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New Definition of Waters Protected Under the Clean Water Act Proposed

Posted in Marine Pollution

The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) have proposed a new rule defining the scope of waters protected under the Clean Water Act (CWA). The proposal sets forth several categories of waters to be included in the definition as well as established waters that are subject to the Act. This proposed rule was made in light of the Supreme Court cases in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers and Rapanos v. United States -- regarding the determination of which streams and which wetlands were subject to the Clean Water Act protection.

The goal behind the proposed rule is to minimize the number of case-by-case determinations of which waters are protected under the Act; namely on the category of waters referred to as “other waters.” The agencies propose to define waters of the United States to mean:

  • All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  • All interstate waters, including interstate wetlands;
  • The territorial seas;
  • All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
  • All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
  • All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
  • On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.

The proposed rule states that the term “significant nexus” means that a water, including wetlands, either alone or in combination with or similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a jurisdictional water body. For an effect to be significant, it must be more than speculative or insubstantial. Other waters, including wetlands, are similarly situated when they perform similar functions and are located sufficiently close together or sufficiently close to a “water of the United States” so that they can be evaluated as a single landscape unit with regard to their effect on the chemical, physical, or biological integrity of a protected water.

The proposed rule also excludes specified waters from the definition of “waters of the United States.” Some of these exclusions are:

  • Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
  • Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with the EPA.
  • Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.
  • Ditches that do not contribute flow, either directly or through another water, to a traditional navigable water, interstate water, the territorial seas or a jurisdictional impoundment;
  • Groundwater, including groundwater drained through subsurface drainage systems

Some believe the proposed rule simplifies the process of determine what waters are considered jurisdictional waters, and thereby protected by the CWA. However, others believe the proposed rule could potentially broaden what types of “other waters” next to “waters of the U.S.” are considered jurisdictional. Perhaps the more important question is, will federal courts suddenly be over flooded with new CWA cases? This debate will only be settled over time.

 

Guest blogger Krystin Frazier is an attorney in the New Orleans office of King Krebs & Jurgens focusing on environmental, toxic tort, and oil & gas matters.

 

A Beach Vacation from the Longshore Act

Posted in LHWCA

Global Management Enterprises v. Commerce & Industry Insurance Co. clarifies whether oil spill clean-up injuries are covered under LHWCA.

In an unpublished per curiam decision, Global Management Enterprises, LLC v. Commerce & Industry Insurance Company, No. 13-31249, filed June 23, 2014, Judges Davis, Benavides and Prado determined that a worker who was injured while assisting with Deepwater Horizon oil spill clean-up efforts on an island in the Gulf of Mexico was not covered under the Longshore and Harbor Workers’ Compensation Act (LHWCA). Mr. De La Cruz was allegedly injured on the beach of an unnamed Gulf island while lifting a bag of oil-contaminated sand that would later be loaded onto a truck and eventually transferred to a vessel for removal from the island. 

Mr. De La Cruz was employed by Global Management Enterprises (Global), a temporary employment agency that was insured for workmen’s compensation payments by Chartis under a policy that excluded coverage for claims under the LHWCA. Due to the fact that De La Cruz had filed, but later withdrew, a Longshore Act claim while receiving state workmen’s compensation benefits, Chartis ceased workers’ compensation payments citing their policy’s LHWCA exclusion. Global then sued Chartis seeking the state workmen’s compensation coverage that they had purchased. 

The determinative situs issue for coverage under the LHWCA was whether the site of injury was an “other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel” 33 U.S.C. § 903(a). According to the decision by the Fifth Circuit in Depot Services v. Workers’ Compensation Programs, 714 F.3d 384 (5th Cir. 2013)(en banc), a work site, to be covered by the LHWCA, must (1) adjoin navigable waters and (2) customarily be used by an employer to facilitate one of the listed maritime activities. There was no dispute that the incident occurred at a site adjoining navigable waters. The remaining question was whether the beach was a location customarily used by an employer for covered activity. The panel concluded that the site of the injury was not. There was no evidence that any loading or unloading of vessels or repair of vessels transpired at the site where the claimant was injured. 

Interestingly, Chartis argued that the beach and pier where the crew would load the oil-laden sand aboard a vessel should be considered a single area, asserting that under Coastal Production Services, Inc. v. Hudson, 555 F.3d 426 (5th Cir. 2009) the site should be seen as interconnected with the longshoring activities. The Court in examining the material facts rejected this argument, finding that the proximity of the site of injury to the vessel loading activities was not sufficient to establish it as a component of the general area used for the overall loading process. 

While some had thought that the en banc decision in Depot Services v. Workers’ Compensation Programs had completely overruled Winchester and Hudson, this panel of the Fifth Circuit indicated that Winchester and Hudson were only overruled where they are inconsistent with the adjacency standard established in Depot Services. Citing a discussion in Winchester of the functional “customary use” component of situs they indicated the previous discussion remained binding precedent.

Enforcing Foreign Judgments in U.S. Admiralty Courts: Second Circuit Prefers Substance Over Form

Posted in Maritime Contracts, Offshore Jurisdiction

After protracted and expensive litigation overseas, you obtain a judgment against the defendant. There remains one series of hurdles left to cross: the defendant refuses to pay that judgment and has no assets in the country where the litigation was conducted. However, the defendant (or possibly one or more of its numerous alter egos) has assets in the United States. What should you do to collect on the judgment? If the underlying claim would be considered a maritime claim under U.S. law, one option is filing an enforcement action in federal district court under its admiralty subject matter jurisdiction, 28 U.S.C. § 1333.

In D’Amico Dry Ltd. v. Primera Maritime (Hellas) Ltd., No. 11-3473-cv (2nd Cir. June 12, 2014), the Second Circuit concluded that U.S. district courts have admiralty subject matter jurisdiction over an action to enforce the judgment of a foreign tribunal where the underlying claim on which the judgment was rendered would be considered maritime under U.S. law. D’Amico and Primera executed a forward freight agreement (“FFA”), a futures contract (i.e., contractually enforceable wager) contingent upon the parties’ accurately predicting future market rates for the shipment of goods. Under the FFA, Primera was obligated to pay D’Amico and failed to do so. In accordance with the forum selection and choice of law provisions of the FFA, D’Amico filed suit in the Commercial Court of the Queen’s Bench Division of the English High Court of Justice, which rendered a substantial judgment against Primera.

When Primera failed to pay the English judgment, D’Amico filed suit to enforce that judgment in New York federal court under its admiralty jurisdiction. The district court granted Primera’s motion to dismiss for lack of subject matter jurisdiction because the English judgment was rendered by the Commercial Court and not the Admiralty Court and, additionally, English law would not consider D’Amico’s claim as being maritime.

On appeal, the Second Circuit concluded that the proper inquiry in an enforcement action brought under the district court’s admiralty jurisdiction was whether the underlying claim on which the judgment was based was a maritime claim under U.S. law. The Court recognized that many foreign tribunals do not have admiralty courts even though the foreign tribunals adjudicate maritime claims. Thus, whether a foreign judgment was rendered by a foreign admiralty court was of no moment. Additionally, after a review of various “theoretical and practical reasons”, the Second Circuit concluded that whether a claim is maritime should be determined under U.S. law and not the law of the foreign court that rendered the judgment that is the subject of the enforcement action.

PRACTICE NOTE:  The Second Circuit expressly distinguished its holding from the federal court’s subject matter jurisdiction over enforcement actions brought under the court’s “federal question” jurisdiction, 28 U.S.C. § 1331.  For enforcement suits based on “federal question” jurisdiction, the federal court must have a jurisdictional basis independent of the fact that the judgment was rendered by another federal court.

Offshore Acres and Leases Up for Grabs in the Atlantic Coast and Gulf Region

Posted in Offshore Wind

Bureau of Ocean Energy ManagementAs a part of President Obama’s Climate Action Plan to promote American leadership in renewable energy, and coupled with the Interior’s “Smart from the Start” wind energy initiative for the Atlantic Coast, the Interior has announced the Nation’s largest offshore wind energy area available for commercial development. The Interior and Bureau of Ocean Energy Management (BOEM) announced on 06/17/14 that more than 742,000 acres offshore Massachusetts will be available for commercial wind energy leasing. By far, this proposed area is the largest in federal waters and will nearly double the federal offshore acreage available for commercial wind energy projects.

The proposed Wind Energy Area is located approximately 12 miles offshore Massachusetts. The Bureau of Ocean Energy Management (BOEM) proposes to auction the Wind Energy Area as four leases. The proposed sale notice triggered a 60-day public comment period ending on August 18, 2014. The end of the comment period also serves as the deadline for any participating companies to submit their qualification packages. To be eligible to participate in the lease sale, the BOEM must first determine that the bidder is legally, technically and financially qualified before the Final Sale Notice is published. The BOEM strongly encourages potential bidders to submit a qualification package as early as possible during the comment period to ensure adequate time for processing.

The Gulf Region will see new lease developments as well. The Gulf Region is preparing for several sales in the Gulf of Mexico occurring in the years 2014-2017 under the Five Year Outer Continental Shelf Oil and Gas Leasing Program. Lease Sale 238, covering the Western Gulf of Mexico, is set for August 2014. This will be followed by Lease Sale 235, covering the Central Gulf of Mexico, and Lease Sale 246, covering the Western Gulf of Mexico in 2015.

 

Guest blogger Krystin Frazier is an attorney in the New Orleans office of King Krebs & Jurgens focusing on environmental, toxic tort, and oil & gas matters.

 

That’s Not My Kid! Board Clarifies Definition of “Child” under the Longshore Act

Posted in LHWCA

Smith v. Mt. Mitchell clarifies the definition of “child” under the LHWCA.

On February 25, 2014, the Benefits Review Board rendered its decision in Smith v. Mt. Mitchell, LLC, ____BRBS____ (D.O.L. Ben. Rev. Bd. Feb. 25, 2014), which affirmed an Administrative Law Judge’s decision and order, clarifying the meaning of the term “child” under the Longshore and Harbor Workers’ Compensation Act (LHWCA). The inquiry central to the Board’s decision was whether the claimant was “wholly dependent” on his father at the time of his father’s death.

The claimant’s father, the decedent, worked over thirty years as a pipefitter and welder for several maritime employers. During the span of his career, the decedent was exposed to asbestos and eventually contracted lung disease, from which he later died. Following the decedent’s death, the claimant, an adult who suffered from multiple medical conditions including Crohn’s disease, filed a claim for death benefits as a wholly dependent, disabled “child.”

The administrative law judge (ALJ) considered all available evidence regarding the claimant’s dependency and found that he did not qualify as a “child” under Section 2(14) of the LHWCA. Additionally, the ALJ found that the claimant did not qualify as the decedent’s “dependent” under Section 9(d) of the LHWCA. The claimant’s claim for benefits was ultimately denied.

On appeal to the Benefits Review Board, the claimant argued that the ALJ erred in determining that he was ineligible to recover benefits as a “child” under Section 9(b) of the LHWCA. The term “child” is defined in Section 2(14), which provides, in pertinent part, a “child” . . . include[s] only a person who is under eighteen years of age, or who, though eighteen years of age or over, is (1) wholly dependent upon the employee and incapable of self-support by reason of mental or physical disability, or (2) a student . . .” The claimant was over the age of eighteen and not a student. As such, he would only qualify as a “child” under the Act if he was “wholly dependent” on the decedent and incapable of self-support by reason of mental or physical disability.

The Board agreed with the reasoning and findings of the ALJ. Evidence showed that the claimant received Social Security disability benefits at least three times greater than the monthly expenses he received from the decedent. He alleged that he received $200 to $300 per month from his parents, but acknowledged that he received $1,357.80 per month in Social Security benefits. Despite his contention that public benefits should not be included in determining whether or not a disabled relative is “wholly dependent,” he cited no precedent that supported his assertion. To the contrary, however, case law shows that welfare benefits and other forms of government funding have been considered in determining dependency in claims for benefits. See, Doe v. Jarka Corp. of New England, 21 BRBS 142 (1988); Mikell v. Savannah Shipyard Co., 24 BRBS 100 (1990). Thus, the Board found no error in the ALJ’s inclusion of the claimant’s disability benefits in the determination of “wholly dependent” status.

In sum, where a disabled adult child seeks death benefits under Section 9(b) of the Act, one should be cognizant that any income he or she receives, regardless of the source, likely will be considered to determine “wholly dependent” status. This determination is fact specific. Should the additional income the child receives exceed the amount received from the decedent, that “surviving child” may not be considered a “child” at all.

 

Guest blogger Kourtni Mason is an attorney in the New Orleans office of King Krebs & Jurgens. She practices primarily in the area of Admiralty & Maritime law.

 

 

A SPAR Is Not a Vessel, but Is a SPAR a Building?

Posted in Offshore Oil

A SPAR has been determined to be a immoveable/building under Louisiana law.

Are SPAR platforms immoveable buildings? On April 9, 2014, Judge Rebecca Doherty issued a memorandum ruling in Hefren v. Murphy Exploration & Production Co., USA, et al., that they are, meaning in Louisiana a five-year window to bring certain personal injury claims against designers or manufacturers applies.

In issuing this ruling, Judge Doherty granted the summary judgment of J. Ray McDermott, dismissing the claims of James Hefren, an employee of Murphy Exploration and Production Company, USA (Murphy). Mr. Hefren had been injured while changing out bolts on a flange on the Front Runner, a SPAR platform located on the Outer Continental Shelf (OCS), when stored pressure was released causing serious personal injuries. J. Ray McDermott (McDermott) had designed and constructed the Front Runner. After its construction and placement on site, Murphy took delivery of it in August 2004, more than five years before Mr. Hefren’s injury.

Mr. Hefren sued McDermott for alleged failures in design and construction and in failing to provide adequate warnings relative thereto. In an earlier phase of the litigation the Court had determined the Front Runner SPAR not to be a vessel. (For more on this determination, see my earlier blog post, Jones Act Status Remains Unavailable on SPARS). McDermott filed its motion for summary judgment asserting that under La. R.S. 9:2772 the plaintiff’s claims were preempted by the passage of five years from the completion of its work. La. R.S. 9:2772 provides, in part, for a five year preemption of any personal injury claims against a designer or manufacturer arising out of “any deficiency in the performing or furnishing of land surveying services, as such term is defined in R.S. 37:682, including but not limited to those preparatory to construction or in the design, planning, inspection or observation of construction or in the construction of any improvement to immoveable property …” R.S. 9:2772 B(1)(a).

In considering McDermott’s motion Judge Doherty felt that the earlier determination that the Front Runner was not a vessel was not sufficient to establish the Front Runner as an immoveable/building to provide the basis for the application of La. R.S. 9:2772. She then proceeded to focus upon whether the Front Runner was an immovable under Louisiana law.

In its motion for summary judgment, McDermott acknowledged that the Fifth Circuit had yet to expressly hold that a SPAR is a building and/or an immoveable. In support of its argument McDermott nevertheless cited Fields v. Pool Offshore, Inc., 182 F .3d 353, 357-59 (5th Cir. 1999), which Judge Doherty felt to be particularly instructive. Although the issue in Fields was not whether the SPAR in question was a building or immoveable, the rationale underlying the determination that the SPAR was not a vessel heavily weighed upon the SPAR’s immovability.

Judge Doherty acknowledged that there was no definitive case holding that a SPAR was a building and/or an immoveable, but felt the existing case law likened a SPAR to a fixed platform, and under Louisiana law it is undisputed that a fixed offshore oil and drilling platform is a “building.” She saw no viable distinction between a fixed platform and a SPAR such as the Front Runner, as both appeared to be permanently attached to the seabed. Whatever minimal movement occurred with the Front Runner because of its flotation was not considered to refute its permanency at its location on the OCS.

Water Challenge Winner Has Big Idea for Estuary Restoration

Posted in Marine Services

Business attorney Henry King (left) and intellectual property attorney Len Brignac (right) at Gallier Hall moments after engineer Tyler Ortego (center) of ORA Estuaries won the 2014 Water Challenge.

On March 24, four local entrepreneurs competed in New Orleans’ 2014 Water Challenge, sponsored by King Krebs & Jurgens in partnership with The Idea Village and the Greater New Orleans Foundation. Now in its fourth year, this award-winning program identifies and supports entrepreneurial solutions that apply innovative approaches to how we live with and manage water in Southeast Louisiana. This year’s winner, ORA Estuaries, is a company that sells proprietary technologies developed specifically for estuary restoration.

ORA Estuaries sells the OysterBreak™, a structure designed to use an oyster’s inherent nature of clustering and shell building to further coastal protection. These structures are made of OysterKrete®, a marine-grade, cement-based material designed specifically to grow oysters. As Tyler Ortego, ORA Estuaries’ engineer put it, these cost-effective units protect coastline by “letting the oysters do the work.”

This year’s Water Challenge began in Fall 2013, when eight participating entrepreneurs began receiving resources and customized coaching to accelerate the growth of their venture. Len Brignac, an intellectual property attorney with King Krebs & Jurgens, was among those who volunteered time to coach the competitors, meeting with each entrepreneur to counsel how new companies can identify and protect their intellectual property assets.

In January 2014, the field was narrowed to four finalists, each of whom continued to receive resources and coaching to refine and strengthen their pitches. Demetria Christo of EcoUrban pitched cistern covers that help create the garden people dream of while cultivating a greener New Orleans. Julia Kumari Drapkin of iSeeChange pitched a climate almanac and information service for the 21st century. Wayne Erdman of RiverView Construction pitched an innovative fast-deploying flood barrier called the Aqua Flood Barrier™.

As winner of the Water Challenge pitch competition, ORA Estuaries will receive additional legal services and office space in King Krebs & Jurgens’ New Orleans office for one year as the firm’s Entrepreneur-in-Residence. The company can be reached at 225.372.5570 or www.oraestuaries.com.

Fifth Circuit Recognizes Compensation Lien in Jones Act Case

Posted in Jones Act

In Chenevert v. Travelers Indemnity Co., No. 13-60119 (5th Cir. March 7, 2014), the Fifth Circuit formally recognized the right of an insurer providing and making voluntary payments to an injured employee under the Longshore and Harbor Workers’ Compensation Act (LHWCA) to recover its payments from a recovery of Jones Act damages obtained by the employee for the same injury.

Mr. Chenevert was injured while an employee of GC Constructors (GC) in May of 2007. At the time of his injury, Travelers Indemnity Co. (Travelers) provided coverage to GC for Chenevert’s injury under the LHWCA. The Travelers policy excluded coverage for bodily injuries to a master or a member of crew of any vessel. Between May 2007 and May 2010, Travelers paid benefits under the LHWCA in excess of $275,000. In May of 2010, Chenevert sued GC in federal court alleging Jones Act Status. Based upon Chenevert’s claim to be a seaman, Travelers stopped making payments under the LHWCA. Travelers then put Chenevert and GC on notice that it would seek reimbursement of the amounts paid under the LHWCA from any recovery Chenevert received in his Jones Act suit. The matter was eventually settled with an amount equal to that paid by Travelers in benefits under the LHWCA placed into the registry of the Court pending a determination of whether it had a legal right to recover said amounts.

Basing his decision on the legal tenet that no right of subrogation can arise in favor of an insurer against its own insured, the Magistrate to whom this issue was assigned denied Travelers right to recoup its payments. On appeal to the Fifth Circuit, the Court felt that this rule would not apply in this factual setting as Travelers did not insure GC against Jones Act liability.

The panel cited its previous holdings in Peters v. North River Ins. Co., 764 F.2d 306 (5th Cir. 1985) (recognizing the employer/insurer’s compensation lien in a third party suit), Taylor v. Bunge Corp., 845 F.2d 1323 (5th Cir. 1988) ( recognizing insurer’s right to recovery in 905(b) claim against the employer as a vessel owner) and Massey v. William-McWilliams, Inc.. 414 F.2d 675 (5th Cir. 1969), which recognized a ship owner-employer’s right to a credit for amounts paid under the LHWCA that bear reasonable relation to the items of loss compensated under a Jones Act claim. The Court felt the right to assert a lien by Travlers as a logical extension of this line of cases and it saw no difference between the insurer in the Massey case and Travelers in the instant case asserting a lien against a 905(b) recovery as opposed to a lien against a Jones Act recovery.

Employer’s Notice of Controversion (LS-207) Does Not Eviscerate Holding of Andrepont

Posted in LHWCA

The United States Court of Appeals for the Fourth Circuit, in Lincoln v. Director OWCP (Ceres Marine Terminals, Inc.) No. 13-1594 (March 11, 2014), was recently asked to address the effect of the employer filing a notice of controversion (LS-207) on the employer’s responsibility, vel non, for the payment of the claimant’s attorney’s fees pursuant to 33 U.S.C. § 928(a). The Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., provides for fee shifting in certain circumstances where the employer can be cast for the liability of the employee’s attorney’s fees. § 928(a) provides, in part:

If the employer or carrier declines to pay any compensation on or before the thirtieth day after receiving written notice of a claim for compensation having been filed from the Deputy Commissioner, on the ground that there is no liability for compensation within the provisions of this Act, and the person seeking benefits shall thereafter have utilized the services of an attorney at law in the successful prosecution of a claim, there shall be awarded . . . a reasonable attorney’s fee against the employer or carrier . . .

Lincoln filed a claim with the District Director of the Office of Workers’ Compensation Programs on May 24, 2011, alleging that he sustained binaural hearing loss as a result of his work as a longshoreman with Ceres Marine Terminals, Inc. (Ceres). On May 26, Ceres responded by filing a LS-207, notice of controversion, with the District Director’s office claiming additional information was needed before it could determine what it believed was the correct disability payment. The information Ceres sought also included whether it was the last responsible exposing employer before Lincoln’s hearing loss was discovered. The District Director’s office formally served the notice of Lincoln’s claim on Ceres on June 14. On July 7, within 30 days of receipt of notice, Ceres made a voluntary payment to Lincoln amounting to one week of permanent partial disability payment under the maximum compensation rate applicable to the date of injury.

The parties eventually settled Lincoln’s hearing loss claim, leaving the issue of attorney’s fees and the liability therefore to be decided by the District Director. On May 15, 2012, the District Director entered a compensation order finding that Ceres was not liable for Lincoln’s attorney’s fees since it had made payment of “any compensation” within 30 days of receipt of notice of the claim from the District Director’s office. This ruling was affirmed by the BRB and appealed to the Fourth Circuit.

The Fourth Circuit in citing Andrepont vs. Murphy Exploration & Production Co., 566 F .3d 415 (5th Cir. 2009), a decision obtained by this author from the Fifth Circuit, reiterated that fee shifting under § 928(a) may not occur if the employer agrees that some amount is due the claimant for work related injury and “tenders any compensation.”

Lincoln’s attorneys argued that the filing of the controversion (LS 207) contradicted the payment made by Ceres and asserted that the payment made was therefore a mere sham to avoid fee liability. The Fourth Circuit rejected this argument indicating that § 928(a) did not address the employer’s obligation for filing a notice of controversion and contained only one explicit trigger, that being the payment of “any compensation” within 30 days of the employer’s receipt of official notice of a claim. Since Ceres met this requirement, it was entitled to the protections afforded under § 928(a).

Land-Based Jones Act Seaman Status, Emotional Damages, and the “Zone of Danger”

Posted in Jones Act

Fifth Circuit Affirms Jury Finding for Land-Based Worker to be Covered by Jones Act but Reverses Award of Emotional Damages in Naquin v. Elevating Boats LLC, No. 12-31258 (5th Cir., 3/10/14)

Plaintiff, Larry Naquin, Sr., a vessel repair supervisor employed by Elevating Boats, LLC, was injured on November 17, 2009, when a shipyard crane he was operating suddenly failed, causing the boom and crane housing to separate from the crane pedestal. In addition to Mr Naquin’s injury, a relative of his was killed when the crane boom landed on a structure in which the relative was working.

Although Mr. Naquin was not assigned to any particular vessel but oversaw the repair of a number of vessels manufactured and/or owned by his employer, he was found, by a jury, to be a Jones Act seaman and was awarded significant damages, including $1,000,000 for past and future physical pain and suffering, $1,000,000 for past and future metal pain and suffering, and $400,000 for future lost wages.

The employer appealed the jury’s finding to the Fifth Circuit, asserting that Mr. Naquin had failed to establish that he was a Jones Act seaman, that the evidence was insufficient to establish the employer’s negligence, and that the District Court erred by admitting evidence of Mr. Naquin’s relative’s death in regard to his claim for damages.

A split Fifth Circuit decision on the issue of status authored by Judge W. Eugene Davis affirmed the jury’s determination. The majority indicated that in accord with established precedent, Mr. Naquin could be considered to be assigned to and in the service of an identifiable fleet of vessels owned by his employer to which he spent approximately 70% of his time in the maintenance thereof. In dissent Judge Jones questioned how a land-based employee whose work was primarily on vessels docked for repair or maintenance could be exposed to the perils of the sea and be said to be in the service of a vessel in navigation. She suggested that under the majority’s rationale any land-based worker, even one hired to fuel the boats at the employer’s dock, could qualify as a seaman.

The employer also complained that the jury finding of negligence was one that was solely built upon circumstantial evidence and that there was no direct evidence indicating that the employer caused or could have foreseen the accident. The panel pointed out that the crane in question was manufactured, maintained and owned by the employer, and although Mr. Naquin could not prove precisely why a weld had failed, it was undisputable that the employer was the party who was responsible for the design of the crane and the integrity of the weld.

The panel however reversed the jury finding on damages on the basis that emotional damages are not recoverable under the Jones Act unless the plaintiff is considered to be within the “zone of danger.” While Mr. Naquin was within the “zone of danger” insofar as his own injuries were concerned, the Court questioned whether he could assert a claim for emotional harm arising from the injury to and death of his relative. In determining that this was not a recoverable element of damages under the Jones Act, the Court felt that the presentation of evidence with regard to the death of the relative so pervaded the other elements of damages that it reversed the complete damage award, remanding the matter for a trial on the sole issue of damages.