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

U.S. Fifth Circuit reverses district court’s grant of summary judgment, finding that ROV Technician was not a seaman as a matter of law

The United States Court of Appeals for the Fifth Circuit held that a district court erred in finding that a plaintiff, who was a technician who navigated and controlled remotely operated vehicles (“ROVs”) for offshore applications, qualified as a “seaman” as a matter of law. ROVs are unoccupied mechanical devices used to service and repair offshore, underwater drilling rigs. Technicians navigate and control ROVs aboard an ROV Support Vessel, to which the ROVs remain tethered while in use. Technicians work inside a windowless shipping container converted into an ROV command center located on the support vessel. In the context of his claim under the Fair Labor Standards Act (“FLSA”) to recover unpaid wages for overtime worked during his employment, the district court granted summary judgment against the plaintiff, finding that he qualified as a seaman under the FLSA and was exempt from the Act’s overtime provisions.

 

The Fifth Circuit reversed the district court’s ruling, finding that the jurisprudence upon which the district court relied was distinguishable. It focused on the fact that ROV Technicians had a completely separate command structure than that of the tankerman considered in the Coffin case relied upon by the district court. Thus, the Fifth Circuit held that the district court erred in granting the defendant’s motion for summary judgment because it had not been established as a matter of law that the seaman exemption applied. The matter was remanded to the district court for further proceedings.

 

Halle et. Al. v. Galliano Marine Service, LLC

Same Sex Spouse Can Recover Under DOHSA

In what appears to be a case of first impression, the U.S. District Court for the Southern District of Florida has held a same sex spouse can recover damages under the Death on the High Seas Act (DOHSA) arising from the death of his husband while on a cruise on the high seas.

The facts recited by the Court are compelling: Plaintiff and his husband were subjected to ‘repetitive anti-gay insults’ while passengers onboard the cruise. On their first day onboard, they were repeatedly called a ‘lipstick’ by a bartender. The couple immediately complained to the cruise operator’s management about the incidents. The next evening, the husband was extremely distraught when employees called him ‘a pedophile and other anti-gay slurs.’ He returned to his stateroom and told his husband about the insults. Afterward, security officers reported to the couple’s stateroom and ‘engaged in an argument’ with them. ‘A series of events’ ensued and the decedent fell over the couple’s seventh deck stateroom balcony onto a life boat on deck six. He held on to the life boat for several minutes as crewmembers attempted to rescue him. The crewmembers grabbed his hand but failed to rescue him, and he fell into the ocean. The ship did not stop for some time and did not timely deploy rescue boats. After receiving a distress call from the cruise, the United States Coast Guard searched for the decedent but did not find him.

The Plaintiff sued for wrongful death of his husband, as well as for the intentional infliction of emotional distress for witnessing his husband’s death. On a Rule 6 Motion to Dismiss, the Court allowed the DOHSA claim to continue, but dismissed the claim for intentional infliction of emotional distress because, although Plaintiff was mere feet away from his husband and witnessed his fall and disappearance, he was not himself in the ‘zone of danger’ where he was at risk of physical harm.

Elbaz v. Royal Caribbean Cruises, No. 16-24568, U.S.D.C., S.D.FL.

Longshore Act Penalties Increased For 2017

The Federal Civil Penalties Inflation Adjustment And Improvements Act of 2015 requires the Department of Labor to annually adjust its civil monetary penalty levels for inflation. On January 13, 2017, DOL promulgated a final rule adjusting penalties for 2017. The new penalties are:

Failure or late filing of Form LS-202: $22,957
Failure or late filing of Form LS-208: $297
Minimum Penalty for Discrimination: $2,296
Maximum Penalty for Discrimination: $11,478

These increased rates are effective January 13, 2017.