Employer established a McCorpen defense that precluded the seaman’s collection of maintenance and cure benefits because seaman misrepresented or concealed his hip replacement from his employer, this misrepresentation was material to the employer’s decision to hire the seaman, and seaman’s hip replacement was connected to his workplace injury.
ATLANTIC SOUNDING COMPANY, INCORPORATED, Plaintiff-Appellee v. TIMOTHY F. PETREY, Defendant-Appellant.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 24124
November 23, 2010, Filed
Defendant seaman appealed from the United States District Court for the Eastern District of Louisiana, challenging the district court’s declaratory judgment in favor of plaintiff former employer. The seaman argued that the district court erred when it denied him recovery of maintenance and cure benefits against his former employer. The seaman’s hip, which had been replaced, displaced while working for the employer.
The seaman argued that the district court incorrectly applied the McCorpen defense. Specifically, he argued that the court established a fourth element to the McCorpen defense, which the district court failed to address in its decision. Affirming, the court ruled that the seaman’s argument was incorrect; the McCorpen defense had only three elements. Based on the record, the district court did not err by finding that the seaman had misrepresented or concealed his hip replacement from his employer. The district court did not err by determining that this misrepresentation was material to the employer’s decision to hire the seaman. In addition, the district court did not err in concluding that the employer would not have hired the seaman as a deckhand if the company had known during the hiring process about his hip replacement and prescription medication consumption. And, the district court correctly determined that the seaman’s hip replacement was connected to his workplace injury. Thus, the trial court correctly determined that the employer had established a McCorpen defense that precluded the seaman’s collection of maintenance and cure benefits.
The court affirmed the judgment.
Where a seaman twice injured his back while moving water and boxes, his Jones Act negligence claim and maintenance and cure claim failed because, AMONG OTHER THINGS, he could not demonstrate a lack of “ordinary prudence” by the employer, and he had no pain or symptoms and 100% functional improvement when he returned to work.
RAYMOND SALIS, Plaintiff–Appellant, v. L&M BOTRUC RENTAL, INC., Defendant–Appellee.
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2010 U.S. App. LEXIS 22885
November 3, 2010, Filed
Plaintiff seaman sued defendant former employer, asserting claims for personal injury compensation under the Jones Act as well as maintenance and cure. The United States District Court for the Eastern District of Louisiana granted summary judgment in favor of the employer. The seaman appealed.
The seaman was working as a deckhand aboard a ship when he twice injured his neck and back while moving water into the galley and transporting boxes of groceries from shore. The seaman was diagnosed with a spinal injury. After the seaman returned to work, he complained about renewed pain. However, his license was suspended for failure to take a drug test. The appellate court determined that the seaman’s Jones Act negligence claim failed because (1) the ship’s captain could not recall another individual injuring himself in such a manner or reporting such an injury, and (2) the bare existence of another transportation method by which the seaman’s particular injury might not have occurred, with no additional citations or legal arguments, could not demonstrate a lack of “ordinary prudence” by the employer in allowing crewmen to transport the goods in that manner. At the time the seaman returned to work, he had no right to maintenance or cure because he reached maximum medical recovery since he had no pain or symptoms and 100% functional improvement.
The appellate court affirmed the district court’s grant of summary judgment.
Where negligent operation of a tug and a damaged fender system on another tug were substantial contributing causes of the puncture of tanker vessel’s hull and a resulting oil spill, owners of tugs were not entitled to limitation of liability under 46 U.S.C.S. § 30503 because owners had knowledge that tugs were negligently operated and unseaworthy.
In the Matter of ALEX C CORP., as owner of the Tug ALEX C and BAY STATE TOWING COMPANY, as Operator of the Tug ALEX C, for Exoneration from and Limitation of Liability; POSAVINA SHIPPING COMPANY, and SOCIEDAD NAVIERA ULTRAGAS, LTD., Plaintiffs, v. ALEX C CORP. and BAY STATE TOWING COMPANY, INC., Defendants.
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
2010 U.S. Dist. LEXIS 116381
November 1, 2010, Filed
Plaintiffs, the owner of a tanker vessel and another entity, asserted claims for removal costs and damages under the Oil Pollution Act of 1990 (OPA). Pursuant to the Limitation of Shipowner’s Liability Act of 1851, defendants, tug boat owners, brought an action for exoneration with respect to unseaworthiness and negligence claims arising from an oil spill that occurred when a tug allided with a tanker vessel. The court conducted a non-jury trial.
Three tugs were to assist in undocking the tanker vessel from a terminal. As one tug went to provide assistance to a second tug, the fender of the first tug made metal on metal contact with the tanker, puncturing the tanker’s hull and causing oil to spill into a creek. The court found that the captain of the first tug did not exercise due care in navigating his tug, that the damaged fender system on the first tug made the tug unseaworthy and was a substantial contributing cause of the puncture of the tanker’s hull, and that the decision of a vice president of the owner of a tug to allow a deckhand who was incapable of operating a tug competently to operate the second tug alone made the tug unseaworthy and was a substantial contributing cause of the puncture of the tanker’s hull. The court concluded that defendants were not entitled to limitation of liability under 46 U.S.C.S. § 30503 because defendants had knowledge that the tugs were negligently operated and unseaworthy. The court held that plaintiffs had a right under 33 U.S.C.S. § 2709 to seek contribution through the OPA for oil spill removal costs and damages that defendants were liable for under other laws.
The court concluded that defendants were liable for damages caused by the puncture of the hull of the tanker vessel, that defendants were not entitled to limitation of their liability, that plaintiffs could recover damages as contribution from defendants under the OPA, and that judgment would enter for plaintiffs and against defendants jointly and severally in the amount of $6,304,808.16 in damages and $1,845,939.14 in prejudgment interest.