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Tag Archives: Jim Bercaw

When In Doubt, File the Limitation Complaint (Part III): The Test Is Reasonable Possibility

Posted in Maritime Law

On December 3, 2014, the Fifth Circuit, in In re:  RLB Contracting, Inc., No. 14–40326 (5th Cir. Dec. 3, 2014), concluded that an ongoing exchange of correspondence between counsel for a dredge involved in a maritime casualty and counsel for the wrongful death and personal injury claimants satisfied both prongs of the “reasonable possibility” test… Continue Reading

UPDATE: Punitive Damages for Jones Act Seamen are not “Pining for the Fjords, they’re Dead”!

Posted in Jones Act

On September 25, 2014, the en banc Fifth Circuit, in McBride v. Estis Well Serv., L.L.C., No. 12-30714 (5th Cir. Sept. 25, 2014), concluded in a brief opinion that the Supreme Court’s decision of Miles v. Apex Marine Corp., 498 U.S. 19 (1990), and its limitation on recovery to pecuniary damages, precluded Jones Act seamen… Continue Reading

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… Continue Reading

But I’m Not Dead Yet! Punitive Damages for Unseaworthiness Claims Live On

Posted in Jones Act, Maritime Accidents

The U.S. Fifth Circuit Court of Appeals recently concluded that Jones Act seamen can recover punitive damages for their employer’s willful and wanton breach of the general maritime duty to provide a seaworthy vessel, in McBride v. Estis Well Serv., L.L.C., No. 12 – 30714 (5th Cir. Oct. 2, 2013). The jurisprudential history behind this result… Continue Reading

I’ll Take “Not a Vessel” for $600, Alex: What Is a Tension Leg Platform?

Posted in Jones Act, LHWCA, Offshore Oil

In the wake of the revisited tests of vessel status by the Supreme Court in Stewart vs. Dutra Construction Company, 543 U.S. 481 (2005) and Lozman v. City of Riviera Beach, Fla., 133 S.Ct. 735 (2013), it remains to be seen whether floating oil and gas production structures, such as SPARS and tension leg platforms (“TLP”),… Continue Reading

The Fifth Circuit Restates Three Duties Vessel Owners Owe Longshore Employees

Posted in LHWCA, Ports & Cargo Shipping

Under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), a vessel owner owes three duties to longshore employees. In October 2012, the Fifth Circuit granted a summary judgment dismissing serious personal injury claims a cargo supervisor filed under LHWCA because the defendants had not breached any of these three duties. In doing… Continue Reading

11th Circuit Approves Pro Rata Apportionment to Plaintiff and Intervenors of Attachment Costs

Posted in Marine Services, Maritime Contracts, Ports & Cargo Shipping

In the unpublished opinion of  Adams Offshore, Ltd. v. Blake Marine Group, No. 11-12753 (11th Cir. Apr. 27, 2012), the Eleventh Circuit Court of Appeals adopted the Fifth Circuit’s suggestion in Beauregard, Inc. v. Sword Servs., L.L.C., 107 F.3d 351, 353 n. 8 (5th Cir. 1997), and affirmed the district court’s allocation of costs to… Continue Reading

What’s done cannot be undone: The perils of e-mail confirmations of payments for vessel necessaries

Posted in Marine Services, Maritime Contracts, Ports & Cargo Shipping

Most contracts for the sale of goods and services contain a standard provision regarding the application of payments on overdue accounts, such as:  “When more than one invoice is past due at the same time, Seller shall be entitled, at its sole discretion, to specify the particular invoice to which any subsequent payment shall be… Continue Reading

If in Doubt, File the Complaint for Limitation of Liability

Posted in Jones Act, Marine Services, Maritime Contracts, Ports & Cargo Shipping

One of the recurring issues in handling maritime wrongful death and personal injury claims is determining what information is sufficient to start the vessel owner’s six-month deadline to file a complaint seeking exoneration or limitation of liability under the Shipowners’ Limitation of Liability Act, 46 U.S.C. § 30501 et seq. from that claim.  It is… Continue Reading

When No Privity of Contract Qualifies as “Any Contractual Relationship” under OPA

Posted in Marine Services, Maritime Contracts

Transactions to procure supplies for vessels engaged in international trade typically involve numerous international and local brokers, agents and contractors.  The vessel operator or charterer will place an order for supplies with a broker.  The broker locates a seller with the best price and reputation in the vicinity of the vessel.  The seller makes arrangements… Continue Reading

Supreme Court Extends the Scope of the Outer Continental Shelf Lands Act Landward

Posted in Marine Services, Maritime Contracts, Offshore Oil, Ports & Cargo Shipping

The United States Supreme Court, in Pacific Operators Offshore, LLP v. Valladolid, concluded that the widow of an employee who suffered fatal injuries on shore may still recover LHWCA benefits pursuant to OCSLA if her husband’s death had a “substantial nexus” to his employer’s oil and gas operations on the OCS.  This is an unexpected… Continue Reading

U.S. Fifth Circuit Clarifies the Role of the Collateral Source Rule with a Seaman’s Recovery of Cure

Posted in Jones Act, Marine Services, Ports & Cargo Shipping

A recurring issue in personal injury litigation is the amount of medical expenses a plaintiff is entitled to recover from the defendant.  The health care providers charge or bill the plaintiff for the treatment provided, but typically accept as payment in full significantly less from health insurers or the government.  The health insurers or government… Continue Reading

Fifth Circuit Focuses on Manning Requirements and Charter Arrangements for Foreign Floating Rigs

Posted in Marine Services, Offshore Oil

The U.S. Fifth Circuit, in Brown v. Offshore Specialty Fabricators, Inc., No. 10-40936 (Nov. 23, 2011), recently addressed the confluence of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), the Outer Continental Shelf Lands Act (“OCSLA”), the Immigration and Nationality Act (“INA”), and “foreign control” exemptions from the OCSLA manning requirements that had been issued… Continue Reading

Coast Guard proposes changes to Inspection of Towing Vessels regulations

Posted in Energy, Maritime Contracts, Offshore Oil, Ports & Cargo Shipping

The U.S. Coast Guard has proposed significant changes to the regulations concerning the Inspection of Towing Vessels and arguably eliminating the class of vessels formerly known as uninspected towing vessels.  The Coast Guard has established a deadline of December 9, 2011, to receive public comments, which can be made at the following link:  www.regulations.gov and… Continue Reading