Greek Shipowner TaxGreek shipowners have agreed to extend a voluntary tax contribution to the Greek government, which I previously blogged about, for an additional year due to the fact that Greece is still struggling with its debt crisis. Members of the Union of Greek Shipowners (UGS) approved the extension of the agreement for the voluntary tax payments, which was originally signed in 2013 and was set to expire at the end of 2017. The current measure will extend the agreement with the Greek state until the end of 2018.

In 2013 it was agreed that shipowners would make a total of $530 million in contributions, in addition to the tonnage tax which they are already required to pay along with other taxes, over a four year period. We will wait and see if this generous voluntary contribution will help the Greek government achieve its fiscal targets.

Joanne Mantis Attorney New Orleans

Guest blogger Joanne Mantis is a multilingual attorney in the New Orleans office of King, Krebs & Jurgens. She is admitted to both the Louisiana and Greek Bar, and represents a variety of clients both domestically and internationally. 

 

energy service contracts work bargeIn 1990, the U.S. Fifth Circuit rendered its decision in Davis & Sons, Inc. v. Gulf Oil Corp., through which the Court attempted to harmonize the existing state of the law to determine whether a contract to supply a work barge and crew to service various wells, tanks and flowlines within the Black Bay oilfield in Louisiana’s territorial waters was maritime or not. This gave rise to the following “decision tree” in analyzing whether other energy services contracts involving vessels were maritime: (1) had the jurisprudence already determined the issue and, (2) if not, did the analysis of six factors provide the solution as to whether the contract is maritime. Legal scholars and the Fifth Circuit decried the inconsistencies in the subsequent decisions as to whether various types of contracts were maritime or not. The outcome of the analyses often decided whether the contractual indemnity and insurance terms were enforceable under the general maritime law or void under anti-indemnity statutes. Contracting parties were dismayed by the unpredictability of the result absent litigation.

All that may soon change. In Larry Doiron, Inc. v. Specialty Rental Tools & Supply, L.L.P., No. 16-30217 (5th Cir. 2017), the Fifth Circuit undertook the Davis & Sons analysis and affirmed the district court’s summary judgment that a contract to perform flow–back services to improve performance of a natural gas well, which eventually required the use of a crane barge, was a maritime contract, and thus the indemnity terms were interpreted and enforced under the general maritime law. However, Judge Davis issued a special concurring opinion, in which he urged the en banc Fifth Circuit to throw the Davis & Sons test overboard and thereafter simplify the test for when a contract is maritime or not, as follows: whether the contract’s primary purpose is to provide services aboard a vessel located on navigable waters, which services promote or assist in oil or gas drilling or production. The petition for rehearing en banc remains pending as of this writing.

Last Employer Rule in Occupational DiseaseOn May 17, 2017, the United States Court of Appeals for the Fifth Circuit rendered a decision affirming an Administrative Law Judge’s decision in Bollinger Shipyards, Inc., et al. v. Director, OWCP, et al., No. 16-60370.  This matter arose as a claim filed under the Longshore and Harbor Workers’ Compensation Act, 33 USC § 901 et. seq.  The plaintiff, Kenneth Worthy, filed a claim against his past employer, Bollinger Shipyards, Inc., for an occupational illness as a result of exposures to hazardous substances, including welding fumes, sandblasting dust, industrial cleaning solvents and other fumes and chemicals resulting in a diagnosis of chronic, obstructive pulmonary disease (COPD).

After a number of years working as a welding supervisor occasioning his exposure to the above-noted fumes, Mr. Worthy was examined by a physician in 2008, who indicated that he could no longer wear a respirator, as required by his job, due to airway obstruction. Mr. Worthy had been out of work due to other injuries at that time, and upon his attempt to return to work after recovering from these injuries, Bollinger required him to be again examined with regard to his pulmonary condition. On March 22, 2010, the company physician, Dr. Bourgeois, diagnosed Mr. Worthy with COPD based upon the results of a pulmonary function test. At that time, Mr. Worthy was told by the physician that he could not return to work and was advised to see a pulmonologist. It was also recommended that he apply for Social Security Disability.  Instead of doing this, Mr. Worthy applied for work with a separate employer and worked as a welding supervisor from March 29 – May 18, 2010, when he was fired for sleeping on the job.

After Mr. Worthy filed his claims against Bollinger for his respiratory condition, he was seen by yet another physician that performed a further pulmonary function test which gave similar results as were obtained in March 2010. This doctor also indicated to Mr. Worthy that he could not return to any job that exposed him to fumes or dust.

At the trial of the matter before an Administrative Law Judge, Bollinger asserted that it was not liable for Mr. Worthy’s occupational disease due to the fact that Mr. Worthy was exposed to further lung irritants while in the employ, however short-lived, of a later maritime employer. The issue presented addressed the application of the “last employer rule” as defined by the Second Circuit’s widely-adopted rule in Travelers Insurance v. Cardillo, 225 F.2d 137 (2nd Cir. 1955).  Under this rule, the responsible employer in occupational disease cases is the last employer during whose employment the claimant was exposed to injurious stimuli, prior to becoming aware that he was suffering from an occupational disease.

The application of this rule usually arises in the situation where the individual has terminated his employment as a result of a diagnosis identifying a disability and limitations precluding the claimant’s continued work. In the instant, however, after Mr. Worthy was diagnosed with COPD, he sought and obtained further employment for several months performing similar duties as he had for Bollinger. Under these facts, Bollinger argued that the ALJ should have focused solely on the date of disability (last date of employment) to determine the last responsible employer, citing Liberty Mutual Insurance v. Commercial Union Insurance, 978 F.2d 750, 756 (1st Cir. 1992). The Fifth Circuit determined that it did not need to address the situation when diagnosis and disability dates were different because the Administrative Law Judge found that both of these events occurred on March 22, 2010, and this issue was not truly raised by Bollinger before the Benefits Review Board, and was therefore forfeited.

Bollinger also attempted to avoid liability by asserting that Mr. Worthy’s pulmonary condition was made worse after his brief stint of work with the subsequent employer based upon a post-employment pulmonary function test indicating a decline in pulmonary functioning. The Fifth Circuit, noting the standard discretion applied to fact finding of an ALJ, refused to accept this prong of Bollinger’s appeal and indicated that the ALJ was not convinced by the evidence submitted by Bollinger supporting this conclusion.

Jones Act RJSIn a move hailed as a win for international offshore marine contractors and oil companies operating in the Gulf of Mexico and decried as a setback for domestic shipping interests, the U.S. Customs and Border Protection (“CBP”) has withdrawn its proposal to modify and revoke certain previous interpretations of the Jones Act relating to articles and equipment carried on vessels for use in offshore oil and gas operations. The CBP’s May 10, 2017 action halts further consideration of an action that was hotly debated and could have had a significant impact on foreign-flag vessel operations in the Gulf.

The Jones Act restricts the transportation of merchandise between points in the United States to coastwise-qualified U. S.-flag vessels. By application of the Outer Continental Shelf Lands Act, this restriction extends to structures affixed to the seabed on the U. S. Outer Continental Shelf in connection with the specified activities, including exploration for or production of oil and gas. A key exception, widely relied upon by international marine contractors and their oil company customers, relates to the transportation of “vessel equipment,” which includes articles used in “furtherance of the mission” or “fundamental to the operation of” a vessel. Carriage of this “vessel equipment” is not restricted to U.S.-flag vessels and instead may be done by foreign-flag vessels.

The CBP’s original January 18, 2017 proposal would have modified a 1976 ruling concerning the applicability of this exception to a dive support work barge engaged in the construction, maintenance, repair and inspection of offshore petroleum-related facilities. The CBP proposed to rewrite that ruling on the basis that it was inconsistent with the Jones Act. CBP also planned to revoke or modify almost 30 other rulings interpreting the applicability of the Jones Act to numerous operations including pipe and cable laying, well stimulation, lift boats, and sub-sea construction.

CBP’s retreat was perhaps foreshadowed by the agency’s February 8, 2017 extension of the comment period through April 18, 2017.  It also highlights the ongoing battle between domestic and foreign operators in the Gulf of Mexico, with the former contending that the CBP’s stricter interpretation of the coastwise laws would create jobs and stimulate economic activity in the Gulf, and the latter arguing to the contrary on both points and also citing the lack of Jones Act-qualified vessels to do the work that the foreign flagged vessels would be precluded from doing.  The move also was viewed by some as another example of the Trump administration’s reversal of executive action by the outgoing Obama administration.

This regulatory skirmish points up the need for vessel operators and the companies that employ them in the Gulf of Mexico to make sure they are complying with the complicated web of interpretations of the Jones Act when planning new projects and other operations in the Gulf.  As illustrated by Furie Operating Alaska’s recent agreement to pay a $10 million penalty, if operators overlook, or worse, as was alleged in Furie’s case, intentionally violate, the Jones Act, they do so at their peril.

2017 Longshore Conference

The 2017 Annual Longshore Conference was held last week at the Intercontinental Hotel in New Orleans. The annual conference, which is presented by Loyola University New Orleans College of Law in conjunction with the U.S. Department of Labor, is a two-day program/CLE for maritime practitioners and industry professionals handling claims arising under the Longshore and Harbor Workers’ Compensation Act (LHWCA), Defense Base Act (DBA) and other extension acts.

This year’s programming kicked off with a session dedicated to recent decisions under the LHWCA, including a discussion of Bis Salamis Inc, v. Dir. Office of Workers’ Comp. Programs, 819 F. 3d 116 (5th Cir. 2016), a Fifth Circuit case regarding the effect of a claimant’s credibility (or, more accurately, lack thereof) on establishing causation. The Bis Salamis case was the subject of an earlier Offshore Winds blog post by Doug Matthews. Day One’s programming continued with a question and answer session with the Office of Administrative Law Judges, who discussed case assignments and allotments, how the various district offices operate, and provided guidance in practicing before the OALJ. The ALJs took questions from audience members, several of which were directed to what lawyers can do to help speed up the process of judicial decision-making in claims before the Department of Labor. The (not-so-helpful) response of the ALJs in a nutshell? Write better and more concise briefs.

Following the ALJs were presentations on the interplay between other benefits schemes (such as state workers’ compensation statutes) and the LHWCA; trends and forecasts in DBA claims and the business of military contracting in general; and an eye-opening presentation regarding pain management and the opioid crisis in America. Day Two included presentations addressing several other timely topics of interest to Longshore and DBA practitioners, including Section 22 modifications and trends, professionalism in settlement negotiations, and a panel of District Directors of the Office of Workers’ Compensation Programs, who discussed practicing before the OWCP.

Some takeaways from the Conference:

  • The issue of whether a particular claimant was injured on a covered situs under 33 U.S.C. § 903(a) continues to be frequently litigated, and often turns on whether the claimant’s injury occurred in an “adjoining area” within the meaning of the Act;
  • Similarly, while the issue of whether a structure is a vessel under the LHWCA continues to be frequently litigated, it is becoming more well-settled that a very large tension leg platform is not a vessel, due to the lack of self-propulsion, steering mechanism, and rudder, and its dedicated time on site; and
  • Under the LHWCA, traumatic injuries get a one year statute of limitations; but occupational diseases get a two year statute of limitations. With respect to claimants experiencing delayed expression PTSD, it can be difficult determining which limitations period applies.

The Loyola Longshore Conference is held annually in New Orleans.

Bosarge v. Cheramie MarineIn defending personal injury claims, defendants frequently have to deal with jury interrogatories that infer the plaintiff actually experienced an incident that caused or contributed to his complaints, despite there being a question as to whether an incident occurred. For example, the first question the jury often is asked to answer is a variant of whether the defendant was negligent in causing plaintiff’s injuries – thereby creating the impression that a compensable accident has occurred.

In Bosarge v. Cheramie Marine, L.L.C., No. 16-30187 (5th Cir. Jan. 10, 2017), the U.S. Fifth Circuit in a per curiam decision concluded that the district court did not abuse its discretion in submitting the following interrogatory as the first question the jury needed to answer: “Do you find by a preponderance of the evidence that Plaintiff Richard Bosarge had an accident on July 18, 2014?” The evidence at trial conflicted on this point. Capt. Bosarge testified that his lower back was allegedly injured while he was in his bunk and the vessel struck a large wave. Cheramie Marine presented countervailing evidence that the waves were not violent, Capt. Bosarge stated that he thought his back was hurting from being seasick, and further that Capt. Bosarge did not report to the Master of the vessel as having had any accident at all.1 Accordingly, where there is evidence that no accident occurred, defendants now can cite to the Fifth Circuit’s Bosarge decision as authority to submit a similar jury interrogatory.

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1 Capt. Bosarge’s claim for maintenance and cure was dismissed based on the jury’s finding that he intentionally concealed material medical facts concerning his prior low back complaints in accordance with McCorpen v. Central Gulf S.S. Corp., 396 F.2d 547 (5th Cir. 1968) and its progeny.

LHWCA Psychological InjuryOn January 27, 2017, the Fourth Circuit Court of Appeals in Ceres Marine Terminals, Inc. v. Director, OWCP, (Samuel Jackson), No. 15-1041, affirmed the decisions of an Administrative Law Judge and the Benefits Review Board holding that a defense founded upon the precept of “zone of danger” was not applicable under the LHWCA. It further agreed with the courts below that the opinion of an independent medical examiner appointed by the District Director’s Office carries no greater weight than do other medical opinions.

This case arises out of a tragic work-related accident where Samuel Jackson, a longshoreman, was operating a fork lift when it accidentally struck and killed a co-worker. The accident was very gruesome in nature. Subsequently Mr. Jackson sought psychological care and was diagnosed with post-traumatic stress disorder (PTSD). After seeing several medical care providers for his psychological condition, the employer requested that the claimant be examined by a medical care provider of its own choosing. That provider, a psychiatrist, also diagnosed the claimant with PTSD and felt that he was being under medicated. As a result of this opinion with regard to the appropriate level of medication, the District Director’s Office appointed an independent medical examiner who, after reviewing the claimant’s injuries, felt that since the claimant did not experience a threat to himself and was never in danger of injury that PTSD was an inappropriate diagnosis. He further felt that the claimant showed significant evidence of malingering. Based upon this opinion, the employer terminated compensation, after which Mr. Jackson filed a claim under the LHWCA.

At the trial of the case, the employer asserted that the claimant could not recover for psychological injury unless he sustained a physical injury or was placed in immediate risk of harm. In so many words, the claimant did not meet the “zone of danger” test for compensability that was first enunciated in Consolidated Rail Corporation v. Gottshall, 114 S.Ct. 2396 (1994). After trial, the Administrative Law Judge rejected this test indicating that Longshore Act case law had established that a claimant can obtain benefits for a work-related psychological injury, and to carve out a negligence law-based exception would be inappropriate. The judge also rejected the employer’s assertion that the Department of Labor-appointed IME psychiatrist opinion should carry more weight than the opinions of medical care providers holding contrary opinions.

The employer appealed to the Benefit Review Board which affirmed the two findings of the Administrative Law Judge and a petition was filed with the Fourth Circuit seeking review. The Fourth Circuit affirmed the two courts below on both issues. The Court rejected the employer’s assertion that Mr. Jackson could not, under the LHWCA, recover for psychological injury unless he sustained a physical injury or was placed in immediate risk of physical harm. It considered that the employer was misapplying the holding of the Consolidated Rail case, which involved a claim that arose under the Federal Employer’s Liability Act (FELA) and addressed principles of negligence. It further explained that the LHWCA did not distinguish between psychological and physical injuries, and simply used the word injury when addressing compensability. The Court found that nowhere in the statute was there a requirement, as suggested by the employer, that psychological injuries be accompanied by actual or threatened physical harm. It felt that Congress could have easily written the statute to contain such a requirement, but did not. On review of other case law, the Court also found that actual or threatened physical harm had never been mandated as a prerequisite for coverage of a psychological injury.

In affirming that decisions of the Administrative Law Judge and BRB insofar as the weighing of an independent medical examiner’s opinion, the Court stated that the specific portion of the LHWCA, 907(e), did not address the weight to be applied to the opinion of an independent medical examiner appointed by the Department of Labor, and therefore, determined that the independent medical examiner’s opinion must be weighed along with the other medical opinions of record without added weight.

canstockphoto24924390In Seaboard Spirit LTD, et al. v. Antwon Hyman, et al., No. 15-12953, an unpublished opinion issued by the Eleventh Circuit on December 5, 2016, the Court of Appeals reversed a District Court’s opinion that had expanded a vessel owner’s liability to a longshoreman that has traditionally existed under 33 USC § 905(b) to also include a separate cause of action under 33 U.S.C. § 933. This decision fosters the precept that when a vessel is involved with an injury with one covered by the Longshore and Harbor Workers’ Compensation Act, 33 USC § 901 et seq. (LHWCA) the injured plaintiff’s cause of action is solely governed by 33 USC § 905(b).

When injured in the course and scope of his employment a longshoreman is provided compensation benefits pursuant to the LHCWA from his employer. The liability of the employer is one that is set by statute without a determination of fault. Where the longshoreman’s injury is brought about due to the negligence related to the operation of a vessel, he can additionally sue the owner of the vessel pursuant to 33 USC § 905(b), whether the vessel is owned by his employer or another party. Furthermore, if a non-vessel owner/third party’s negligence has caused his injury, the longshoreman is provided a right to sue for damages under 33 U.S.C. § 933.

In the instant case, the longshoreman in question, Mr. Hyman, was killed while involved in unloading operations aboard the M/V SEABOARD SPIRIT in the Port of Miami on May 4, 2011. The M/V SEABOARD SPIRIT was a RO/RO vessel that allowed for containers on chassis to be rolled on and off the vessel in the loading operations. The M/V SEABOARD SPIRIT had been loaded with cargo containers on chassis in the Bahamas on May 3, 2011. Once the containers were aboard the vessel, the vessel crew proceeded to attach lashing chains to secure the cargo for its sea voyage. The securing of containers was a job that would normally be performed by stevedores/longshoremen.

During the unloading operation of the M/V SEABOARD SPIRIT in the Port of Miami, Mr. Hyman was killed while working for the unloading stevedore when a chassis shifted during unloading and caught Mr. Hyman in a pinch point between the container and the side of the vessel.

The owners of the M/V SEABOARD SPIRIT filed a petition under the Limitation of Liability Act in which the heirs of Mr. Hyman made a claim under § 905(b) in addition to asserting a claim under § 933. In the latter assertion it was alleged that because the M/V SEABOARD SPIRIT’s crew secured cargo in the Bahamas, the owner of the M/V SEABOARD SPIRIT, in addition to being an owner, also acted as and assumed the duties of an on-loading stevedore. In this setting, the District Court ultimately determined that the heirs of Mr. Hyman had stated a claim against the vessel owners separate and apart from their status as owners of a vessel and one that could be recognized outside of the limitation proceeding and under § 933 due to their status as a loading stevedore.

The § 905(b) action was tried in the limitation proceeding after which the District Court ruled in favor of the ship owner, but it additionally found that the plaintiffs could proceed in a separate action against the vessel owner as on-loading stevedore under § 933.

This was appealed to the Eleventh Circuit. In review of prior precedent, the Eleventh Circuit found no case law that would allow a vessel owner to be sued separately in a different negligence action other than that provided for in 33 U.S.C. § 905(b) for any fault it may have had as an on-loading stevedore. It did note that a number of cases have found that the ship owner who participated in stevedoring operations would be held to a higher standard of negligence than that provided under the Supreme Court case of Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156 (1981). It observed that the plaintiffs did not argue that the District Court should be reversed for not applying the higher standard of care to their § 905(b) claims as it applied to the ships stevedoring operations, and therefore, they had abandoned that argument.

collateral-source ruleThe Fifth Circuit issued an opinion on November 17, 2016, in Robert Deperrodil v. Bozovic Marine, Inc., (No. 16-30009). In a case involving the injury to a passenger aboard a crew boat in high seas, the District Court was called upon to determine whether under the collateral-source rule the plaintiff could recover $186,080.30, which was the amount billed for his medical care, rather than the amount that the insurer was eventually required to pay, $57,385.50, the balance having been written off. Generally the collateral-source rule bars a tortfeasor from reducing his liability by the amount the plaintiff recovers from independent sources. It is a substantive rule of law, as well as an evidentiary rule that disallows evidence of insurance or other collateral payments that may influence the fact finder.

The Fifth Circuit determined that there was no direct authority in the maritime tort context regarding the treatment of written off medical expenses for which liability existed under the Longshore and Harbor Workers’ Compensation Act (LHWCA) 33 USC 901 et. seq. It evaluated the law in its circuit and determined that Mississippi, Louisiana and Texas all had different approaches. The court then reviewed the Fifth Circuit decision in Manderson v. Chet Morrison Contractors, Inc., 666 F.3d 373, 381 (5th Cir. 2012), in which the question was whether the collateral-source rule allowed recovery of written off medical expenses when an employer paid the expenses as part of its maritime cure obligation.  In that case, about which Offshore Winds reported at the time, the Court held that it was error to award the amount charged rather than the amount that was paid.

The Court, in the instant case, while feeling that Manderson was not binding as it involved maritime cure and not a maritime tort or LHWCA insurance, the court considered that this was the most applicable of the various approaches to write-offs. It also felt that the rationale in Manderson was very persuasive because maritime cure and LHWCA insurance create similar obligations for employers. In so doing, it determined that LHWCA medical-expense payments are collateral to a third-party tortfeasor only to the extent paid; in other words, under those circumstances, the plaintiff may not recover for expenses billed, but not paid.

ALI-MLALast week, 425 admiralty and maritime lawyers, law professors, U.S. Coast Guard officers, law students, and maritime industry professionals descended on New Orleans for the Golden Rules: Tulane Admiralty Law Institute and Maritime Law Association’s 50-Year Reunion. The event kicked off Wednesday morning at the New Orleans Board of Trade. The morning CLE program included a 50 year retrospective on marine insurance, followed by programs regarding maritime bodily injury and death. The first was moderated by Patricia Krebs, and featured a discussion of, among other things, strategies for defense counsel to reduce wage bases for claims of future wage loss in maritime employment. It was followed by a presentation on the Federal Arbitration Act, which included an analysis of some interesting recent cases arising in the cruise ship context regarding enforcement of arbitration clauses in U.S. seaman contracts, and the viability of post-injury arbitration agreements. Wednesday afternoon was dedicated to meetings of various committees of the MLA, including the Joint Marine Financing, Marine Bankruptcy, and Practice and Procedure Committees. The evening was capped off with a reception at the Cabildo on Jackson Square.

Thursday morning’s programming included a CLE on professionalism, with Judge Hanks of the Southern District of Texas and Magistrate Judge Knowles of the Eastern District of Louisiana as panelists, followed by presentations on marine finance and liens, collision, limitation of liability and salvage. As was the case Wednesday, Thursday afternoon was dedicated to meetings of committees of the MLA, including the Stevedores, Marine Terminals & Vessel Services Committee, held in the offices of King, Krebs & Jurgens, one of the meeting’s sponsors. Thursday evening provided an opportunity for a variety of social events, including a lively reception at Pat O’Brien’s, jointly hosted by the Young Lawyers Committees of the MLA and ALI.

The events concluded on Friday, with CLE programs in the morning on international law, the past and future of shipping, pollution, and ethics. The general meeting of the MLA was held in the afternoon at McAlister Auditorium, amidst the excitement of homecoming on Tulane’s campus. The week’s programming ended with a well-attended cocktail reception and formal dinner at the Audubon Tea Room.

The CLE programs and committee meetings provided a variety of interesting and useful insights into recent developments in the maritime world. A few examples:

  • Although the Federal Arbitration Act expressly excludes contracts of employment of U.S. seamen, rendering arbitration clauses in such contracts generally unenforceable, several courts have recently enforced arbitration clauses in U.S. seamen contracts when “performance is envisioned abroad.” See, e.g., Alberts v. RCCL, 2016 U.S. App. LEXIS 15502 (11th Cir. Aug. 23, 2016).
  • The impact of the Zika virus on the cruise line industry is ramping up. For example, in early August 2016, the shares of three major cruise lines fell the day after an advisory from the CDC was issued that warned pregnant women of the risk of Zika infection.
  • The Federal Maritime Commission has recently proposed several new rulemakings for further regulation of the marine terminal industry, driven, in great part, by actions taken and developments occurring at West Coast ports. Many parties, both ocean carriers and marine terminal operators, including the National Association of Waterfront Employers, have submitted comments to indicate displeasure with many of the proposed changes as too burdensome on the regulated parties and not providing the FMC with meaningful additional information.

When everything was said and done, attendees earned up to 975 minutes of CLE credit while meeting and reconnecting with colleagues from around the globe. It can truly be said that good times were had by all.

The next meeting of the Maritime Law Association will be held in May of 2017 in New York City.