Archives for February 2013

Ninth Circuit Says that Animal Planet’s Sea Shepherd Engaged in Piracy

The Ninth Circuit issued an opinion–perhaps rebuke is a better word–determining that the Sea Shepherd engaged in piracy against Japanese researchers who hunt whales in the Southern Ocean.  The opening paragraph demonstrated some of the “tactics” the Sea Shepherd used to “hound” the whale researchers:

You don’t need a peg leg or an eye patch. When you ram ships; hurl glass containers of acid; drag metal-reinforced ropes in the water to damage propellers and rudders; launch smoke bombs and flares with hooks; and point high-powered lasers at other ships, you are, without a doubt, a pirate, no matter how high-minded you believe your purpose to be.

Whale hunting is a controversial topic.  The Ninth Circuit set aside the emotions about whale hunting to issue a well-reasoned opinion.  Further, some of the language in the opinion demonstrates that the court was well aware that whaling is a “hot button” issue, which is why it focused on piracy.  For instance, the court stated that “enjoining piracy sends no message about whaling; it sends the message that we will not tolerate piracy.”  The Ninth Circuit also put the case into context very quickly, noting in the second paragraph that the Sea Shepherd was attacking researchers who were lawfully engaging in whale hunting in accordance with an international treaty signed by the United States, Japan, and many other nations.

Institute of Cetacean Research v. Sea Shepherd Conservation Society, — F.3d —- (9th Cir. 2013).

Note: the Sea Shepherd Conservation Society is featured on Animal Planet’s Whale Wars.

Fifth Circuit Addresses Dual Capacity Employers and the “Something More” Factors

Plaintiff was employed as a crane operator by Defendant, which was both the vessel owner and the contractor of a crane.  The crane developed an open and obvious hydraulic fluid leak, and Plaintiff complained to supervisors about the leak, which covered areas of the vessel that were within the crane’s swing radius.   Later, Plaintiff slipped on the crane’s tracks, injuring his back.  He blamed the injury on a black spot of hydraulic fluid.   Defendants paid Longshore and Harbor Workers’ Compensation Act (“LHWCA”) benefits, and Plaintiff then sued Defendant (in its capacity as the vessel owner) for negligence.  The federal district court granted Defendant’s motion for summary judgment, finding that Defendant had not breached its duties under Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981).  Plaintiff appealed.

A dual-capacity employer acts as both employer and vessel owner.  This presents a problem because if the “employer” is negligent, then LHWCA compensation payments are the employee’s exclusive form of recovery; but if the “vessel owner” is negligent, then the employee can pursue workers compensation while also pursuing tort remedies.  This problem becomes even more difficult when the employer’s workers act as both stevedores and vessel crew.

In analyzing the purported negligence, the court focused on the Duty to Intervene and the Active-Control Duty.  The court determined that Plaintiff could not prove an abrogation of the Duty to Intervene because he could not satisfy the “something more” test.  A vessel owner may not have the Duty to Intervene even if they know of a dangerous condition and an unreasonable response.  A plaintiff must show “something more” when a contractor’s employees create open and obvious hazards in an area or with equipment under their exclusive control.  The something more test has been distilled into six non-exhaustive factors:

(1) whether the danger was open and obvious, (2) whether the danger was located in the ship or ship’s gear; (3) which party created the danger or used the defective item and was therefore in a better position to correct it; (4) which party owned and controlled the defective item; (5) whether an affirmative act of negligence or acquiescence in the use of a dangerous item occurred; and (6) whether the shipowner assumed any duty with regard to the dangerous item.

Here, Plaintiff could not satisfy the “something more” showing, and his Duty to Intervene argument failed.

Plaintiff’s Active-Control Duty argument failed, too.  Plaintiff alleged that Defendant exercised active control over the vessel and “its gear and equipment” in its capacity as vessel owner.  The Fifth Circuit disagreed.  A vessel owner “does not violate the Active-Control Duty simply because a hazard develops during stevedoring operations or because that hazard must be remedied in areas of the ship that might at other times be under the vessel owner’s control.”  Here, the evidence demonstrated that Defendant, acting as vessel owner, turned over the vessel to Defendant, acting as a contractor:

Indeed, the record shows that G.C. as vessel owner handed the unmanned Barge over to G.C. as contractor; that Landry and other [sic] construction workers effectively assumed control of the barges as employees of G.C. as contractor; and that Landry was injured on equipment provided by and under the control of G.C. as contractor.

Landry v.  G.C. Constructors, No. 12-60104 (5th Cir. Feb. 20, 2013).

A Long Way From a New Longshore Act: Critiquing Senate Bill 669

The Loyola Maritime Law Journal recently published an article that I co-wrote with Will Bland, IV, and Tyler Kostal entitled A Long Way From a New Longshore Act: Critiquing Senate Bill 669.  I had the pleasure of presenting this article in a panel discussion at the 2012 Annual Longshore Conference, during a discussion about Senator Johnny Isakson’s attempts to amend the Longshore and Harbor Workers’ Compensation Act.  Below is the article’s abstract:

This Article addresses the proposed amendments to the Longshore and Harbor Workers’ Compensation Act (“LHWCA”) set out in Senate Bill 669, and argues that many of the proposed amendments will have deleterious effects on the administration and adjudication of LHWCA and Defense Base Act (“DBA”) claims. To be sure, some of the amendments proposed by Senator Johnny Isakson on March 29, 2011, such as the increase in the amount of funeral benefits and the relaxation of the time constraints associated with penalties for late payment of benefits, are non-controversial. The Article argues that other amendments in Senate Bill 669 are complete “game changers,” including: (1) codification of the last responsible employer doctrine; (2) reducing benefits because of prior impairments from non-occupational factors; (3) limiting a claimant’s choice of physician to a physician designated in a carrier’s “health care panel;” (4) abolishing the Second Injury Fund; (5) calculating a claimant’s compensation rate based upon “spendable earnings;” (6) reducing the time for filing claims; (7) allowing benefits-withholding pursuant to the Employment Retirement Income Security Act; and (8) severely punishing LHWCA fraud. The Article describes how these “game changers” will redefine the LHWCA and DBA practice areas. Finally, the Article considers important issues that Senate Bill 669 fails to address, such as the circuit split regarding attorney’s fees under the LHWCA, the meaning of the term “compensation,” and the proper classification of psychological injuries as “traumatic injuries” or “occupational diseases.” Taken as a whole, Senate Bill 669 proves that we are a long way from a new Longshore Act.

In addition to being available in the Loyola Maritime Law Journal, anyone can download the article for free at SSRN.  Simply click on this link and download.

Eleventh Circuit Defines “Navigable Waters”

The Eleventh Circuit answered a question “almost as old as the doctrine of admiralty jurisdiction itself.”  The question: what are navigable waters?  According to the Eleventh Circuit, “a waterway is navigable for admiralty-jurisdiction purposes if, in its present state, it is capable of supporting commercial activity.”  The Eleventh Circuit begrudgingly stated that it was bound by prior precedent, Richardson v. Foremost Ins. Co., 641 F.2d 314 (5th Cir. 1981).

In Richardson, the Fifth Circuit addressed whether a tort claim based on a collision between two pleasure boats on a waterway that was “seldom, if ever, used for commercial activity” fell within the federal courts’ admiralty jurisdiction.  641 F.2d at 315–16.  The court noted that for admiralty jurisdiction to exist in a tort case, two requirements must be met: (1) there must be a significant relationship between the alleged wrong and traditional maritime activity (the nexus requirement) and (2) the tort must have occurred on navigable waters (the location requirement).  Id. at 315.  Concluding that both requirements had been met, the Fifth Circuit held that the district court had admiralty jurisdiction over the tort claim.  Id. at 316.  The court determined that the nexus requirement had been met because boats “are engaged in traditional maritime activity when a collision between them occurs on navigable waters.”  Id.  As to the location requirement, the court concluded that the tort occurred on navigable waters even though the waterway was seldom, if ever, used for commercial activity.  Id. Specifically, the court said:
We note additionally from the record that the place where the accident occurred is seldom, if ever, used for commercial activity.  That does not cause us to vary from our holding …. It would be introducing another note of uncertainty to hold that admiralty jurisdiction extends only to a stretch of navigable water that presently functions as a commercial artery …. If the waterway is capable of being used in commerce, that is a sufficient threshold to invoke admiralty jurisdiction.
Id. We are bound by this holding.  And the fact that Richardson considered whether admiralty jurisdiction extends to a tort case does not change this conclusion.