May 2014 Issue

INJURED COMMERCIAL SCUBA DIVER FILED SUIT AND MOVED FOR SUMMARY JUDGMENT REGARDING WHETHER COAST GUARD REGULATIONS APPLIED TO HIS WORK AT SEA, AND SOUGHT APPLICATION OF THE KERNAN NEGLIENCE PER SE RULE, AND THE PENNSYLVANIA RULE. THE MOTION WAS DENIED.

Christopher LAYMAN, Plaintiff,
v. LAHAINA DIVERS, INC., and M/V Dauntless USCG Doc. No.: 1148204, her tackle, rigging and appurtenances en rem, Defendants.

2014 WL 2215913
Only the Westlaw citation is currently available.
United States District Court,
D. Hawai’i.

Civil No. 12-00602 ACK-BMK. | Signed May 28, 2014.

PROCEDURAL POSTURE:

Plaintiff seafarer, who was injured while working, filed suit and moved for summary judgment on several grounds.

OVERVIEW:

Plaintiff Christopher Layman alleges that he was injured while working as a PADI certified SCUBA diver for Defendant Lahaina Divers, Inc. (“LDI”). LDI is a dive tour company and dive shop based in Lahaina Maui.  The parties have stipulated that Plaintiff was employed as a seaman within the meaning of the Jones Act at the time of his injuries.  Plaintiff suffered three separate injuries while working as a seaman aboard LDI’s vessels.  With the instant motion, Plaintiff seeks to establish that LDI may be held liable for per se negligence for its failure to adhere to the Coast Guard regulations governing commercial diving operations. Specifically, Plaintiff seeks an order finding that Plaintiff was injured in the course of his employment as a seaman with LDI, that he was engaged in “commercial diving operations” at the time of those injuries, that his activities were covered by the Coast Guard Commercial Diving Operations regulations, that LDI violated those regulations, and that LDI is therefore subject to per se liability for Plaintiff’s injuries pursuant to Kernan v. American Dredging Co., 355 U.S. 426, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958), and the burden shifting set forth in The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1873).  After a lengthy discussion of the meaning of “Commercial diving operations,” the Court concluded that plaintiff being “engaged as a dive master and a dive tour leader” at the time of his injuries, did not fall within the Coast Guard regulations’ definition of “commercial diving operations” and, as such, the Court concluded that those regulations were not applicable to LDI at the time Plaintiff was injured.  Thus, to the extent Plaintiff seeks an order finding that Plaintiff was a “commercial diver” at the time of his injuries and, thus, LDI was subject to the Coast Guard regulations, the motion was denied.  Next, as to the Kernan rule, which provides that “common-law concepts of foreseeability and risk of harm are not applicable where the employer violates a federal statute or a Coast Guard regulation.”  Any seaman who proves that his employer violated a Coast Guard regulation is entitled to a finding of per se fault so long as the violation played “any part, even the slightest, in producing” the seaman’s injuries. Here, Plaintiff asserted that LDI violated the Coast Guard’s commercial diving regulations; but the Court having found that the CG regulations did not apply, would not conclude matter of law that LDI was negligent per se pursuant to the Kernan Rule.  Lastly, Plaintiff also seeks judgment as to the issue of whether the Pennsylvania Rule applies here. Specifically, Plaintiff argues that, pursuant to the Pennsylvania Rule, the burden should fall on LDI, rather than Plaintiff, to prove causation. The Pennsylvania Rule provides that, if a vessel involved in an accident violated a statute or regulation intended to prevent such an incident, it is presumed that the ship owner was at fault, and the burden of proving causation shifts to the ship owner. The ship owner then has the heavy burden of proving “not merely that [its] fault might not have been one of the causes [of the plaintiff’s injuries], or that it probably was not, but that it could not have been.” In order for this burden-shifting to occur, however, “the injury must be of the kind intended to be prevented by the statute or regulation that the defendant violated.”  As an initial matter, the Court noted that it is not at all clear in this circuit that the Pennsylvania Rule applies to cases that do not involve a collision or other “navigational” accident, or to claims made under the Jones Act.  Even assuming without deciding that the rule is available in this type of case, however, “[a]ll courts have consistently required that there be a threshold causal connection between the violation and the injury before the Rule will apply.” Specifically, a plaintiff must show that the injury he suffered was of the kind intended to be prevented by the regulation that his employer violated.  Here, as discussed above, the Court finds that the Coast Guard Commercial Diving Operations regulations were, on their face, inapplicable to Plaintiff, who was not a commercial diver at the time of his injury.  “Since the Pennsylvania Rule is intended to enforce strict adherence to safety regulations and statutes, the Rule applies only when a statute or regulation actually imposes a mandatory duty.” Here, court found that because the Coast Guard Commercial Diving Operations regulations were inapplicable to Plaintiff at the time of his injury, LDI was under no mandatory duty to comply with them. Thus, the Pennsylvania Rule does not apply.

OUTCOME:

Plaintiff’s Motion for Summary Judgment was denied in pertinent part.

————————————–//—————————————-

MAERSK LINE CHIEF MATE SUCCESSFULLY ARGUED TO A JURY THAT HIS CLAIMS FOR PHYSICAL INJURY TO HIS HEART WERE DUE TO EXCESSIVE WORKING CONDITIONS. ON APPEAL, SPLIT PANEL OF THE 11TH CIRCUIT COURT OF APPEALS REVERSED. LM&W WILL BE FILING PETITION FOR WRIT OF CERTIORARI ON THIS IMPORTANT ISSUE.

2014 WL 1924441
Only the Westlaw citation is currently available.
United States Court of Appeals,
Eleventh Circuit.

William C. SKYE, Plaintiff-Appellee,
v. MAERSK LINE, LIMITED CORPORATION, d.b.a. Maersk Line Limited, Defendant-Appellant.

No. 12-16433. | May 15, 2014.

PROCEDURAL POSTURE:

Jones Act Seaman commenced action against ship owner under the Jones Act to recover money damages for injury stemming from excessive work hours and erratic sleep schedule. The United States District Court for the Southern District of Florida entered judgment in favor of seaman after jury verdict in his favor. Defendant appealed.

OVERVIEW:

William Skye, formerly the chief mate of the Sealand Pride, a commercial vessel, suffers from left ventricular hypertrophy, which he alleged that his employer, Maersk Line Limited caused when it negligently saddled him with “excessive duties and duty time” such that he was “overworked to the point of fatigue.” At trial, the jury found Maersk liable to Skye, who the jury found suffered damages of $2,362,299.00, which the district court reduced to $590,574.75 to account for Skye’s comparative negligence. Maersk moved for a judgment as a matter of law on the ground that the decision of the Supreme Court in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994), barred Skye’s complaint. The district court denied that motion and entered judgment in favor of Skye. In a split decision, the appellate court reversed the denial of the motion for a judgment as a matter of law and entered judgment in favor of Maersk because Skye’s complaint of an injury caused by work-related stress is not cognizable under the Jones Act, which concerns injuries caused by physical perils. See Gottshall, 512 U.S. at 558, 114 S.Ct. at 2411-12.  Per the court, the 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[ ].” Id. at 555, 114 S.Ct. at 2410.  In a special concurrence, Circuit Judge Fay, stated “I concur in the court’s opinion, because we are bound by the decision of the Supreme Court in Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). In my view, however, the majority opinion in that case is contrary to the language, purpose, and spirit of the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq., and the Jones Act, 46 U.S.C. § 30104, concerning a seaman’s recovery of damages for a job-related injury. The core purpose of both is to provide covered employees with a safe place to work. Being required to work 90 and 105 hours per week for 70 or 84 days at a time is hardly being given a safe place to work. I fail to see the difference between being given a defective piece of equipment and being required to work outrageous hours, in determining whether or not the workplace was safe. Surely, an employer is no less negligent in doing either.  Most respectfully, my hope is that the Supreme Court will revisit this area of the law. As Justice Ginsburg stated in her dissent in Gottshall: “Instead of the restrictive ‘zone’ test that leaves severely harmed workers remediless, however negligent their employers, the appropriate FELA claim threshold should be keyed to the genuineness and gravity of the worker’s injury.” Gottshall, 512 U.S. at 572, 114 S.Ct. at 2419 (Ginsburg, J., dissenting).  Similarly, Circuit Court Judge Jordan dissented, and stated, in pertinent part:  “William Skye alleged, and proved to the satisfaction of a jury, that he suffered physical damage to his heart as a result of Maersk forcing him to work for an excessive number of hours (about 16 hours a day on average) without providing him adequate periods of rest. Like the district court, I do not think that Mr. Skye’s claim under the Jones Act, 46 U.S.C. § 30104, constituted a claim for negligent infliction of emotional distress, i.e., “mental or emotional harm (such as fright or anxiety) that is caused by the negligence of another that is not directly brought about by a physical injury, but may manifest itself in physical symptoms.” Consolidated Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994).  The verdict form asked the jury whether Mr. Skye sustained a “physical injury” or an “emotional injury.” The jury specifically found that Mr. Skye sustained only a physical injury due to Maersk’s negligence, and characterized this injury as “left ventricular hypertrophy,” a thickening of the heart wall which can affect the pumping of blood in the ventricle and lead to congestive heart failure. We owe “great deference” to the jury’s factual findings, Grant v. Preferred Research, Inc., 885 F.2d 795, 798 (11th Cir.1989), and I do not believe we can say, as a matter of law on this record, that Mr. Skye’s injury was purely emotional. [Internal citations omitted] As a result, the zone of danger test articulated in Gottshall does not apply.  I recognize that federal and state courts are divided about the scope of Gottshall. Some courts have read Gottshall more broadly, as the majority does, while others have interpreted it more narrowly, as I do. Compare, e.g., Szymanski v. Columbia Transp. Co., 154 F.3d 591, 594-95 (6th Cir.1998) (10-3 en banc decision), and Capriotti v. Consolidated Rail Corp., 878 F.Supp. 429, 432-33 (N.D.N.Y.1995), with, e.g., Walsh v. Consolidated Rail Corp., 937 F.Supp. 380, 387-89 (E.D.Pa.1996), and Duncan v. Am. Commercial Barge Line, LLC, 166 S.W.3d 78, 83-84 (Mo.App. E.D.2004). As I see it, the more constrained reading of Gottshall is supported by the Supreme Court’s more recent decision in Norfolk & Western Railway Co. v. Ayers, 538 U.S. 135, 157, 123 S.Ct. 1210, 155 L.Ed.2d 261 (2003), which distinguished Gottshall and held that “an asbestosis sufferer [can] seek compensation for fear of cancer as an element of his asbestosis-related pain and suffering damages.” In the words of Ayers, “[t]he plaintiffs in Gottshall and [Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 117 S.Ct. 2113, 138 L.Ed.2d 560 (1997) ] grounded their suits on claims of negligent infliction of emotional distress. The claimants before us, in contrast, complain of a negligently inflicted physical injury (asbestosis) and attendant pain and suffering.” Id. at 148, 123 S.Ct. 1210. Like the claimants in Ayers, Mr. Skye is complaining of a negligently inflicted physical injury-left ventricular hypertrophy.  Congress enacted the Jones Act “for the benefit and protection of seamen who are peculiarly the wards of admiralty.” Atl. Sounding Co. v. Townsend, 557 U.S. 404, 417, 129 S.Ct. 2561, 174 L.Ed.2d 382 (2009) (internal quotation marks omitted). Given that purpose, and absent definitive indication from the Supreme Court, I would not read the Jones Act to preclude liability for an employer who makes a seaman work so hard and so continuously that he suffers physical injury in the form of heart disease, heart attack, organ failure, seizure, or stroke.

OUTCOME:

The appellate court reversed and remanded.  LM&W is in the process of filing its petition for writ of certiorari.

————————————–//—————————————-

WHERE JONES ACT SEAFARER SLIPPED AND FELL WHILE SHOWERING, COURT DENIED SHIPOWNER’S MOTION FOR SUMMARY JUDGMENT AS TO JONES ACT NEGLIGENCE AND UNSEAWORTHINESS.

Garrard M. MYERS
v. HERCULES OFFSHORE SERVICES, LLC.

2014 WL 2046072
United States District Court, E.D. Louisiana.

Civil Action No. 13-4870. | Signed May 15, 2014. | Filed May 16, 2014.

PROCEDURAL POSTURE:

Defendant Jones Act employer moved for summary judgment on Plaintiff’s Jones Act Negligence and Unseaworthiness claims.

OVERVIEW:

On May 5, 2013, plaintiff, Garrard M. Myers, a roustabout and Jones Act seaman onboard Hercules’ vessel, the HERCULES 49, fell and injured his ankle while showering. The shower in which Myers was injured was stainless steel, and did not have handrails, a mat, or other slip resistant material. This matter is before the court on a motion for summary judgment filed by defendant, Hercules Offshore Services, LLC. Hercules argues that it is entitled to summary judgment dismissing plaintiff’s Jones Act negligence and unseaworthiness claims because plaintiff cannot prove that the shower in which he was injured was unreasonably dangerous. Hercules argues that it is entitled to summary judgment on Myers’ Jones Act negligence and unseaworthiness claims because there is no proof that the shower was unreasonably dangerous due to the lack of handrails, mats or other slip resistant material. Hercules contends that this is the only reported accident to occur in the stainless steel showers aboard the HERCULES 49 that have been used over 20,000 times since they were installed in 2007. Hercules asserts that the lack of other accidents proves that it was not negligent, nor the vessel unseaworthy, due to the lack of handrails, mats or other slip resistant material.  The question presented in this motion is whether Hercules was negligent, or the shower unseaworthy because it lacked handrails, a mat or other slip resistant material.  Court cited to several cases which demonstrated that a vessel shower that does not have handrails, a mat or other slip resistant material may be unseaworthy or the employer negligent for not providing such items.

OUTCOME:

Therefore, Hercules’ motion for summary judgment is DENIED as to Myers’ Jones Act negligence and unseaworthiness claims.