Summary Judgment Granted In Favor Of Defendant Where Plaintiff, Salvaging A Submerged Barge, Was Found To Be Neither A Seaman Nor An Employee, Thus Not Falling Under The Jones Act Or The LHWCA.
ARTHUR J. PRESTENBACH versus GLOBAL INTERNATIONAL MARINE, INC.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 55622
August 9, 2006, Decided
PROCEDURAL POSTURE:
Before the Court is the defendant’s motion for summary judgment.
OVERVIEW:
On November 11, 2004, Arthur Prestenbach hurt his lower back while he was connecting a heavy, water-filled hose to a bilge pump on a sunken barge that he was retrieving for Global International Marine. Global uses tug boats and barges to carry out its work of ocean towing, some ship docking, and bunkering barges; Global is not in the salvage business or the business of plugging and abandoning wellheads. Global hired Mr. Prestenbach for $ 15 an hour to salvage a submerged barge located in Little Lake, Louisiana. The job was expected to take three days. Mr. Prestenbach did not fill out an employment application with Global, did not take a pre-employment physical, and did not undergo a drug screen. During the third day, a 30-hour shift began; this shift was necessary to float the barge and ready it for transport to the dry dock. Plaintiff was hooking a pump hose to one of the bilge pumps when he felt the pain in his back. He continued working, but eventually reported his injury. Prestenbach sued Global for Jones Act negligence and negligence of the vessel owner under 33 U.S.C. ¤ 905(b). The Court finds that the plaintiff cannot prove seaman status. Plaintiff was hired to do a job for Global that was expected to take only three days. He left the tug boat and barge every evening and returned each morning to work. This obvious “transitory connection” to a vessel falls well short of establishing substantiality and is thus insufficient to confer seaman status. Further, the court finds that Prestenbach is not entitled to coverage under the LHWCA because Global hired Prestenbach, an expert with 25 years experience in the field of plugging and abandoning wellheads, to salvage a sunken barge. Global hired-out that work because Global is in the business of marine transportation, such as ocean towing, ship docking work, and bunkering barges. Retrieving the barge was anticipated to last merely three days; indeed, plaintiff conceded it was a “one-shot” job. A job that cannot be said to be a regular part of Global’s mission. Plaintiff did not submit an employment application, did not take a pre-employment physical, and did not undergo drug screening. He submits no evidence that raises any material genuine issue as to his status as an independent contractor.
OUTCOME:
Defendant’s motion for summary judgment is GRANTED. The plaintiff’s claims against Global are hereby dismissed.
————————————–//—————————————-
Where An Employee Was Injured While Working On A Raft, Welding Plates Into Tubes In A Seawall, And The Employee Also Served As The Project Foreman And Tugboat Captain, The Trial Court Erroneously Took From The Hands Of The Jury The Issue Of Whether The Employee Was A “Seaman” For Purposes Of The Jones Act, 46 U.S.C.S. App. ¤ 688, When He Was Hurt.
Richard T. Arnold, Plaintiff-Appellant v. Luedtke Engineering Co., Defendant-
Appellee
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
2006 U.S. App. LEXIS 20054
August 4, 2006, Filed
PROCEDURAL POSTURE:
Plaintiff former employee sued defendant employer, asserting a personal injury claim under the Jones Act, 46 U.S.C.S. app. ¤ 688, and an unseaworthiness claim under general admiralty and maritime law. The United States District Court for the Western District of Michigan granted summary judgment to the employer. The employee appealed.
OVERVIEW:
The employee sustained a back injury while working on a project to reconstruct a seawall. After a doctor declared that the back condition made the employee unfit to return to his prior employment, the employee sued, asserting a negligence claim under the Jones Act and an unseaworthiness claim. The trial court granted the employer summary judgment after finding that the employee was not a “seaman” for purposes of the Jones Act. The trial court erred by removing that mixed question of law and fact from the jury and by applying a “snapshot” test when considering the employee’s tasks. The project on which the employee worked was broken in to several phases. The employee was the project foreman and tugboat captain. During the phase of the project in which he was hurt, the employee placed welding wedge plates into tubs in the seawall and welded them in place. Much of that work was done from a raft. He also spent part of his day piloting the tugboat to move another vessel. His duties clearly satisfied the first part of the Chandris inquiry into a worker’s status as a “seaman.” A material fact dispute existed about whether his duties also satisfied the second prong of the Chandris inquiry.
OUTCOME:
The court reversed the decision of the district court and remanded the case for trial.
————————————–//—————————————-
The Stowage And Transport Of Cargo Aboard A Vessel In Navigable Waters Is A Traditional Maritime Activity Falling Squarely Within The Court’s Admiralty Jurisdiction And Thus A Jury Trial Is Not Available To Any Party.
KEITH BIAGAS VERSUS HORNBECK OFFSHORE SERVICES, LLC, SCHLUMBERGER TECHNOLOGY
CORPORATION AND CHEVRON U.S.A., INC.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 54161
August 3, 2006, Filed
PROCEDURAL POSTURE:
Before the Court is Plaintiff’s Motion to Strike Jury Demand.
OVERVIEW:
Plaintiff, Employed by ENSCO Offshore Company, was injured after being transferred to the deck of the M/V HOS CROSSFIRE, owned by Defendant Hornbeck, to assist in the back-loading of a separator unit, owned by Defendant Schlumberger. After problems were encountered moving a heavy separator unit from one place to another on the platform, Co Defendant Chevron instructed Schlumberger to install Teflon skids on the bottom of the unit to make it easier to move. Chevron had had success with this in the past. Soon thereafter, the heavy separator unit, equipped with Teflon skids, allegedly slid and pinned Plaintiff against another piece of equipment when the vessel encountered rough seas. Both Defendants were aware that the separator unit would be transported by vessel and that certain hazards existed when it was transported because the unit rested on Teflon skids. In April of 2004, Plaintiff filed his first Complaint against Hornbeck for his injuries, alleging general maritime law jurisdiction. Hornbeck answered and requested a jury; however, it later waived trial by jury. Hornbeck then filed a third party demand against Schlumberger. Schlumberger answered the third party and Plaintiff’s complaint. It did not request trial by jury. Thereafter, Plaintiff filed a second amended complaint, naming Chevron as a defendant and also filing a direct claim against Schlumberger. It was in their answer to the second amended complaint that both Schlumberger and Chevron requested trial by jury. Plaintiff then filed a third amended complaint, wherein he expressly designated his claim as an admiralty and maritime claim under Rule 9(h). A jury trial is not available to any party in an admiralty or maritime claim under Rule 9(h). Nonetheless, Defendants Chevron and Schlumberger refuse to withdraw their jury demand. The court found that the plaintiff’s injuries allegedly arose from a traditional maritime activity, the stowage and transport of cargo aboard a vessel in navigable waters. These claims fall squarely under the Court’s admiralty and maritime jurisdiction.
OUTCOME:
Plaintiff’s Motion to Strike Jury Demand is granted.
————————————–//—————————————-
Minor Duties Aboard A Jack Up Boat Do Not Confer Seaman Status.
DANA LOPEZ VERSUS MAGNOLIA INDUSTRIAL FABRICATORS, INC., ET AL
CIVIL ACTION NO. 05-0371 SECTION: “A”(1)
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 57932
August 18, 2006, Decided
PROCEDURAL POSTURE:
Before the Court is Defendant’s Motion for Summary Judgment on Plaintiff’s Seaman Status.
OVERVIEW: Plaintiff filed suit in this Court on February 11, 2005, seeking damages for injuries he allegedly sustained when he slipped down the steps of a jack-up rig, the MOPU VIII. Plaintiff asserts that his action arises under the Admiralty and General Maritime Law of the United States and alternatively, the Jones Act, and alternatively, Section 905(b) of the Longshore and Harbor Workers Compensation Act, and alternatively, under the Outer Continental Shelf Act, and pursuant to 28 U.S.C. ¤ 1331 and 1367 on the supplemental jurisdiction of this Court to entertain claims arising under Louisiana State law. Defendants contend that Plaintiff is not a seaman under the Jones Act, and thus his Jones Act claim must be dismissed. Magnolia, Plaintiff’s employer at the time of the alleged incident, argues that the only claims Plaintiff has made against it are for Jones Act negligence. Magnolia argues that because Plaintiff is not a seaman, his remedy is limited to workers’ compensation under the Longshore and Harbor Workers Compensation Act, and thus his claims against Magnolia should be dismissed. The court found that the Plaintiff does not satisfy the two-prong test for determining seaman status enunciated by the Supreme Court in Chandris because Plaintiff himself has acknowledged that his primary duties were aboard the platform, and not the jack-up boat. His minor duties aboard the jack-up boat do not confer seaman status upon him.
OUTCOME:
The Court finds that Plaintiff is not a seaman under the Jones Act as a matter of law, and his Jones Act claims must be dismissed.
————————————–//—————————————-
One Year Limitation Period, As Stated In Holland America Contract, Was Fundamentally Fair And Reasonably Communicated To Passengers.
JACK OLTMAN, et al., Plaintiffs, v. HOLLAND AMERICA LINE
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
2006 U.S. Dist. LEXIS 57115
August 1, 2006, Decided
PROCEDURAL POSTURE:
This matter comes before the court on Defendants’ motion for summary judgment.
OVERVIEW:
On March 31, 2004, Plaintiffs Jack Oltman and his mother Bernice Oltman embarked on a seventeen-day cruise from Valparaiso, Chile to San Diego, California. Defendants Holland America Line operated the cruise. At some point before arriving in San Diego on April 17, 2004, the Oltmans fell sick when a gastrointestinal illness broke out among the passengers. The Oltmans are not certain when they received their travel documents, but construing the facts in the light most favorable to them, the court will assume for the purposes of this order that they received them upon boarding the ship. On March 31, 2005, the Oltmans filed a complaint against Holland America in King County Superior Court, alleging that Holland America’s negligence led to their illness. They also alleged negligent infliction of emotional distress, breach of contract, and fraudulent misrepresentation.
Holland America claims that this action is untimely because the cruise contract specifies a one-year limitations period for commencing a lawsuit based on injuries suffered on the cruise. Plaintiffs contend, however, that the one-year limitations period is invalid under contract law principles, or in the alternative that this action is timely because it is a continuation of their timely state court action. The Court found that the cruise contract reasonably communicated the one year limitation and that it is fundamentally fair.
OUTCOME:
Summary Judgment for the Defendant is granted.
————————————–//—————————————-
A Gas Production Platform Is Not A Vessel For Purposes Of The Jones Act, The LHWCA, Or General Maritime Law.
DARRYL TOUSSAINT VERSUS CHEVRON PHILLIPS CHEMICAL COMPANY, LLC, ET AL.
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA
2006 U.S. Dist. LEXIS 56198
August 11, 2006, Decided
PROCEDURAL POSTURE:
Before the Court is Chevron’s n1 Motion for Summary Judgment.
OVERVIEW:
Darryl Toussaint sued Chevron and others based on personal injuries he sustained in an accident on December 30, 2002. At the time of the accident, Toussaint was employed by Phillips Service Company (“PSC”) and assigned to work on a gas production platform owned by Chevron located in the Gulf of Mexico roughly six miles off the coast of Louisiana. PSC is in the business of providing a variety of services, including contract labor, to companies involved in the offshore production of oil and gas. Some time prior to the accident, PSC had entered into a contract with Chevron for the cleaning of a heater unit located on the gas production platform. The night of the accident Toussaint was a middleman in a bucket brigade removing oily debris from the heater unit. A coworker inside the unit would hand a full bucket to Toussaint. He would ascend the ladder and hand the bucket off to another coworker outside the heater unit. At around 3 a.m., after two dozen such trips with the oily bucket, Toussaint fell off the ladder and injured his head and neck. The Court found that the platform where Toussaint was working when he was injured is not a vessel for purposes of the Jones Act, the LHWCA, or general maritime law. Therefore, Toussaint cannot recover as a matter of law under any of the specific theories that he pleads in the complaint.
OUTCOME:
Defendants’ Motion for Summary Judgment is granted and plaintiff’s claim is dismissed with prejudice.
————————————–//—————————————-
Plaintiff Seaman Who Filed Jones Act Claim But Did Not Correctly Demand Jury Trial, Waived Such Right, Even Though It Was Inadvertent And Unintended And Regardless Of Explanation Or Excuse.
JASPER WALKER, Plaintiff, v. EDISON CHOUEST OFFSHORE, L.L.C., GALLIANO MARINE
SERVICES L.L.C., the UNITED STATES OF AMERICA and The Vessel CAROLYN CHOUEST, In Rem, Defendants.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2006 U.S. Dist. LEXIS 53786
August 3, 2006, Decided
PROCEDURAL POSTURE:
Defendant Employer’s moves for a declaration that the claims brought against them by plaintiff Jasper Walker will be tried to the court and not to a jury.
OVERVIEW:
On January 11, 2002, Walker, a member of the United States Merchant Marine, employee of defendants Edison and Galliano, and member of the crew of the vessel Carolyn Chouest, seriously injured his neck and back while performing his job duties aboard the Carolyn Chouest. Walker alleges that his injuries were caused by “the unsafe and unseaworthy condition” of the Carolyn Chouest and the negligence of defendants. He seeks both compensatory damages and “maintenance, cure and wages” pursuant to the Jones Act. Paragraph 6 of the complaint states: Nothing in these jurisdictional allegations is to be construed as a waiver of the plaintiff’s right to a jury trial in plaintiff’s action at law under the Jones Act, nor of the right to have all of the claims asserted herein tried to a jury, at plaintiff’s option, as permitted under Fitzgerald v. United States Lines Co., 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct. 1646 (1963). No other reference to a jury trial is contained in the complaint or in any pleadings other then in the motion papers related to the issue currently under consideration. The court finds that not waiving a jury trial is not the same as demanding a jury trial. A demand is a definitive statement and not a reservation of a decision for a later time. The statement in paragraph six of Walker’s complaint is merely a warning to the opposing parties and the court that Walker might, at some undetermined time in the future, elect to demand a jury; it is not a demand in any sense of the word.
OUTCOME:
Defendant’s motion is granted and any trial in the present case will be a non-jury trial.
————————————–//—————————————-
Plaintiff Seaman’s Residence In The Jurisdiction Was The Determining Factor In The Court’s Analysis Of Defendant Employers Motion To Transfer Venue.
EDWARD HINES, Plaintiff, v. INGRAM BARGE COMPANY, Defendant.
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, GALVESTON DIVISION
2006 U.S. Dist. LEXIS 55382
August 9, 2006, Filed
PROCEDURAL POSTURE:
Defendant Employer motions for Transfer of Venue to the Western District of Kentucky.
OVERVIEW:
This Jones Act case arises out of personal injuries sustained by Edward Hines while employed as a deckhand aboard Defendant Ingram Barge Company’s vessel. Plaintiff, a resident of Galveston, Texas, claims that he was injured on or about November 22, 2004, in waters near Paducah, Kentucky. Plaintiff was employed by Defendant from October 8, 2004 through February 14, 2005. During that time period, he was a resident of Doniphan, Missouri. Defendant now moves this Court to transfer this case to the Western Division of Kentucky pursuant to 28 U.S.C. ¤ 1404(a) on the ground that the Western District of Kentucky would be more convenient for both the Parties and witnesses, and that transfer to that forum would serve the interests of justice. In analyzing the motion, the court noted that the availability and convenience of witnesses is arguably the most important of the factors” in the ¤ 1404(a) analysis. Defendant claimed that several key witnesses lived far away, but the court noted, while that may be the case, that in the past that “[t]he very nature of seamen’s employment frequently makes them unavailable for trial, requiring the parties to submit the seamen’s testimony in the form of depositions.” Dupre, 810 F. Supp. at 826. Additionally, this is a non-jury case, and in non-jury trials, it is becoming common practice to present testimony through depositions. Thus, Defendant is unlikely to be prejudiced or inconvenienced if some of the fact witnesses must be presented by deposition. Further, Plaintiff’s decision to litigate this case in Galveston is entitled to great deference, and while the alleged wrong in this case took place near Paducah, Kentucky, this case still has a connection to Galveston because Plaintiff is a resident of Galveston, and as such, the residents of this Division have an interest in the outcome of this litigation. Therefore, after careful examination of the relevant venue factors coupled with the specific facts of this lawsuit, the Court concludes that Defendant has failed to meet its burden in demonstrating that a more convenient forum for the resolution of this lawsuit exists.
OUTCOME:
Defendant’s Motion to Transfer Venue is respectfully DENIED.
————————————–//—————————————-
This Is Not An Admiralty Case But Is Important To Admiralty Practictioners. IRS Code Imposing Income Tax On Damages For Emotional Distress Are Unconstitutional Because The Damages Do Not Constitute “Income” Within The Meaning Of The 16th Amendment If It Is Unrelated To Lost Wages Or Earnings.
MARRITA MURPHY AND DANIEL J. LEVEILLE, APPELLANTS
v. INTERNAL REVENUE SERVICE AND UNITED STATES OF AMERICA, APPELLEES
Appeal from the United States District Court for the District of Columbia
(No. 03cv02414)
Decided August 22, 2006
PROCEDURAL POSTURE:
Appeal from the district court’s grant of summary judgment in favor of the IRS.
OVERVIEW:
Marrita Murphy brought this suit to recover income taxes she paid on the compensatory damages for emotional distress and loss of reputation she was awarded in an adminstrative action she brought against her former employer. Murphy contends that under ¤ 104(a)(2) of the Internal Revenue Code (IRC), 26 U.S.C. ¤ 104(a)(2), her award should have been excluded from her gross income because it was compensation received “on account of personal physical injuries or physical sickness.” In the alternative, she maintains ¤ 104(a)(2) is unconstitutional insofar as it fails to exclude from gross income revenue that is not “income” within the meaning of the Sixteenth Amendment to the Constitution of the United States. The Court held that Murphy’s compensation was not “received … on account of personal physical injuries” excludable from gross income under ¤ 104(a)(2), but the court did agree that ¤ 104(a)(2) is unconstitutional as applied to her award because compensation for a non-physical personal injury is not income under the Sixteenth Amendment if, as here, it is unrelated to lost wages or earnings.
OUTCOME:
The case was remanded to the district court to enter an order and judgment instructing the Government to refund the taxes Murphy paid on her award plus applicable interest.
