Jones Act Information

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Information from Jones Act Attorney regarding maritime law, maintenance & cure and application of the Jones Act

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ANNUAL SEMINAR SOUTHEASTERN ADMIRALTY LAW INSTITUTE :

ANNUAL SEMINAR SOUTHEASTERN ADMIRALTY LAW INSTITUTE RECENT MARITIME LAW DEVELOPMENTS: FIFTH, NINTH & TENTH CIRCUITS Joseph D. Terry Terry & Thweatt, P.C. Houston, Texas www.TerryThweatt.com Facebook.com/ TerryandThweatt

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012) Availability of Punitive Damages in Maintenance and Cure Claim:

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012) Availability of Punitive Damages in Maintenance and Cure Claim

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012):

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012) Mr. Clausen worked onboard the F/V BERING STAR as 2/E when he injured his lower back, neck, and hand while lifting a 122-pound piece of steel. After reporting the injury to Icicle, he went ashore in Alaska for initial medical care and was eventually sent home to Louisiana for further care and was unable to work. Plaintiff encountered persistent difficulties in getting Icicle and its adjusting firm to meet its obligation to pay him maintenance and cure during his recovery, which amounted to $20 a day. Plaintiff resorted to living in a recreational vehicle with a leaking roof and with no heat, air conditioning, running water, or toilet facilities.

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012):

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012)

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012):

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012) Additionally, Icicle delayed or refused to pay for treatment that Plaintiff’s doctors recommended, despite the fact that the adjusting firm confirmed to Icicle that the injuries were likely career-ending and recommended settlement before Plaintiff secured legal representation. Plaintiff’s doctor wrote Icicle advising of need for ESIs and was a candidate for back surgery, but letter was never disclosed to Plaintiff. Icicle subsequently filed suit in federal court to terminate M&C alleging Plaintiff impeded their right and obligation to investigate claim. Plaintiff retained counsel who filed suit in state court seeking damages for Icicle's negligence under the Jones Act, unseaworthiness , and wrongful withholding of maintenance and cure.

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012):

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012) The jury found Icicle negligent under the Jones Act, awarding Plaintiff $453,100 in damages. The jury also found that Icicle was callous or willful and wanton in its failure to pay maintenance and cure, awarding Plaintiff $37,420 in compensatory damages for maintenance and cure plus $1.3 million in punitive damages for Icicle's willful misconduct. The trial court awarded $387,558.00 in attorney fees and $40,547.57 in costs. The Court noted that the “egregious conduct” of the vessel owner included the fact that Icicle refused to pay for medical care and surgery that Icicle’s own “hand-picked” doctor had recommended and that Icicle provided only $20 per day in maintenance when it knew Plaintiff was living in a dilapidated recreational vehicle.

Clausen v. Icicle Seafoods, Inc., 272 P.3d 827 (Wash. 2012):

Clausen v. Icicle Seafoods , Inc., 272 P.3d 827 (Wash. 2012) The award of punitive damages was at approximately a 3:1 ratio to the compensatory damages award. The Court found that an award of punitive damages for wanton and willful failure to pay maintenance and cure is not capped at the 1:1 ratio of punitive damages to compensatory award approved by Exxon v. Baker and that the culpability of the vessel owner’s conduct may justify an award that results in a higher ratio. Icicle’s conduct was deemed not just reprehensible, but egregious and the size of the award was required because Icicle needed deterrence not to treat other workers in the same way.

McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012) :

McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012) Are punitive damages available under the Jones Act and/or general maritime law in the context of a wrongful death/survival action, or a personal injury action, for seamen who were killed or injured in Louisiana territorial waters after the decision of Atlantic Sounding Co., Inc. vs. Townsend? Both In re Osage Marine Services , 2012 U.S. Dist. LEXIS 28483 (E.D. Mo. 2012) and Wagner v. Kona Blue Water Farms , 2010 AMC 2469 (D. Hi. 2010) held that punitive damages were recoverable in unseaworthiness causes of action. On March 9, 2011, the barge Estis Rig 23 was operating in Louisiana, when a pipe in the derrick shifted as the crew was attempting to straighten the twisted monkey board in the derrick, causing the derrick and rig to fall over, leaving one crew member dead and three more injured.

McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012):

McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012)

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Defendant filed a Rule 12(b) (6) motion regarding the Plaintiff’s claim for punitive damages. Plaintiffs argued that Townsend left open the question as to whether punitive damages are available under the Jones Act, while Exxon Shipping Co. v. Baker made punitive damages available under general maritime law ( unseaworthiness ). Plaintiffs also argued Townsend , which abrogated the en banc decision of Guevara v. Maritime Overseas Co. reinstated the holding of In Re Merry Shipping as controlling precedent, permitting the recovery of punitive damages. McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012)

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The Court opined that Townsend: “does not hold that punitive damages are recoverable under the Jones Act” “does not call into question Miles’ holding concerning the damages limitations applicable to the Jones Act” “does not … cast doubt on the [Miles] Court’s holding that the Jones Act incorporated FELA’s ‘pecuniary limitation on damages.’” The Court, citing the Miles v. Apex decision, also held that notwithstanding federal statutory schemes including the Clean Water Act and the Jones Act, that punitive damages are a viable remedy afforded under the general maritime law only for (1) a maritime tort suffered by non-seamen and (2) the failure to pay maintenance and cure to seamen. Punitive damages are not available in an unseaworthiness claim. McBride v. Estis Well Serv., LLC, 2012 U.S. Dist. LEXIS 69284 (W.D. La. May 16, 2012)

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012):

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012) In November 2006, Plaintiff worked for Defendant as a licensed engineer aboard the dive vessel M/V JILLIAN MORRISON.

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012):

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012) In January 2008, Plaintiff, aboard another dive vessel owned by Defendant, left it abruptly and was hospitalized for ulcerative colitis, diabetes, and a liver condition. He did not return to work. Plaintiff brought Jones Act, unseaworthiness , and maintenance and cure claims against Defendant for his injuries. Prior to trial, the district court granted Plaintiff’s motion in limine to exclude evidence as to reduced charges paid by his insurer to satisfy his medical bills. Following trial, the district court ruled against Plaintiff’s Jones Act/general maritime law claims but awarded maintenance and cure and attorneys’ fees for obtaining that relief.

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012):

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012) In an issue of first impression, Defendant challenged the application of the collateral-source rule to determine the amount of cure awarded and argued on appeal the cure award should not have included the difference between the amount Plaintiff’s medical providers charged and the lesser amount they accepted from his insurer as full payment. While noting the collateral-source rule’s widely accepted application to prohibit reduction of compensatory damages in tort actions, the Court observed that no-fault maintenance and cure is an implied term of contract such that normal rules of damage are not strictly applied.

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012):

Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373 (5th Cir. 2012) Nevertheless, the Court cited to its opinion in Gauthier v. Crosby Marine Serv., Inc. for an exception to the relaxed-damages standard: “[w]here a seaman has alone purchased medical insurance, the shipowner is not entitled to a set-off from the maintenance and cure obligation moneys the seamen receives from his insurer.” Though Defendant could cite no pertinent case law, nor could the Court find any, the Court referenced prior precedent limiting recovery of maintenance and cure to “expenses actually incurred,” then held that the appropriate award of cure was “that [amount] needed to satisfy [ Manderson’s ] medical charges.” The district court erred by awarding the higher amount charged by the providers rather than the amount negotiated by Plaintiff’s insurer. This reduced the award of cure from $169,691.06 to $71,085.79.

Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011):

Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011) Loss of consortium available to injured seaman?

Barrette v. Jubilee Fisheries, Inc. 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011):

Barrette v. Jubilee Fisheries, Inc. 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011) Plaintiff was employed as a longline deckhand on the F/V ZENITH, which experienced numerous Freon leaks from April 2008 into the early season of 2009 due to blown and damaged hoses. Despite higher than normal readings of Freon levels, the Captain ordered the crew to continue working for several days before returning to port. It was determined that Plaintiff had suffered permanent damage to his lungs in the form of chronic dyspnea .

Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011):

Barrette v. Jubilee Fisheries, Inc., 2011 U.S. Dist. LEXIS 89514 (W.D. Wash. Aug. 11, 2011) Plaintiff’s wife filed a loss of consortium claim under her husband’s unseaworthiness claim, and Defendant filed a motion to dismiss this claim under Rule 12(b)(6), arguing that loss of consortium was not a cognizable claim for suits brought under the general maritime law. The Court allowed the seaman’s wife to recover for loss of consortium, reasoning that under Townsend such remedies as were traditionally available under maritime law could be recovered on maintenance and cure and unseaworthiness claims. The Court found that because unseaworthiness was a well-established cause of action prior to the enactment of the Jones Act, nothing in the Jones Act displaces such a claim nor limits the remedies available therein, thus the Jones Act does not preclude recovery for the loss of consortium claim.

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012) Spar considered a vessel under the Jones Act?

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012) Mendez, an Anadarko employee, was injured while working on the RED HAWK spar, which is a floating gas-production platform moored to the ocean floor by large anchors in the seabed some 5,000 feet below and located approximately 210 miles from Sabine Pass, Texas.

Mendez v. Anadarko Petroleum Corp., 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp., 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012)

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012)

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012) The spar had been moored in Red Hawk Field at Garden Banks blocks 876 and 877 since 2004. The mooring lines were permanently taut so that the spar could not move laterally. There was also an underwater infrastructure of flow lines and export pipeline systems, as well as umbilicals extending from the spar to the subsea wellheads. The Coast Guard classified the spar as an "industrial vessel" and the Certificate of Inspection stated that the spar was "considered a floating facility with passive ballast systems."

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012) Plaintiff filed Jones Act claim in state court, which Defendant removed to federal court under OCSLA, arguing that the Jones Act claim did not prevent removal because Plaintiff did not qualify as a seaman District court denied motion to remand after determining Plaintiff was not a Jones Act seaman and granted Defendant’s motion for summary judgment on the same ground and entered final judgment in favor of Defendant.

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012):

Mendez v. Anadarko Petroleum Corp. 2012 U.S. App. LEXIS 6405 (5th Cir. Mar. 26, 2012) The Fifth Circuit opined that the spar was not a Jones Act vessel because the spar was permanently affixed to the sea floor and could only be moved after detaching the substantial moorings and pipelines that were joined to its structure. A relocation study showed at most that the spar was theoretically capable of maritime transportation but not practically capable, as the Defendant had no plans to move the spar, but doing so would take approximately 50 days and cost over $42 million.

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011):

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011) Cruise line have unlimited duty to warn passengers? During the time that the cruise ship was anchored in Cabo San Lucas on Mexico's Baja Peninsula, Plaintiff and his family visited nearby Lover’s Beach on their own upon suggestions of ship’s staff. Plaintiff was seriously injured by turbulent wave action while in the Pacific Ocean at Lover’s Beach.

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011):

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011)

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011):

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011) Plaintiff sued Defendant alleging the cruise line breached its duty to warn him of the dangers associated with swimming at the beach. According to Defendant, approximately 96,000 passengers sailed on their ships calling on Cabo San Lucas in 2008, no injuries reported. Plaintiff retained two experts to provide evidence that swimming in the water on the Pacific Ocean side of the beach was commonly known throughout the cruise-line industry to be dangerous.

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011):

Samuels v. Holland Am. Line-USA, Inc., 656 F.3d 948 (9th Cir. 2011) The district court struck Plaintiff’s experts and granted summary judgment holding Defendant had no duty to warn Plaintiff because the conditions were open and obvious and because there was no evidence of particularly hazardous conditions or of prior accidents at that location. Ninth Circuit opined it was not an abuse of discretion to strike experts' declarations because one expert was unable to provide any materials from the cruise-line industry to support his statement and he did not contact any other comparable cruise lines to inquire whether they warned passengers while the other expert failed to specify in her declaration what information she relied on in reaching her conclusions. The Court further opined that Defendant had no duty to warn Plaintiff about swimming at the location because it had neither actual nor constructive notice of a dangerous condition.

NEW CASES:

NEW CASES United States v. California State Lands Commission, No. 10-56568 (9 th Cir., June 12, 2012) Exercise of eminent domain by federal government extinguishes the state’s public trust rights. Ceres Gulf v. Plaisance , No. 11-60456 (5 th Cir., June 4, 2012) While the petitioner in a LHWCA claim enjoys a presumption in favor of the validity of his claim, he always bears the burden of proof once the employer introduces substantial evidence to overcome that presumption. Gulf Restoration Network v. Salazar, No. 10-60411 (5 th Cir., May 30, 2012) Environmental advocacy groups could not challenge Dept. of the Interior’s approvals of deepwater drilling since they did not participate in administrative proceedings i.e. public comment period. Atchafalaya Basinkeeper v. Chustz , No. 11-30471 (5 th Cir., April 25, 2012) Private causes of action brought by citizens for alleged violations of a federal statute are not to be inferred and are only allowed if clearly authorized by Congress.

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Joe Terry, co-founder of Terry & Thweatt, P.C., where he focuses his national practice on representing individuals involved in maritime and offshore accidents, 18-wheeler accidents, burn and brain injury matters as well as serious personal injury and wrongful death matters. Joe has extensive trial experience and has obtained a number of substantial verdicts and settlements for his clients, including numerous multi-million dollar recoveries.

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