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.”

New Maritime and Longshore Articles Online

Here are some highlights of new Maritime and Longshore articles on the internet:

Check out Siobhan Morrissey’s article, For vacationers encountering trouble on cruise ships, U.S. laws may provide little help, which the American Bar Association published on the ABA Journal website.  Using the Costa Concordia accident as a backdrop, the article discusses the legal rights of cruise ship vacationers.  Also, the article discusses other potential problems haunting the cruise ship industry, such as serious crimes and illnesses.

Next, head over to the LexisNexis Workers Compensation Law community for Paul Howell’s article, Meddlin’ With Settlin’.  This article addresses the requirements for a Longshore settlement…and the players who could stop a settlement dead in its tracks.  Those players include the claimant, the employer and carrier, and the Director.

Finally, the New York Post’s website has a great article entitled, Britney Spears’ songs used to fight Somali pirates.  No, really.  My favorite quote comes from Second Officer Rachel Owens: “It’s so effective the ship’s security rarely needs to resort to firing guns.”

ADA Guidelines for Passenger Vessels

The U.S. Department of Transportation will in the near future be issuing new accessibility guidelines for the construction and alteration of passenger vessels covered by the Americans with Disabilities Act (ADA) to ensure that all such vessels are readily accessible to and useable by passengers with disabilities.  The guidelines are being written by the Architectural and Transportation Barriers Compliance Board.  The guidelines would apply to passenger vessels, other than ferries and tenders, permitted to carry more than 150 passengers or more than 49 overnight passengers; ferries permitted to carry more than 99 passengers; and tenders permitted to carry more than 59 passengers.

The proposed guidelines address various features of vessel accessibility and include provisions for onboard routes, vertical access between decks, doorways, and coamings, toilet rooms, guest rooms, alarm systems, and other spaces and elements used by passengers.  The Board is not proposing requirements for smaller vessels due to assessed design challenges, space constraints, and other factors.  The guidelines would apply to newly built of altered vessels.

In laying the groundwork for this effort, the Board conducted research on the feasibility and impacts of integrating accessibility into the design of vessels.  This information includes case studies on vessels of various types and sizes, examination of design solutions to identify design and engineering constraints, and cost and impact analyses.  The Board previously released advanced drafts of the guidelines for comment which were based on recommendations from an advisory panel organized by the Board, the Passenger Access Advisory Committee.

Access Board Chairman Karen L. Braitmayer stated, “We know from experience that barriers to accessibility are often due to a lack of clear and detailed design guidance, and this rule will fill a long standing gap in making passenger vessels accessible to all.”

The Board is developing these guidelines under the ADA, which requires access to transportation and other services and to places of public accommodation.  Under the law, the Board is responsible for developing minimum guidelines covering access to transportation systems and to the built environment.  The vessel guidelines, once finalized, will join the Board’s ADA Accessibility Guidelines for Vehicles, which are currently being updated, and its ADA Accessibility Guidelibes for Buildings and Facilities.  The new guidelines will be used by the Department of Transportation and the Department of Justice in setting mandatory standards.

The rule can be accessed on the Board’s website or through the Federal government’s rulemaking portal at  Instructions for submitting comments, which are due by September 23, are included in the proposal.

Longshore and Maritime Posts on the Internet

Here are some articles on the Internet that may be interesting to the maritime, Longshore and Defense Base Act community:

Over at SCOTUSBlog, Lyle Denniston discusses the new letter briefs in Lozman.  In an earlier post on this blog, we mentioned that the Supreme Court asked for letters briefs to determine whether there was a live controversy in Lozman.  As Mr. Denniston reports, all parties want the Court to consider Lozman: “Lozman, the city, and the federal government all agreed in their briefs that the posting of the bond, as well as traditional maritime principles, made it clear that the pending case is not moot.”  If you are interested in reviewing the letters briefs, Mr. Denniston provides links.

Over at the LexisNexis Workers’ Compensation Law Community there are a few articles to check out.  Stephen Embry’s article, Workers’ Injury Law and Advocacy Group Holds 40th Anniversary Symposium on the Status of Workers’ Compensation Law in the United States, discusses the most recent WILAG meeting and the history of workers’ compensation law since 1972.  Stephen Vaughan’s article discusses the Fifth Circuit’s Fisher v. Halliburton decision wherein the court determined that the Defense Base Act was the plaintiffs’ exclusive remedy–thus dismissing the plaintiffs’ tort claims.  Following Fisher, “[c]laimants’ attorneys are not likely to see a new cause of action in the Fifth Circuit for egregious or malicious claims handling misbehavior…[but the] Fifth Circuit has…left the door open to consideration of a claim against an employer for behavior intended to result in injury.”

At John’s Longshore and Defense Base Act Blog, John Chamberlain discusses the Ninth Circuit’s recent decision Pacific Ship Repair and Fabrication Inc. v. Dir., OWCP.  He has a great take on the case from a claimant’s point of view.  As correctly pointed out, had permanent total disability been paid, the claimant would have been paid more indemnity benefits.   The Ninth Circuit’s formulation, however, allowed “the court to ignore the amount due to the claimant.”  (Previously, we addressed Pacific Ship Repair in a post that discussed the decision from the employer’s and carrier’s point of view.  Not only should the Special Fund have continued paying benefits to the permanently-disabled claimant, but the Pacific Ship Repair decision is so loosely written that it will likely cause more litigation to hash out what a “potential for improvement” is and when the “reset button” has been pressed.  It looks like claimants, employer and carriers can agree that Pacific Ship Repair is a troubling decision.)

At the AEU Longshore Blog, Jack Martone posted an article that answers three important questions for employers: 1. When do I need Longshore Act insurance?  2. Where can I get Longshore Act insurance?  3. What happens if I need Longshore Act insurance and I don’t have it?

As he does every month, Tom Langan posted a new update at Longshore Update.  Everyone should check out Longshore Update, which collects and discusses the past month’s Longshore and maritime-related cases.  Not only are the write-ups informative, they are humorous too.

Finally, over at Workcompcentral, there is a link to our recent Section 33(g) article, as well as a great collection of columns addressing a broad spectrum of workers’ compensation issues.