Trinity Marine v. OSHRC
Fifth Circuit Court of Appeals
December 5, 2001

Government Regulation: the Secretary of Labor's interpretation of OSHA regulation 29 C.F.R. § 1915.132(d) was unreasonable as applied to the Shipyard's electric cable repairs and the Shipyard did not have fair notice that its use of wood-framed plug-in boxes violated 29 C.F.R. § 1910.305(e), thus the penalties assessed against the Shipyard on those bases, and following an investigation after the electrocution death of an employee, must be set aside.

Deweert v. Stevedoring Services
Ninth Circuit Court of Appeals
November 29, 2001

Longshore & Harbor Workers' Act: the ALJ calculated Petitioner's wage earning capacity by averaging his actual wages from the date of injury to the present and concluded that the resulting figure was higher than Petitioner's pre-injury average weekly wage and that Petitioner had not suffered a loss in wage-earning capacity, thus the award of only a nominal sum of of $1 per week for Petitioner's lost wages claim was justified.

Sanko Steamship v. United States
Ninth Circuit Court of Appeals
November 29, 2001

Suits in Admiralty Act/Federal Tort Claims Act: the district court's finding that the United States was immune from suit under the Flood Control Act, 33 U.S.C. § 702, for a failure to warn of a shoal in the Sacramento Deepwater Ship Channel is reversed and remanded for further proceedings in view of the Supreme Court's decision in Central Green Co. v. United States, 531 U.S. 425 (2001), which established a  more restrictive test for determining sovereign immunity. 

Norfolk Shipbuilding & Drydock Co. v. Seabulk Marine
Fifth Circuit Court of Appeals
November 26, 2001

Marine Insurance: the "General Third Party Liabilities" clause of builder's risk policy did not cover claims between the two principal assureds under the policy and the cross liabilities clause of the policy did not transform them into third-party claims, thus the underwriter was not responsible for the defense costs in a suit between the principal assureds arising out of a dispute related to the construction of a ship.

Owens v. Seariver Marine
Fifth Circuit Court of Appeals
November 26, 2001 (Revised)

Jones Act: the definitions of seamen under the Jones Act and under the Fair Labor Standards Act ("FLSA") are separate and independent of each other; under the FLSA, work is seaman's work if it is rendered primarily as an aid in the operation of a vessel as a means of transportation; because the primary purpose of Plaintiff's position was to load and unload petroleum from barges, he was not a seaman for purposes of the FLSA's seaman's exclusion and could therefore claim under the Act's maximum hour and overtime provisions.

Pool Co. v. Cooper
Fifth Circuit Court of Appeals
November 20, 2001 

Longshore & Harbor Workers' Act: the formalized claim withdrawal provision of 20 C.F.R. § 702.225(a) did not prevent the claimant from amending his claim at the hearing, but because the scope of the amendment was in doubt, the matter would be remanded so that the ALJ may resolve whether the claimant effectively withdrew his claim to compensation for the period of February 28, 1994 to March 3, 1994. 

United States v. Bustos-Useche
Fifth Circuit Court of Appeals
November 13, 2001

International Law: persons charged with a crime under the Maritime Drug Law Enforcement Act, 46 U.S.C. app. § 1903, do not have standing to raise issues of international law, thus the defendant could not argue lack of jurisdiction based on the legitimacy of the flag nation's consent to the enforcement of US law on the Panamanian vessel in international waters, which could only be raised by Panama; Criminal Law: defendant's jurisdictional argument that Panama did not consent to enforcement of US law on the Vessel until after drugs were found on board, thus nullifying the district court's jurisdiction, also fails since the only statutory prerequisite to jurisdiction under section 1903(c)(1)(C) is that the flag nation consent to the enforcement of United States law before trial. 

Alter Barge v. Consolidated Grain & Barge Co.
Seventh Circuit Court of Appeals
November 8, 2001

Limitation of Liability Act:  although the personal injury claimant filed his claim late in the limitation proceeding, he was not barred since cause was shown (his explanation met the minimal cause requirement) and permission to file late claims is freely granted so long as the limitation proceeding is ongoing and the late claim will not prejudice other parties.

In re the EXXON VALDEZ, Baker v. Hazelwood
Ninth Circuit Court of Appeals
November 7, 2001

Damages (Punitive Damages): punitive damages against Exxon for the Valdez oil spill are not barred because Exxon has already been subject to criminal and civil sanctions and cleanup expenses as a result of the spill; further, admiralty law does not bar an award of punitive damages; and the Clean Water Act does not preempt a private remedy for punitive damages; the district court properly instructed the jury that it could impose punitive damages on Exxon even if all the recklessness was by its employee Captain Hazelwood rather than by Exxon itself; but, the $5 billion punitive damages award is too high to withstand review under the recent Supreme Court decisions in BMW of North America and Cooper Industries, which established three guideposts for reviewing punitive damages awards: (1) the degree of reprehensibility of the person's conduct; (2) the disparity between the harm or potential harm suffered by the victim and his punitive damage award; and (3) the difference between the punitive damage award and the civil penalties authorized or imposed in comparable cases; the case is remanded to the district court to consider the constitutionality of the amount of the award in light of the guideposts established in BMW. (See also the Press Release from the Ninth Circuit Court of Appeals concerning this decision.)

Hopkins v. Jordan Marine, Inc.
First Circuit Court of Appeals
October 29, 2001

Jones Act/Seaworthiness: although the district court at one point told the jury: "If you find that the plaintiff's alleged injuries were the result of his failing to observe an obvious condition, you will find for the defendant," this was not an impermissible instruction based on the doctrine of "assumption of the risk"; the sentence does not say that assumption of an obvious risk is a defense to unseaworthiness or negligence on the part of the shipowner, but said that a ship is not unseaworthy or an owner negligent merely because the owner does not anticipate that a crew member will behave negligently. 

Rodriquez v. Bowhead Transportation Co.
Ninth Circuit Court of Appeals
October 26, 2001

Longshore & Harbor Workers' Act/Charter Parties: the time charterer of the vessel did not violate any of the Scindia duties owed by a vessel to a longshore worker and thus was not liable for the injuries suffered by the injured worker; further, the terminal services agreement between the time charterer and the stevedore employer plainly did not obligate the time charterer to supervise the manner in which the stevedore's employees loaded the cargo.

In Re Complaint of Holly Marine Towing Co.
Seventh Circuit Court of Appeals
October 26, 2001

Limitation of Liability Act: it was an abuse of discretion for the district court to have dissolved the limitation act injunction against state court claims against the barge owner where a third party defendant with a contribution claim against the owner had not stipulated, along with the plaintiffs, that it would not ask the state court to resolve any issue concerning the limitation of the barge owner's liability.

Seaworthiness/Casualties/Charter Parties: because the United States Army Corps of Engineers ("Corps"), the owner of the barge, tendered the barge to the tug's captain with a boom that was unobviously raised such that it could not pass safely under a Mississippi River bridge, the barge was unseaworthy on delivery and the Corps was 100% liable for the resulting damages.

Gilliland v. E. J. Bartels Co.
Ninth Circuit Court of Appeals
October 16, 2001

Longshore & Harbor Workers' Act: when a claimant receives a tort recovery from a third-party defendant for which an employer or carrier is entitled to an offset under 33 U.S.C. § 933(f), and the award includes periodic payments, the employer may take a dollar-for-dollar credit for each payment at the time the claimant receives it, whether or not the employer elects to fund those periodic payments by purchasing an annuity.

Greenwell v. Aztar Indiana Gaming Co.
Seventh Circuit Court of Appeals
October 4, 2001

Jones Act/Maintenance & Cure: since plaintiff casino boat employee dropped her allegation that she had had been injured at work onboard the vessel, her medical malpractice claim against her employer, which was based the employer's Jones Act and maintenance & cure obligations and the doctrine of respondeat superior, should have been dismissed on the merits; Procedure: plaintiff did not allege an admiralty claim under Rule 9(h) and thus could not use the third party vouching in mechanism of Rule 14(c), but this did not prevent her from using the non-admiralty third party claim procedure under Rule 14(a). 

Transamerica Leasing v. Institute of London Underwriters
Eleventh Circuit Court of Appeals
October 4, 2001

Marine Insurance: based on the facts, the jury, not the district court on a motion for summary judgment, must determine whether Transamerica is an additional assured, a loss payee, or both; if the jury finds that Transamerica is an additional assured, or both an additional assured and a loss payee, then the primary assured's alleged non-disclosure does not affect Transamerica's coverage because the Policy is severable; if the jury finds that Transamerica is merely a loss payee, then the jury must decide whether the primary assured's alleged non-disclosure violates the doctrine of uberrimae fidei, thus voiding the Policy altogether.

Rusty Roberts v. Cardinal Services, Inc.
Fifth Circuit Court of Appeals
October 2, 2001

Jones Act: since Plaintiff failed to show that at least 30 percent of his time was spent on a vessel or vessels under the common ownership or control of his employer, he was not "substantially connected" to a vessel or fleet of vessels such that he could recover as a seaman under the Jones Act.

New York Marine & General Insurance Co. v. Tradeline
Second Circuit Court of Appeals
September 28, 2001

Marine Insurance: the policyholder and cargo seller had been authorized by the cargo underwriter to issue certificates of insurance to its customers under an open cargo policy, thus it acted as the underwriter's agent in issuing the certificates; the prediction of severe rainy weather at the discharge port was a material fact that would have affected the underwriter's decision whether to issue extended coverage under the policy for rainwater damage and thus had to be disclosed under the doctrine of uberrimae fidae; the buyer's disclosure of that weather prediction to the policyholder/cargo seller (but not to the underwriter) before coverage was extended was sufficient since the policy holder/cargo seller was the underwriter's agent, thus the extended coverage was not void based on the doctrine of uberrimaefidae; Damages: the buyer could not recover under the extended coverage for cargo that had been deposited from lightering barges onto the shore area and was washed away as a result of rising tides and tidal waves and for other cargo that was damaged by the cyclone on shore because coverage terminated once the cargo had been delivered to "any other warehouse of place of storage" and was no longer in the "ordinary course of transit"; Clause 12 of the Institute Cargo Clauses (C)did not cover the extra charges incurred in unloading, storing and forwarding the cargo to its destination since this resulted from the closing of the discharge port, which was not a risk covered under the policy; the district court properly refused to award attorneys' fees to the assureds because the underwriter did not act in bad faith in denying the claim or in instituting the declaratory action; the district court did not abuse its broad discretion with respect to prejudgment interest by applying the United States Treasury Bill rate, rather than the 17% rate urged by cargo interests.

NATCO Ltd. v. Moran Towing
Eleventh Circuit Court of Appeals
September 28, 2001

Indemnity/Charter Parties: the towage contract's indemnity provision provided that the tug owner would be held harmless from "any and all loss, damage or liability", which allowed the indemnitee tug owner to recover its attorneys fees from the indemnitor cargo owner, including both defense fees and fees expended in pursuing a counter-claim against a third party.

Pickett v. Petroleum Helicopters
Fifth Circuit Court of Appeals
September 28, 2001

Longshore & Harbor Workers' Act/Outer Continental Shelf Lands Act ("OCSLA"): claimant spouse could not recover under the Longshore Act as applied by the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. § 1333(b), since her husband's death from a helicopter crash occurred over land and not over the Outer Continental Shelf.

Rannals v. Diamond Jo Casino
Sixth Circuit Court of Appeals
September 12, 2001

Jones Act: the district court in granting summary judgment for defendant ship owner erred in finding that plaintiff seaman failed to create a genuine issue of material fact regarding whether her injuries were caused, in whole or part, by owner's or its agents' failure to cure or eliminate an unreasonably dangerous condition in her workplace about which they knew or should have known (the alleged dangerous condition was a patch of ice at the Great Lakes Region Training Center parking lot where plaintiff had gone for ship related training).

In re Marine Asbestos Cases
Ninth Circuit Court of Appeals
September 10, 2001

Jones Act/Maintenance & Cure/Seaworthiness: plaintiff seamen, none of whom had been diagnosed with an asbestos-related medical condition, had no claim under the Jones Act or under the doctrines of seaworthiness and maintenance & cure for the costs of medical monitoring that would provide each plaintiff with a single baseline medical examination.

Karim v. Finch Shipping
Fifth Circuit Court of Appeals
September 5, 2001

Procedure (Jurisdiction)/Limitation of Liability Act: the shipowner waived its jurisdictional defense where it voluntarily provided the district court inrem jurisdiction by commencing the limitation proceeding and placing the res, or the bond, in the hands of the court, and where it invoked the powers of the court to require the plaintiff seaman to halt his proceeding in another forum and to file in the limitation action; Procedure (Forum Non Conveniens): the relevant private and public interest factors under Gulf Oil/Piper Aircraft, such as Plaintiff receiving medical treatment in the United States, evidence and testimony being easily accessible in this forum, counsel for both parties being based in this forum, and the fact that United States limitation law applied, weighed against dismissal; Choice of Law: the district court did not err in making a determination of quantum of personal injury damages under Bangladeshi law by applying English and Indian precedent since experts informed the court that Bangladeshi courts would look to Indian and British cases for guidance where their precedents were lacking; Damages (Prejudgment Interest): the award of prejudgment interest is discretionary (both under Bangladeshi and United States law) and the district court did not abuse its discretion in setting the initial date of the interest accrual to be the date the limitation action was reactivated in federal court, rather than the date of injury.