Articles by Beth Bernstein

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).

LHWCA Clarification Act: Ensuring Coverage for Recreational Vessel Workers

On July 29, 2014, the House of Representatives passed the Longshore and Harbor Workers’ Compensation Clarification Act.  The purpose of this legislation is to ensure that workers who are employed in the recreational vessel repair industry have workers’ compensation coverage.  It does so by clarifying the definition of a “recreational vessel” under the Act, which thereby makes it easier for employers, and particularly small businesses, to provide Longshore coverage to their employees without incurring the cost of duplicative policies.

Previous regulations complicated the definition of a recreational vessel, making it difficult for employers to determine which employees are covered by the Longshore Act, and which employees require state workers’ compensation coverage.  This resulted in employers and small businesses having to purchase duplicative policies, lay off employees, or purchase no insurance coverage at all.  The new legislation provides the necessary clarification to make it easier and more affordable for employers to purchase workers’ compensation coverage and protect their employees.

The text of the Act is below:

To amend the Longshore and Harbor Workers’ Compensation Act to provide a definition of recreational vessel for purposes of such Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,


This Act may be cited as the “Longshore and Harbor Workers’ Compensation Clarification Act of 2014”.


(a) Definition.–Section 2 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 902) is amended–

(1) by redesignating paragraph (22) as paragraph (23); and

(2) by inserting after paragraph (21) the following:

“(22)(A) The term `recreational vessel’ means a vessel–

“(i) being manufactured or operated primarily for pleasure; or

“(ii) leased, rented, or chartered to another for the latter’s pleasure.

“(B) In applying the definition in subparagraph (A), the following rules apply:

“(i) A vessel being manufactured or built, or being repaired under warranty by its manufacturer or builder, is a recreational vessel if the vessel appears intended, based on its design and construction, to be for ultimate recreational uses. The manufacturer or builder bears the burden of establishing that a vessel is recreational under this standard.

“(ii) A vessel being repaired, dismantled for repair, or dismantled at the end of its life will be treated as recreational at the time of repair, dismantling for repair, or dismantling, provided that such vessel shares elements of design and construction of traditional recreational vessels and is not normally engaged in a military, commercial, or traditionally commercial undertaking.

“(iii) A vessel will be treated as a recreational vessel if it is a public vessel, such as a vessel owned or chartered and operated by the United States, or by a State or political subdivision thereof, at the time of repair, dismantling for repair, or dismantling, provided that such vessel shares elements of design and construction with traditional recreational vessels and is not normally engaged in a military, commercial, or traditionally commercial undertaking.”.

(b) Regulations.–Not later than 90 days after the date of enactment of this Act, the Secretary of Labor shall–

(1) amend the regulations in section 701.501 of title 20, Code of Federal Regulations, by deleting the text of subsections (a) and (b) of such section and replacing it with only the text of the definition of recreational vessel in section 2(22) of the Longshore and Harbor Workers’ Compensation Act, as added by subsection (a); and

(2) make no further modification to such definition in another regulation or any administrative directive.

First Circuit Reverses Summary Judgment on Foreseeability Issue

Plaintiff filed suit against Defendant under the Jones Act and general maritime law after her husband fell and drowned after slipping from an obviously hazardous place on a pier while attempting to return to the commercial fishing boat on which he was working. The district court granted summary judgment in favor of Defendant and Plaintiff appealed.

Plaintiff worked as a commercial fisherman. The facility at which the fishing vessel was docked was often locked, causing crewmembers and other employees to enter the facility through an obvious gap in a surrounding fence. After entering through the gap, crewmembers could either walk a lengthy route around the parking lot and building to access the boat, or walk along the waterfront retaining wall and along the pier to access the stern of the boat. Walking along the wall and pier was significantly shorter and more direct, and also more hazardous because snow and ice were not removed from the pier.

Plaintiff maintained that Defendant violated its duty to remedy the hazard of snow and ice on the pier, particularly on the retaining wall from which the deceased fell. The question of whether Defendant owed a duty of care is an issue of law that may be settled on summary judgment if undisputed facts show that the risks posed by the defendant’s actions were not foreseeable. Landowners have a duty to remove snow and ice accumulations even though those accumulations present an open and obvious hazard to visitors. That the hazard is open and obvious does not negate the landowner’s duty to remedy the hazard. A landowner can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. The duty to remedy the danger remains when it is foreseeable that visitors will choose to encounter the hazard despite the open and obvious risks it poses.

Here, the Court of Appeals found that Defendant was not entitled to summary judgment because too many disputed facts existed and there were too many disputed issues. The Court found that the record failed to establish that Defendant did not have any reason to anticipate crew members would attempt to cross the icy pier in this manner. A finder of fact could infer that the landowners knew the gap in the fence existed and knew it was used. The Court held that issue of foreseeability should be submitted to a finder of fact and that summary judgment was not proper.

Cracchiolo v. Eastern Fisheries, Inc., — F.3d —-, 2014 WL 144519 (1st Cir. 2014).

District Court Lacked Federal Question Jurisdiction on 33(g) Issue

Plaintiff sustained an injury that brought him under the purview of the Longshore and Harbor Workers’ Compensation Act (LHWCA).  He received benefits from the insurance carrier, LWCC, for LHWCA benefits.  Plaintiff also sued a third party for negligence in federal district court.

According to Section 933(g) of the LHWCA, a party forfeits any future benefits under the LHWCA if he or she settles with a third party without receiving written approval of the settlement from the LHWCA insurance carrier.  In the instant matter, Plaintiff and the third party reached an agreement at a settlement conference to settle the claim for a proposed amount.  An LWCC representative was present at the settlement conference, and expressed that LWCC would consent to the proposed settlement amount.  The federal district court therefore conditionally dismissed the claim based on the understanding that it had been settled.

Following the settlement conference, LWCC learned that it would likely be left liable for significant future exposure and therefore refused to executed the Form LS-33, which is the written approval for settlement required by Section 933(g) of the LHWCA.  The district court therefore vacated the conditional dismissal, and Plaintiff joined LWCC as a party to its third party claim for negligence.

Plaintiff requested that the federal district court order LWCC to execute the Form LS-33 or find that LWCC waived Section 933(g)’s written approval requirement.  LWCC moved to dismiss for lack of subject-matter jurisdiction.  The federal district court denied LWCC’s motion to dismiss because it found that the waivability of the Section 933(g) written approval requirement created federal-question jurisdiction.

Plaintiff moved for summary judgment and LWCC filed a cross-motion for summary judgment contending that the written approval requirement of Section 933(g) was not waivable.  The federal district court granted summary judgment in favor of LWCC and dismissed the complaint with prejudice, holding that LWCC’s decision to withhold consent on the settlement was a proper exercise of its power under the LHWCA.  Plaintiff appealed this ruling, and LWCC appealed the denial of its motion to dismiss for lack of subject matter jurisdiction.

The Fifth Circuit held that the district court incorrectly found that it had federal-question jurisdiction.  Federal-question jurisdiction exists if the party has asserted a federal cause of action or the party has asserted a state cause of action that necessarily raises a stated federal issue.  Here, Plaintiff did not assert any federal cause of action against LWCC, as Section 933(g) of the LHWCA does not create a private cause of action.  None of Plaintiff’s claims required proving a federal issue as an element of the claim, and Plaintiff failed to show that the state-law claims required proving a substantial federal issue.  The Fifth Circuit therefore reversed the summary judgment and rendered a judgment of dismissal.

Venable v. Louisiana Workers’ Compensation Corp., — F.3d —- (5th Cir. 2013).