Jones Act Claim Dismissed on Summary Judgment

Plaintiff worked as a relief captain for Defendant. He maintained that he was injured as a result of an accident aboard Defendant’s vessel, or that Defendant was negligent or provided an unseaworthy vessel. Defendants moved for summary judgment on the grounds that Plaintiff could not establish the necessary elements of his case.

Plaintiff alleged that he was injured while chipping with a needle gun at the instruction of the vessel’s captain. Upon learning that he could not have been injured on the date he alleged because he was not working aboard Defendant’s vessel on that date, he claimed new potential dates of injury. Still, the vessel logs did not show that Plaintiff did any chipping work. Additionally, although Plaintiff testified that the vessel’s captain ordered him to do the work and a tankerman saw him performing the work, the vessel’s captain said he did not order the work and would not have ordered the work for various reasons, and the tankerman said he never saw Plaintiff doing the work in question. No injury was ever reported by Plaintiff to Defendant until the instant suit, and no injury was reported to any medical provider.

In reviewing the facts in a light most favorable to the non-moving party, the Court found that Plaintiff did not create any genuine issues of material fact regarding his claims of negligence, unseaworthiness or maintenance and cure. Based upon Plaintiff’s inconsistent testimony regarding the date of the accident, the lack of corroboration by witnesses, and Plaintiff’s failure to report any injury, the Court held that Plaintiff could not prove that he had any accident or suffered any injury while working aboard Defendant’s vessel. The Court therefore granted Defendant’s Motion for Summary Judgment.

Glaze v. Higman Barge Lines, Inc., 2014 WL 5393355 (E.D. La. 2014).

11th Circuit Denies Arguments Against Jones Act Arbitration and Removal

The Eleventh Circuit issued an unpublished Jones Act decision discussing–albeit briefly–removal and arbitration.  Plaintiff argued against removal and arbitration.  The Eleventh Circuit disagreed, saying:

Trifinov also contends that his Jones Act claim cannot, as a matter of law, be removed to federal court.  We accept that Jones Act claims are not generally subject to removal.  But that Jones Act claims may be subjected to arbitration under the [United Nations Convention on Recognition and Enforcement of Foreign Arbitral Awards] is clear.  And the Convention authorizes the removal to federal court of claims “relat[ing] to an arbitration agreement or award falling under the Convention.”

Although we have not addressed the removal issue expressly, this Court has routinely compelled arbitration of Jones Act claims that have been removed under 9 U.S.C. § 205 when they relate to an arbitration agreement under the Convention.  And the few other courts that have decided the issue have concluded that removal of Jones Act claims is proper under the Convention.  We are persuaded that Trifinov’s Jones Act claim, which is governed by the Convention, was removed properly to federal court.

Trifinov v. MSC Mediterranean Shipping Co. SA, — F.A’ppx —- (11th Cir. 10/21/14).

Trial Court Disbelieved Plaintiff, Determined He Was Not a Seaman

Last week, Louisiana’s Third Circuit published a Jones Act decision wherein it affirmed the lower court’s decision that Plaintiff failed to carry his burden of proof that he was a Jones Act seaman.  Plaintiff began working for his employer in a land-based warehouse, but he expressed interest in offshore work.  Soon thereafter, Plaintiff began working as a helper on a platform fixed to the outer continental shelf; but he ate, slept, and used the restroom facilities on a vessel called the RAM VII.  Plaintiff was injured when a Teflon pipe weighing two-and-a-half pounds struck him in the face.  Plaintiff then filed a petition for damages wherein he alleged entitlement to compensation based on his status as a seaman under the Jones Act.  The trial court disagreed.

On appeal, Louisiana’s Third Circuit discussed Chandris, and the Supreme Court’s test for seaman status.  Essentially, Plaintiff complained that the “trial court incorrectly based its finding that he failed to carry his burden to prove that he was a Jones Act seaman solely based upon how much time he physically spent on a vessel.”  The appellate court disagreed:

Our review of the record does not indicate that the trial court found [Plaintiff] was not a seaman based solely because he was not working on the RAM VII 50% of the time.  Rather, it is clear that the trial court determined that [Plaintiff] was not credible and, as such, it did not give credence to his assertion that he spent 50% of his time working on the RAM VII.  The trial court then cited testimony contrary to [Plaintiff’s] assertion that he spent 50% of his time physically on the RAM VII.

In essence, the trial court did not believe Plaintiff’s allegations that he spent 50% of his time on a vessel.  Because the Supreme Court’s Chandris test requires consideration of the amount of time a seaman is on a vessel, Plaintiff’s lack of credibility was fatal to his claim.

But that’s not all.  The appellate court also discussed the evidence that refuted Plaintiff’s claims that he was a seaman.  The court cited testimony of a former employee, a present employee, and the employer’s safety manager.  The testimony refuted Plaintiff’s allegations that he worked 50% of the time on the RAM VII.  Indeed, “[t]he summation of the witness testimony can reasonably be interpreted that [Plaintiff’s] connection to the RAM VII was tenuous and, therefore, not substantial in duration or nature as required by the second prong of the Chandris test.”  Accordingly, Plaintiff was not a seaman and the trial court did not err.

Troglen v. Hydraulic Well Control, 2014-308 (La. App. 3 Cir. 10/8/14); — So. 3d —-.

The Supreme Court Denied Review in Dize and Other Maritime Cases

The Supreme Court is back in session.  On October 6, 2014, the Court issued its Orders list, wherein a large number of cases were denied certiorari.  Accordingly, the Court will not review:

Dize v. Association of Maryland Pilots.  The question presented in Dize was whether, when applying the Chandris, Inc. v. Latsis thirty-percent rule–that, ordinarily, a qualifying “seaman” under the Jones Act must spend thirty percent or more of his time in service of a vessel in navigation–a court may consider the time a maritime worker spends in the service of a vessel in navigation that is moored, dockside, or ashore, as the Third, Fifth, Sixth, and Ninth Circuits have held, or whether a court must categorically exclude such time, as the Eleventh Circuit and the Maryland Court of Appeals have held.

Gonzalvez v. Celebrity Cruises, Inc.  The petitioners asked the Court to consider whether seamen are statutorily exempt from the 3-month limitations period under Chapter 1 of the Federal Arbitration Act.  This case arose from dispute about sharing gratuities under the Seaman’s Wage Act.  This link will take you to Lisa Schaeffer’s Lexis article “U.S. Supreme Court Denies Cert for Celebrity Cruise Line Workers.”

Downer v. Royal Caribbean Cruises, Ltd.  This case asked inter alia whether the Eleventh Circuit’s decision compelling arbitration for seafarers’ claims against a cruise line, under foreign law, deprives them of their American statutory rights in violation of the “effective vindication doctrine.”

Lyles v. Seacor Marine.  In Lyles, the plaintiff lost a Jones Act and maintenance and cure claim nearly ten years before trying to reassert his claims.  The Fifth Circuit denied the plaintiff’s claims and also admonished the plaintiff, writing that “future frivolous, repetitive, or otherwise abusive filings may result in the imposition of sanctions, including dismissal, monetary sanctions, and restrictions on his ability to file pleadings in this court or any court subject to [Fifth Circuit] jurisdiction.”