New Version of Nautical Rules of the Road Published

The United States Coast Guard has published a new amalgamated version of the nautical Rules of the Road to improve the readability and understanding of the navigation rules (commonly called “Rules of the Road”). The version combines the Rules of the Road and associated regulations. This edition shows the rules in a one-page format—as opposed to the previous two page, side-by-side. Rule differences are shown in either a two-column table or in bracketed text. Italics text is used to differentiate the Inland Rules from the International Rules. This new edition is available online.

NINTH CIRCUIT HOLDS DEFENSE BASE ACT’S ZONE OF SPECIAL DANGER APPLICABLE TO LOCAL NATIONALS

Claimant, a citizen of the Marshall Islands, was employed as a civilian defense contractor based in the Kwajalein Atoll, which houses the U.S. Army Space and Missile Defense Command’s Ronald Reagan Ballistic Missile Defense Site.  Claimant was hired as a painter and was given a four-day overnight assignment to paint and repair the Gagan Island pier.  While on Gagan Island, Claimant and co-workers resided in Employer’s trailer, which had limited space and food.  Claimant, as was culturally customary for Marshallese, engaged in reef fishing after hours to catch and eat the fish within the local body of water.  The DBA employer had a policy of prohibiting reef fishing during work hours.  While reef fishing on Gagan Island after hours, Claimant slipped and fell, cutting his right foot.  This injury became infected and ultimately resulted in the amputation of Claimant’s right leg below his knee.

 

Claimant sought benefits pursuant to the Defense Base Act as an extension of the Longshore & Harbor Workers’ Compensation Act.  The Employer denied benefits asserting that the zone of special danger did not apply to local nationals, but only to foreign nationals.  The ALJ and BRB disagreed with Employer and awarded benefits.  On appeal, the Ninth Circuit affirmed the award of benefits.

 

The Ninth Circuit held that the plain language of the DBA does not distinguish between employees sent abroad from their home country and local nationals.  Further, the court held that Congress implicitly endorsed applications of the zone of special danger to local nationals, citing to O’Leary, the United States Supreme Court case that first articulated the zone of special danger in 1951.  Further O’Leary and its progeny did not distinguish between employees sent abroad and local nationals, as Claimants’ domiciles are never broached in those cases.  The Ninth Circuit, however, did note in dicta that if Claimant were injured at home in his living room instead of injured during a four-day overnight work assignment on an uninhabited island with restricted access, then the zone of special danger would not likely apply.

 

Chugach Management Services v. Jetnil & Director, OWCP

Federal Policy Remains that Arbitration Agreements and their Broad Construction are Favored

Plaintiff filed a seaman’s complaint alleging that he incurred injury while working as a crew member on one of the defendant’s vessels because the defendant negligently assigned plaintiff to activities that defendant knew or should have known would result in injury. Defendant filed a motion to stay litigation in favor of arbitration based on the Claims Arbitration Agreement that plaintiff had previously signed. When defendant moved to dismiss plaintiff’s lawsuit, attaching the arbitration agreement to its motion, plaintiff admitted that the arbitration agreement existed and, if applicable, would compel arbitration. Plaintiff’s opposition was that his claim was outside of the scope of the arbitration agreement because it covered only an injury to his right shoulder, while the claim in his lawsuit was brought for injuries to both shoulders and therefore was not a “known claim for a specific injury” at the time plaintiff entered into the arbitration agreement. Although the court acknowledged that investigation may ultimately reveal that plaintiff was bringing a claim for a new, distinct injury, the court found plaintiff’s pleadings insufficient to establish that fact. The court highlighted the federal policy favoring arbitration and the broad construction of the scope of arbitration agreements as it granted the defendant’s motion to compel arbitration and directed the parties to proceed with arbitration in accordance with the parties’ arbitration agreement.

Macrury v. American Steamship Company, 2017 U.S. Dist. LEXIS 106704 (USDC EDMI, July 11, 2017).

Fifth Circuit Vacates Summary Judgment and Allows Consideration of Plaintiff’s Expert

The plaintiff allegedly sustained injuries when he fell on a vessel owned by his employer.  He filed a lawsuit in the U.S. District Court for the Eastern District of Louisiana, alleging negligence under the Jones Act and unseaworthiness of the vessel.  The employer eventually filed a Motion for Summary Judgment and argued for dismissal of the case based on the plaintiff’s inability to meet his burden of proof with respect to causation of his injuries.  The plaintiff then filed an opposition memorandum and submitted a report by his maritime expert.  The District Court refused to consider the expert report because while it was signed, it was unsworn.  Summary judgment was granted and the case was dismissed.  The plaintiff appealed to the Fifth Circuit.

 

The Fifth Circuit noted that in granting the motion, the District Court had incorrectly relied on a prior version of Rule 56 of the Federal Rules of Civil Procedure, which governs summary judgment.  Rule 56 was amended in 2010, including a subsection outlining the means of providing documentary support or opposition to a motion for summary judgment.  In rejecting the report, the District Court had looked to the prior rule regarding sworn affidavits.  The Fifth Circuit noted that the new Rule 56 clearly allows for the consideration of “documents . . . declarations, [and] other materials” in addition to sworn affidavits.  For purposes of summary judgment, the document may be presented in a form that would not be admissible at trial.  The plaintiff could later present the same evidence at trial in an admissible form.  In other words, the fact that the expert report was not a sworn affidavit was of no consequence for purposes of the Motion for Summary Judgment.  The Fifth Circuit vacated the granting of summary judgment and remanded the case to the District Court for consideration of the expert report.

 

Lee v. Offshore Logistical and Transport, LLC