Maritime Personal Injury

The U. S. Fifth Circuit recently held that an injured seaman was precluded from recovering maintenance and cure where he intentionally provided false information during a pre-employment physical conducted by a previous employer that was later acquired by his current employer. Although the current employer did not conduct its own pre-employment physical, the Fifth Circuit found that under the particular circumstances presented (i.e. when a company purchases another entity and keeps the predecessor’s seaman in its employ) a re-examination of the seaman was not required. The holding, Meche v. Douret, et al., No. 14-30032 (5th Cir. Jan. 22, 2015) does not change prior case law holding that misrepresentations made to unrelated previous employers will not impact the seaman’s right to recover. However, the case is a conservative extension of the McCorpen rule, as articulated in McCorpen v. Central Gulf Steamship Corp., 396 F.2d 547 (5th Cir. 1968), which is one of the few vehicles a maritime employer or ship owner can use to defeat a maintenance and cure claim. In order to establish a McCorpen defense, the employer/ship owner must show:

  1. An intentional misrepresentation regarding medical history;
  2. The misrepresentation was material to the decision to hire; and
  3. A connection between the misrepresentation and the injury complained of. (See also Brown v. Parker Drilling Offshore Corp., 410 F.3d 166, 171 (5th Cir. 2005).)

In Meche, as in many other cases, the seaman had filed several prior lawsuits related to the same condition (low back injury). However, the seaman falsely stated in his pre-employment medical history questionnaire that he had no such problems with his back or any illness, injury or claim arising out of his previous employment.

Meche argued that he did not intentionally conceal his prior medical history because his daughter actually filled out the form and he did not “read and write very well.” The Court acknowledged that, where a seaman “lacks the requisite literacy skills to understand and complete the questionnaire,” his failure to disclose may not be intentional. However, in Meche it was found that the seaman did understand what was written in the form which he acknowledged through his signature.

To avoid “illiteracy” arguments in subsequent litigation, employers and owners should be mindful of the seaman’s English literacy skills when having them fill out such forms and take steps to ensure they understand the forms they are completing.

In cases where the employer does not conduct a pre-employment physical, the employee is required to disclose past illnesses or injuries only when, in the seaman’s own opinion, the employer would “consider it a matter of importance.” On the other hand, where a physical is performed, the “subjective” element is removed, and a mariner may be barred from recovery whenever he conceals material medical facts during a pre-employment physical designed to elicit such information. The McCorpen rule, and its recent extension, emphasize the importance of pre-employment physicals and detailed medical questionnaires as a means of mitigating exposure to subsequent maintenance and cure claims by seamen with sometimes lengthy histories of injury and litigation.

Attorney Mike Vincenzo
Guest blogger Mike Vincenzo is a Member in King, Krebs & Jurgens’ New Orleans office who has been defending clients in complex litigation scenarios for two decades, with a particular focus on casualty and personal injury cases in the maritime, aviation, and air medical industries. He is admitted to practice law in Louisiana.

File the Limitation ComplaintOn 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 for written notice of a claim and thereby began the six month statutory period for the dredge owner to have filed its complaint for exoneration and/or limitation of liability. These issues have been previously explored in this Blog in 2012 and in 2013.

To satisfy the “reasonable possibility” test sufficiently to start the six month period, the correspondence to the vessel owner (or its counsel) must convey a “reasonable possibility” that a potential claim exists and a “reasonable possibility” that the amount of the claim might exceed the value of the vessel. The court observed that no magical language is necessary and that the vessel owner, not the dead or injured claimants, bears the risk in the event of a wrong guess or a tactical error.

It should be noted that from a procedural perspective, the Fifth Circuit affirmed the district court’s judgment of dismissal under the de novo standard. The failure to timely file the Limitation Complaint is a jurisdictional defect, subject to de novo review, even though the “reasonable possibility” inquiries are fact–intensive and based on the circumstances of the case. Because the district court considered matters outside of the pleadings, it had applied a summary judgment procedure in its analysis of the correspondence exchanged between counsel. Summary judgments likewise are subject to a de novo standard. For good measure, the Fifth Circuit concluded that its review of the record did not reveal any dispute of material fact and thus summary judgment was procedurally proper.

Vessel owners should take note: the correspondence from claimants’ counsel is sufficient to start the six month period to file a limitation complaint, regardless of when the claimants ultimately decide to file suit. Once more, we stress what by now should be obvious – when in doubt, file the complaint for limitation.

NOTE: This post was authored for the firm by Spencer Sinclair, a Tulane Law School student who spent part of his summer working at King, Krebs & Jurgens. — JAD

Stress and the Jones Act
The Eleventh Circuit in Skye v. Maersk Line, Ltd.
held seamen cannot recover for work-related stress under the Jones Act.

Is work-related stress starting to take its toll? If you are a seaman, you better relax—according to the United States Court of Appeals for the Eleventh Circuit, you have no claim under the Jones Act. In Skye v. Maersk Line, Ltd. Corp, No. 12-16433 (11 Cir. May 15, 2014), the appellate court rejected a seaman’s Jones Act claim for damages related to heart problems allegedly attributable to stress at work.

The chief mate on board the SEALAND PRIDE alleged that he worked tirelessly to perform his arduous duties, regularly working over 90 hours a week for up to 84 days at time. After eight long years on the job, he began to experience headaches, a sore back, and a burning sensation in his chest. His cardiologist diagnosed him with left ventricular hypertrophy, a thickening of the heart wall of the left ventricle. The doctor attributed the condition to continued physical job-related stress with long hours and lack of sleep. A few years later, the chief mate filed a Jones Act claim against his employer alleging that unreasonable working conditions were the cause of the physical damage to his heart. The jury agreed—it awarded the chief mate almost $600,000 after taking into account his own comparative fault.

On appeal, the Eleventh Circuit was not so sympathetic. Pointedly, the court held that “[t]he Jones Act does not allow a seaman to recover for injuries caused by work-related stress because work-related stress is not a ‘physical peril.’” Relying on the Supreme Court case, Consolidated Rail Corp. v. Gottshall, 512 U.S. 532 (1994), the court reasoned that for an employer to be liable under the Jones Act, the employee’s injuries must be caused by negligent conduct that threatens imminent physical impact. Indeed, the “central focus” on assigning liability to an employer under the Jones Act is on “physical perils.” A strenuous work schedule and an irregular sleep schedule, the court concluded, are not such perils.

The court, however, was far from unanimous. Of the three judge panel, each offered their own two cents. Judge Fay regretfully concurred with the majority opinion only because he thought the court was bound by the Supreme Court precedent established in Gottshall. Showing signs of sympathy toward the plaintiff, the concurring judge urged the Supreme Court to revisit its decision in Gottshall to find a suitable remedy for workers who have been subjected to “outrageous hours.” In contrast, a dissenting judge denied that Gottshall was dispositive to the outcome of the case. He loosely declared that this case dealt with physical injury, whereas Gottshall dealt with injury from emotional distress.

The Skye decision raises an important issue: should stress-related conditions merit recovery under the Jones Act; or would allowing stress-related claims open the floodgates for trivial suits and fraud? Keep an eye on this one—the Supreme Court may hear the concurring judge’s pleas.

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.

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 so, the Court restated the law applicable to the claims of discharging stevedores based on conditions of the cargo stow, providing a legal primer on the recurring issues concerning the vessel owner’s duties under these circumstances.

In Sobrino-Barrera v. Anderson Shipping Co., No. 11-20826 (5th Cir. Oct. 23, 2012), a cargo supervisor employed by stevedore Gulf Stream Marine was injured during cargo discharge operations from the M/V GRETA. The injury was allegedly caused by the faulty stowage of the cargo of steel pipes. This raised the question of whether the vessel owner breached any of its duties to Sobrino-Barrera, the injured longshore worker.

It is settled that a vessel owner owes longshore employees three duties under LHWCA § 905(b): (1) a duty to turn over the vessel to the stevedore in a reasonably safe condition or to warn the stevedore of any hidden dangers of the vessel or its equipment; (2) a duty of reasonable care to prevent injuries to longshore employees in work areas under the active control of the vessel; and (3) a limited duty to intervene in the stevedore’s operations. The summary judgment evidence on each of the three duties is briefly discussed below.

As an initial matter, the Court concluded that the GRETA’s cargo at the discharge port was an open and obvious condition based on the deposition testimony of Sobrino-Barrera and a fellow employee. Because the “turnover duty” only implicates hidden (non-obvious) defects in the ship and its equipment, no “turnover duty” was owed.

The Court also rejected Sobrino-Barrera’s argument that the ship’s participation in the cargo plan at the load port rendered the cargo within the vessel’s active control at the discharge port. “Involvement in the cargo plan does not constitute active control.”

Lastly, the Court concluded that the vessel interests had no duty to intervene in the cargo discharge operations. The duty to intervene is extremely limited and arises only after the vessel has both “actual knowledge” of a dangerous condition and “actual knowledge” that the stevedore in the exercise of “obviously improvident judgment has failed to correct that dangerous condition.” There was no evidence that the vessel interests knew that the cargo presented a danger to Sobrino-Barrera and his crew. Moreover, Sobrino-Barrera’s deposition testimony indicated that prior to his accident the stevedore had followed its normal and customary procedures in discharging the cargo. Accordingly, there was no duty to intervene on the part of the vessel.