Summary judgment in favor of employer with regard to Jones Act claim was affirmed because the employee was land-based and his work was not of a seagoing nature and duration; as such, his exclusive remedy was under the Longshore and Harbor Workers’ Compensation Act and the employee failed to plead a claim under 33 U.S.C.S. § 905(b).

Wilson Lamar Frazier v. Core Industries, Inc.

SUPREME COURT OF ALABAMA
2009 Ala. LEXIS 287

December 4, 2009, Released

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Appellant employee appealed the grant of summary judgment by the Mobile Circuit Court (Ala.) in favor of appellee employee with regard to his negligence claims brought under the Jones Act, 46 U.S.C.S. § 30104.

OVERVIEW:

OVERVIEW: The employer was in the business of offloading or unloading materials and equipment from barges and ships to land. The employee worked as a welder and was working on repairs to a barge that was docked. The employee was injured when he slipped while carrying a piece of steel onto the barge. The employee was again injured while welding new legs on a hopper on a barge and was injured while changing a bucket on a crane. The employee filed a Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C.S. § 901 et seq., claim and received a formal award of LHWCA benefits. The employer asserted that the employee was a welder by trade, was not a Jones Act seaman and his work-related tort claims were barred by the exclusivity provisions of the LHWCA or the Alabama Workers’ Compensation Act. The court found that the employee was land-based and his work was not of a seagoing nature and duration. The employee waived any claim under 33 U.S.C.S. § 905(b) because he did not plead a claim under that statute.

OUTCOME:

OUTCOME: The judgment was affirmed.

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The surviving family member’s motion for leave to supplement their fourth amended complaint was denied because, in the present case, 28 U.S.C.S. § 1605A did not supercede the Death on the High Seas Act; § 1605A had no retroactive application to the present case, and they had no right to amend their complaint to add § 1605A as a cause of action.

OLIVIA RUX, et al., Plaintiffs, v. THE REPUBLIC OF SUDAN, Defendant.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION

2009 U.S. Dist. LEXIS 113282

December 3, 2009, Decided

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: Plaintiffs, surviving family members, sued defendant Republic of Sudan. On remand, the district court was instructed to determine whether the Foreign Sovereign Immunity Act’s creation of a private right of action for state-sponsored terrorism took precedent over the Death on the High Seas Act’s remedy for death on the high seas when terrorism-related deaths occurred on the high seas. The members moved to supplement their fourth amended complaint.

OVERVIEW:

OVERVIEW: The action arose from the terrorist bombing of the American navy vessel U.S.S. Cole on October 12, 2000. In their motion for leave to amend following remand of the case, the members asserted that through a 28 U.S.C.S. § 1605A wrongful death cause of action, they were permitted to assert claims of intentional infliction of emotional distress, loss of consortium, loss of solatium, and punitive damages. They argued that they were now expressly authorized pursuant to § 1605A(c) to make a claim and recover damages as if the action had originally been filed under § 1605A. The clear language of § 1083 of the National Defense Authorization Act for Fiscal Year 2008, Pub. L. No. 110-181, 122 Stat. 3, 342, compels a different conclusion. They did not meet the conditions of § 1083(c)(2), because they never relied upon 28 U.S.C.S. § 1605(a)(7) as creating a cause of action. The members argued unsuccessfully that § 1083(c)(2)(A)(ii) was unconstitutional. There was no equal protection violation. In the present case, § 1605A did not supersede the Death on the High Seas Act.

OUTCOME:

OUTCOME: The individuals’ motion for leave to supplement their fourth amended complaint was denied.

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United States negligently operated an unseaworthy vessel by manning the Navy inflatable boat with an incompetent crew, and because tug owner failed to post a lookout when conditions warranted it, the owner was jointly and severally liable for the wrongful death of the serviceman in a collision with the tug.

In the matter of the Complaint of VULCAN MATERIALS COMPANY, owner of the Tug WILLIAM E. POLLE, for Exoneration from or Limitation of Liability.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA, NORFOLK DIVISION
2009 U.S. Dist. LEXIS 117676

December 17, 2009, Decided

PROCEDURAL POSTURE:

PROCEDURAL POSTURE: The instant suit in admiralty arose out of the death of a serviceman and was before the court following a bench trial on claimant mother’s wrongful death claim against plaintiff tug owner and on the company’s claim for contribution against the United States. The case implicated the Public Vessels Act, 46 U.S.C.S. § 31101 – 13 and the Suits in Admiralty Act, 46 U.S.C. § 30901 et seq., and state tort law, inter alia.

OVERVIEW:

OVERVIEW: The court addressed the issue of whether the United States was properly a party to the action in light of the Feres doctrine in the instant proceeding. The serviceman, who was a member of the U.S. Navy, was killed when the inflatable boat his was traveling on collided with a tug. The owner sought exoneration from or limitation of liability arising out of the between the boat and its tug. The court held that both the United States and the owner were negligent on the night of the accident and the court further found that the serviceman’s death was proximately caused by the negligence of both the United States and the owner. The United States negligently operated an unseaworthy vessel by manning the boat with an incompetent crew. Neither the two students aboard the boat nor its safety observer were properly prepared to operate a such a vessel in a busy shipping channel at night. The crew’s incompetence, and hence the boat’s unseaworthiness, was manifest in part by other acts of negligence that night. While both the United States and the owner were negligent, the negligence of the United States far outweighed that of the owner.

OUTCOME:

OUTCOME: The court entered judgment in favor of the mother. The owner was jointly and severally liable for the wrongful death of the serviceman, and granted judgment for the mother in the amount of one million two hundred fifty thousand dollars, to be shared with the serviceman’s father and siblings.