President Trump Waives Jones Act in Response to Relief Efforts in Puerto Rico

The Merchant Marine Act of 1920, more commonly known as the Jones Act, was passed to promote and maintain the American merchant marine by, in part, regulating maritime commerce in U.S. territorial waters and between U.S. ports.  For nearly 100 years, the Jones Act has required that U.S. flag ships, constructed in the U.S., owned by U.S. citizens, and crewed by U.S. citizens or permanent residents be used to transport all goods over water between U.S. ports.  The Act also provides seaman the right to recover for personal injuries sustained in the service of his vessel.

 

Waivers to the Jones Act’s restriction limiting the transportation of good between U.S. ports to U.S. built, owned, and operated vessels can be granted when in the interest of the national defense.  Typically, these waivers have been allowed during times of national emergency.  Such a waiver was granted following Hurricane Katrina in 2005 to foreign vessels carrying oil and natural gas.  Recently, a similar waiver was granted for the Southeastern states following Hurricanes Harvey and Irma.

 

On September 28, 2017, President Trump authorized a waiver for all products bound to ports in Puerto Rico to aid in the worsening crisis on the Island following the destruction caused by Hurricane Maria.

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

Federal District Court Once Again Addresses Discoverability of Surveillance

The Eastern District of Louisiana recently issued another opinion interpreting Chiasson v. Zapata Gulf Marine Corp., the benchmark Fifth Circuit case that guides the discoverability of surveillance as substantive versus impeachment evidence.  Plaintiff alleged that, while employed as a Jones Act seaman, he experienced an accident that resulted in injury to his back and other parts of his body.  In filing against his employer for Jones Act benefits and other defendants for negligence under general maritime law, Plaintiff filed an expedited motion to compel production of surveillance obtained by his Jones Act employer prior to his deposition.  Employer objected to the production of surveillance arguing that surveillance was non-discoverable impeachment evidence at the present stage of litigation.  The District Court agreed that, under Chiasson, Plaintiff was entitled to production of surveillance tapes as substantive evidence, but that Chiasson did not address the timing of disclosure.  The court agreed with Employer that the proper procedure would be to produce the surveillance evidence subsequent to Plaintiff’s deposition in order to preserve the substantive and impeachment value of the surveillance evidence.

 

Krekorian v. FMC Technologies, Inc.

Seaman’s Widow’s Claim for Punitive Damages Denied

Recently, the United States District Court for the Eastern District of Louisiana further shored up the clearly delineated avenues for recovery available to plaintiffs involved in Jones Act and personal injury suits arising under general maritime law.  In Wade v. Clemco Industries Inc., et al, No. 16502 (E.D. La. Feb. 2, 2017), the court affirmed the Fifth Circuit’s decision in Scarborough v. Clemco Industries, Inc., and denied the widow of a Jones Act seaman the recovery of punitive damages from non-employer third-parties.

 

Court documents show that the decedent, Garland Wade, worked as a sandblaster and paint sprayer on vessels owned by Coating Specialists, Inc., and performed work on permanent fixed platforms owned and/or operated by Chevron USA both in Louisiana and Federal waters.  Several years after leaving his employment as a sandblaster, the decedent died of connective tissue disease. In the case at bar, it was alleged that the decedent was not provided with a protective hood, not given instructions for the proper use of the hood he may have been given, and that he was not provided with a safe work place.

 

Plaintiff, Rose Wade, initially filed suit on grounds that her husband’s death was caused by products manufactured, marketed, designed, sold, and/or distributed by the defendants, and which contained asbestos which she alleged directly caused or aggravated her husband’s illness and death.  As a result of the defendant’s respective actions and/or inactions, Plaintiff sought $5,000,000.00 in damages for the wrongful death of her husband.

 

Defendant quickly filed motions for partial summary judgment seeking the dismissal of Plaintiff’s claims for non-pecuniary losses, under the well-established rule that Jones Act seamen and their survivors are not entitled to recover non-pecuniary damages from a non-employer third parties. (Scarborough v. Clemco Industries, Inc., 391 F.3d 660, 668 (5th Cir. 2004).)  In conjunction with their efforts, Defendants noted that the Plaintiff in the instant matter had already filed a state court suit in which the decedent had been adjudged to have been a Jones Act seaman, and therefore there could be little question that Scarborough would apply to the claims at issue before the Eastern District.  Defendants also argued that the Supreme Court’s holding in Townsend, which had previously resulted in an award of punitive damages for Employer’s arbitrary withholding of maintenance and cure, did not apply, because the Wade matter did not involve the issues of maintenance and cure.

 

In response, Plaintiff averred that her claims against the non-employer third-parties did not arise under the Jones Act or general maritime law; however, the Court disagreed with this assertion.  In so doing, the Honorable Judge Eldon Fallon found this case to be analogous to McBride v. Estis Well Serv., L.L.C., 768 F.3d 382 (5th Cir. 2014), cert. denied, 135 S. Ct. 2310 (2015), and noted that in that matter, as in the instant case, Plaintiff elected to bring her claim under general maritime law, and thus the parties were to be bound by the limitations on damages previously established under that body of law.  In granting the defendants’ motions in Wade, the court further solidified the foundation laid by McBride and its progeny, in wrongful death cases brought under general maritime law, which continue to limit a survivor’s recovery from employers and non-employers to pecuniary losses in cases where the Jones Act is implicated.