afforded special protections. As early as 1823, the law recognized the perils of this particular profession: vulnerability to sickness, exposure to the harsh world of the seven seas, and lack of wealth and social standing. Harden v. Gordon, et. al., 11 F. Cas. 480 (D. Maine 1823). Congress recognized the need for this heightened protection and passed the Jones Ace in 1920. The passage of the Jones Act thereafter allowed an injured seaman to pursue a negligence action against his employer. However, Congress forgot to tell us who qualified as a seaman.

Cue the numerous decisions attempting to carve out the definition of a seaman for purposes of the Jones Act. The Supreme Court recognized it needed to step in to resolve the ongoing debates created over an injured worker’s status. In Chandris, Inc. v. Latis, 515 U.S. 347 (1995), the Supreme Court held that a seaman was a worker who contributes to the function of the vessel or the accomplishment of its mission, and must have a substantial connection to the vessel. The Court looked to Barret v. Chevron U.S.A., Inc., 781 F2d 1067 to determine that a substantial connection means spending more than 30% of employment aboard a vessel. In Alexander v. Express Energy Servs. Operating, L.P., the Fifth Circuit provided additional guidance on which duties have a substantial connection to a vessel. In sum, the Court determined that in order to qualify as a seaman, the employment must be spent aboard the vessel, not near it. The plaintiff in Alexander was a lead hand/operator in the plug and abandonment department, which plugged decommissioned oil wells on various platforms in the Gulf of Mexico. The Court determined that plaintiff did not sufficiently establish that he spent more than 30% of his time working aboard a vessel, as he testified that he worked alongside vessels the majority of the time. Accordingly, plaintiff was not considered a seaman and could not recover the remedies afforded under the Jones Act.

While this decision serves to provide additional guidelines as to seaman status, the legal determination will ultimately be on a case-by-case basis.

Alexander v. Express Energy Servs. Operating, L.P.

Future Lost Wages Based on Statistical Work-Life Expectancy

A rigger on a crane barge was injured when he fell from a makeshift scaffolding.  He sued the vessel owner for negligence under the Jones Act, as well as his employer for cure (the cost of a back surgery) under general maritime law.  After a bench trial in the U.S. District Court for the Eastern District of Louisiana, the Court entered a judgment against the vessel owner and the employer.  Both appealed to the U.S. Fifth Circuit.

The vessel owner alleged several errors on appeal, including the calculation of future lost wages.  The Court held that future lost wages must be based upon a seaman’s statistical average work-life expectancy unless there was evidence that a particular person, by virtue of health or occupation, was likely to live and work shorter or longer than average.  In assigning future lost wages, the District Court simply adopted an age somewhere in the middle of the high and low work-life expectancies presented by the two expert economists.  Because there was no evidence that the plaintiff might live and work longer than average, the Fifth Circuit applied the statistical retirement age presented by the plaintiff’s expert, thus reducing future lost wages by nearly $100,000.00.

The Court also affirmed the employer’s responsibility for payment of the lumbar laminectomy and fusion surgery.  The employer’s physician contested the medical necessity of the surgery, but the Court found the procedure relieved the plaintiff’s pain and was therefore curative in nature and required under the employer’s maintenance and cure obligations.

Barto v. Shore Construction