As you know, in and around 1916, Senator Wesley Jones, then a Senator from the great state of Washington urged the adoption of what has commonly referred to as the Jones Act. There are two main “sides” to the Jones Act.

First, as you know, the Jones Act provides a ‘vehicle’ for an injured seaman to be fairly compensated for injuries caused due to the negligence of a fellow crewmember or due to the “unseaworthiness” [“not fit for its intended purpose”] of a piece of equipment.

Second is the “Cabotage” side. It is the Cabotage side of the Jones Act that a new suit has been filed in the United States District Court for Hawaii seeking it held unconstitutional as it applies to Hawaii. I have provided you with a copy, in .pdf format, the Original Complaint (Download .pdf). The case is styled: CV09-00473; KAUA’I KUNANA DAIRY, INC., et al. vs. The United States Government; USDC-District of Hawaii. It was filed October 7, 2009.

To understand the plaintiffs argument, a brief explanation of the Cabotage side is necessary. Simply put, the Jones Act requires that if persons or property are going to be transported from one U.S. port to another U.S. port, it must be done by a vessel (1) manufactured in the United States; (2) by a United States flagged vessel and (3) by a United States crewed vessel. The plaintiffs’ argument boils down to this: (1) Hawaii receives 90% of its products via water transportation; (2) there are two main companies qualified and equipped to service the island (Matson Navigation and Horizon); and (3) that these two companies have engaged in “price fixing” causing their wholesale prices for items to be more inflated due to the requirement to utilize these two companies to satisfy the Jones Act.

In the Complaint, the plaintiffs’ counsel, goes into an elaborate demonstration that demonstrates that the two companies increased their surcharge in similar manners thereby trying to show a ‘pattern’ that has caused the shipments to go up monetarily over the years.

The first hurdle, the plaintiffs’ counsel are going to face is the certification of this as a “Class Action”. There are quite a few obstacles that may stand in the way of class certification. To me, it is not essential that it be certified as a class as any law, if it is unconstitutional as to one “citizen” should not withstand judicial scrutiny. I think the main reason to “add plaintiffs” may be either for ‘political’ reasons or to get more attorneys; fees at the end [or perhaps both].

The next hurdle, and to this writer, the fatal hurdle is that the state of Hawaii came into existence as a state after the enactment of the Jones Act and it accepted the laws of the United States that were then existing.

The Jones Act has been tested in the past and, each and every time, it has been upheld. Very recently there was a decision by the Fourth Circuit that allowed a U.S. tanker that was given a double-hull in China the graces to engage in coastwise trade under the Jones Act; so there has been a fraction of erosion of the Jones Act but, overall, it has been judicially supported. I believe rightly so. Our Jones Act is not the only country that has similar statutes, e.g., Nigeria, the European Union, etc. It serves an important purpose and I believe, especially in the age of terrorism, needs to be strictly enforced not only to protect the US ship builders and U.S. mariners but the sanctity of our U.S. ports.

Finally, this writer is unclear why the plaintiffs have not sued the actual companies if they believe they have been injured as a result of price fixing. I do not believe the District Court will find the Jones Act unconstitutional; I do not believe the Ninth Circuit will find it unconstitutional and I do not believe the United States Supreme Court will accept a writ of certiorari. But, there is no question that this will be interesting to follow…….

Steve Gordon

–

Steve Gordon
Gordon & Elias, L.L.P.
Maritime Lawyer

Background:
Petitioner, Scott Walter Mazier (“Mazier”) brought federal maritime tort claims against his employer the Department of Corrections (“DOC”) for injuries sustained during his commute from McNeil Island on a DOC-run Ferry.

The trial court granted DOC’s motion for summary judgment, dismissing his claims, ruling that the Industrial Insurance Act, title 51 RCW precluded his federal maritime claim.

Issue:
Did the trial court err in granting DOC’s motion for summary judgment ruling that Maziar’s claim was precluded by state law and DOC’s sovereign immunity?

Held:
Maziar argued that title 51 RCW did not preclude his maritime claim because it expressly excludes, from IIA coverage, a plaintiff “for whom a right … exists under the maritime law. Maziar also contended that federal maritime law controls over any state workers’ compensation laws and that the DOC is not immune to suit under Sovereign Immunity.

First, this Court considered whether the IIA bars his federal maritime claims. The DOC argued that the matter was “purely local concern” and therefore only subject to the state IIA statute. By enacting the IIA, The legislature abolished all common law civil actions for personal injuries that occur during a worker’s employment and in exchange employers accepted limited liability for claims that might not have been compensable under the common law. DOC argued that because Maziar was an IIA-covered employee at the time of the injury he has no claim for on-the-job injuries. DOC further contended that although Maziar’s case fell under maritime jurisdiction that the matter is of “purely local concern”

The Court held that the state law did not preclude Maziar’s claim under general maritime law because at the time of his injury Maziar was being transported from work which is a pure maritime activity.

Also, the DOC contended that Maziar’s maritime claim is barred by the State’s sovereign immunity. Maziar countered that the State waived its sovereign immunity as to his claim in RCW 4.92.090. RCW 4.92.090 provides that “the state of Washington, whether acting in its governmental or proprietary capacity, shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person or corporation.”

Accordingly this Court held that the trial court erred in granting DOC’s motion for summary judgment and reversed in favor of Maziar.

Comment:
The big issue here, as in a lot of maritime cases, was a conflict between a state statute and general maritime law.

General maritime law will always be applied unless, there is a federal statute on point or a state law remedy available so long as it does not disrupt the uniformity of general maritime law and governs a matter of “purely local concern”.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Defendant C & C Marine and Repaid, (“Marine”) filed a motion for summary judgment contending that they are immune to the tort suit filed by plaintiff, Jorge Gomez Izaguirre (“Gomez”).

Issue:
Did the Court grant Marine’s motion for summary judgment and find, as a matter of law, that they were entitled to immunity from Gomez’s suit because he was a “borrowed” employee at the time of his injury?

Held:
Marine contended that Gomez is a longshoreman who is being paid benefits under the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), and because the LHWCA provides tort immunity to employers, that this Court must hold as a matter of law that Gomez’s claim must fail.

Under the LHWCA, the liability of an employer is exclusive under the Act. That is, unless an employer fails to secure payment of compensation required under the LHWCA then LHWCA provides the exclusive means an employee, as defined under the act, may recover.

Marine argued that Gomez was a “borrowed employee” under the Act and therefore unable to pursue his tort claim.

The Court discussed nine factors to determine whether LHWCA tort immunity is extended in cases where an employer “borrows” the employee of another employer.

(1) Who has control over the employee/work he is performing (2) whose work is being performed (3) whether there was an agreement between the original and borrowed employers, (4) whether the employee acquiesces to the new work situation, (5) whether there was a temporary termination by the general employer of the relationship with the “servant” (6) Who provides the instruments and place for performance of the work (7) whether the employment of the “servant” is for a considerable length of time (8) who had the right to discharge the employee and (9) who had the obligation to pay.

This Court found that Marine had control over Gomez, that he acquiesced to the new work situation, Gomez’s general employer had temporarily terminated their employment with Gomez, and Marine had the obligation to pay.

Accordingly, this Court held that there were genuine issues of material fact whether Gomez was a “borrowed servant” and therefore Marine entitled to immunity.

Marine’s motion for Summary Judgment was denied

Comment:
Under the LHWCA,  an employer ‘s liability  to the “employee(s)” is exclusive to the Act. Meaning that the employee may only bring an action under LHWCA to recover for injuries sustained while performing duties of their employment.

If an employee is  a “temporary” employee, that is a borrowed servant, then the provisions of the LHWCA will extend to them as well, including the exclusive means of recovery.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Employee, Jeremy Selby (“Selby”) sued employer, Yacht Starship Inc. (“Starship”), and president Troy Manthey (“Manthey”), claiming a violation of the Fair Labor Standards Act (“FLSA”) in the failure to pay him one and one-half times his regular pay rate for every hour worked in excess of 40 hour work week. Defendants moved for Summary judgment.

Plaintiff worked for Starship and was classified by the defendants as a full-time marine crew member.  During the pertinent period the plaintiff served as an engineer and chief engineer, and as a marine crew member he reported to the captain. Duties included, but were not limited to, performing preventative maintenance.

Plaintiff worked more than forty hours many weeks without receiving overtime pay.  As a result, brought an action to recover overtime wages under the FLSA. Defendants refused to pay claiming plaintiff was an exempted seaman under the FLSA thus not entitled to overtime wages and filed a motion for summary judgment.

Issue:
Did the Court find that plaintiff was a seaman exempted from overtime pay under the FLSA and as a result rule as a matter of law in favor of the defendants?\

Held:

Summary judgment will be rendered if the evidence, construed in favor of the nonmoving party, show that there is no genuine issue as to any material fact and that the movant  is entitled to judgment as a matter of law.

FLSA requires employers to provide compensation for each hour worked in excess of forty at a rate no less than one and one-half times an employer’s regular rate. However, the FLSA exempts any employee employed as a “seaman”. Furthermore, “seaman” is defined in a Department of Labor interpretive bulletin, 29 C.F.R. pt. 783, “if he performs, as master or subject to authority, direction, and control of the master aboard a vessel service which is rendered primarily as an aid in the operation in such vessel as a means of transportation, provided he performs no substantial amount of work of a different character”.

Furthermore, the DOL states employee’s eligibility for the seaman exemption depends upon the character of the work he performs what it is called and where it is performed. Merely by occasionally performing seaman’s duties does not render employee exempt under the FLSA.

The DOL further states an employee’s non-seaman work is “substantial”, excluding a seaman exemption, if it occupies more than 20 percent of the time worked by the employee during the work week.

This Court held that because plaintiff did not introduce evidence establishing that he worked more than 20 percent performing non seamans duties, then as a matter of law, defendants were entitled, as a matter of law, to summary judgment.

Comment:
The “seaman exemption”, under FLSA, is important as it relates to employees classified as seamen under the Jones Act. Under the Jones Act an employee is a seaman if, (1) his duties contribute to the function or accomplishment of a vessel’s mission and (2) a connection to the vessel in navigation substantial in both nature and duration. Thus, a Jones Act seaman is likely exempted from receiving overtime pay.

Steve Gordon
http://www.offshoreinjuries.com

Background:
Before this Court were Motions to Dismiss and Summary Judgment filed by Defendant, U.S. Joiner LLC (“Joiner”). Plaintiff, George Casas (“Casas”) brought claims against defendants Joiner and Nortrup Gumman Services (“Northup”) under the Jones Act and general maritime law.

Casas, a resident of Texas, was employed by Land Coast Insulators, Inc. for the insulation of certain portions of an amphibious transport dock under construction in Northrup’s shipyard.  Joiner was a subcontractor of Northrup and Land Coast was a subcontractor of Joiner. Cases was injured while working in a compartment that had an unfinished floor consisting only of raised metal beams suspended between 12 and 18 inches off the bottom. Casas alleges that Defendants’ negligence cause him to slip, fall, and herniated several discs in his back.

Casas brought his claims in Hidalgo County, Texas District Court. The defendants, upon removal to the U.S.D.C. for the Southern District of Texas on basis of diversity jurisdiction, filed motions to dismiss for lack of personal jurisdiction. That Court found insufficient contacts on the part of either defendant and granted both motions to dismiss.

Casas then brought this action in the Southern District of Mississippi?

Issue:
Did the Court grant defendants’ motion to dismiss based upon collateral estoppel and summary judgment on the general maritime claim?

Held:
Collateral estoppels applies, when in the initial litigation, the (1) issue at stake in the pending litigation is the same (2) the issue was actually litigated, and (3) the determination of the issue in the initial litigation was a necessary part of the judgment.

Joiner claims that because it was decided in the Southern District of Texas that Casas was not injured on a vessel and therefore Casas cannot state a maritime claim. This Court held that the first element is not met because Casas is not attempting to state a Jones Act claim as before but a general maritime claim.

Furthermore, Joiner claimed as a matter of law that Casas’s maritime tort allegations fail because vessels under construction give rise to neither a maritime contract nor a maritime tort. Under Fifth Circuit precedent, because the contract for the building of a ship is non-maritime in character, a tort arising out of work on a launched but incomplete vessel also lacks maritime flavor. The barge Casas was injured on was only partially completed and therefore, Joiner’s motion for summary judgment to Casas’s claim under general maritime law was granted.

Joiner also contendsthat Casas’s state-law negligence claims fail as a matter of law. The elements of negligence in Mississippiare, (1) duty, (2) breach of the duty (3) causation, and (4) injury.

Joiner argues that Mississippi law does not impose any duty upon it to Land Coasts’s employees because Land Coast was an independent contractor that maintained control of all aspects of the work its employees were performing on the barge.

Casas asserts however, that Joiner assumed a duty and that it was bound to perform it with care and is liable because it was done negligently.  However, this Court found that Casas’s injury arose out of the work his employer was contracted to do, which was to install insulation in the compartment.  Casas and his coworker testified that they first asked their own supervisor for plywood to lay over the scaffold, making Land Coast aware of the danger. Therefore, Casas failed to show that Joiner had a duty to him and granted summary judgment in favor of Joiner on Casas’s state-law negligence claims.

Comment:
Casas’s Jones Act claim failed because he was not injured on a “vessel” as required under the act. Furthermore, the general maritime negligence claim was denied because the construction of a vessel did not fall under the reach of maritime law.

A contractor may be liable to a subcontractor’s employee if they assume a particular duty. Casas failed to show that Joiner had sufficient knowledge of the dangerous condition leading to Casas’s injury. Furthermore, Casas’s employer, Land Coast, had control and knowledge of the dangerous condition but failed to remedy it. Therefore, Casas was unable to show Joiner had a duty to provide plywood to lay over the scaffold and this Court held, that as a matter of law, Joiner was not liable under a state-law negligence claim.

Steve Gordon
http://www.offshoreinjuries.com

Background:

Before this Court is a motion for partial summary judgment filed by defendants, including BP America Inc. (BP). The motion for summary judgment is in response to plaintiffs’ request to certify this matter as a class action.

Plaintiff, George Larry Myers (Myers), employed by BP engaged in the decommissioning of a platform while living aboard the L/N Dixie Patriot. Myers claimed he became seriously ill, and afflicted with permanent neurological, psychological, and pathological conditions as a result of the movement, improper storage, cutting and removal of radioactive liquids, flow lines and other contaminated equipment on and from the deck of the Dixie Patriot.

Myers also claims he and other proposed class members suffered significant exposure to hazardous substances and therefore, have a significantly increased risk of contracting a serious latent disease.

Myers filed claim for himself and other members of the seaman class, under the Jones Act, general maritime law, the applicable Louisiana law, the unseaworthiness of L/B Dixie Patriot and for maintenance and cure

Extensive discovery has revealed that Myers, the sole named class representative, is a sixty year old male, who has a twenty year history of pipe smoking and had preexisting medical problems.

BP moved for summary judgment against Myers’ attempt to certify as a class.

Issue:
Did the Court grant BP’s motion for summary judgment concluding, as a matter of law, class certification is improper?

Held:
The Fifth Circuit, in Exxon Mobil, has said class certification is inappropriate where each of the plaintiffs claims “will be highly individualized with respect to proximate causation, including individual issues of exposure, susceptibility to illness, and types of physical injuries. The Fifth Circuit, in Exxon Mobil, also noted “one set of operative facts would not establish liability and the end result would be a series of individual mini-trials which the predominance requirement is intended to prevent.”

The Court found that the injuries are highly individualized and inappropriate for class wide adjudication. The proposed class members’ shared common experience of radiation exposure thus, the predominance factor was not satisfied either.

Myers contended that each class member plaintiff’s damages may be calculated pursuant to a formula. However this Court found that each plaintiff’s damages would have to be uniquely calculated.

Accordingly, this Court granted BP’s motion for summary judgment holding, as a matter of law, the employees’ claim could not be certified for a class action lawsuit.

Comment:
Class action lawsuits are potentially damaging to big corporations such as BP. Accordingly, to receive the class certification the plaintiff must demonstrate, among other things, that each class member have a common injury and causation to injury. Here because experts on each individual’s health would have to be taken into account to determine causation and that each employee’s exposure was to radiation differed, the Court found class certification improper.

Background: The plaintiff, David Acosta, filed this action pursuant to the Jones Act and general maritime law.

Acosta claimed that he was injured in the course of his employment as a seaman. Acosta suffered his injury while aboard the defendant’s, Aleutian Spray Fisheries, vessel, the F/V Siberian Sea.

When the injury occurred in September 2007, Acosta was not aboard the vessel; he was working on a forklift in a warehouse located about two hundred to three hundred yards from the dock where the vessel was moored.  Acosta was the assistant deck boss aboard the F/V Siberian Sea and it was part of his duties to retrieve “fiber”-pallet loaded with bundles of paper bags from the warehouse to resupply the vessel.

In the warehouse, Acosta picked up one pallet with the forklift but noticed the pallet was broken, so he set it down and began moving the bundles of fiber from the broken pallet to a sound one by hand. While he was off the forklift moving the bundles by hand, the top pallet from the stack behind the one he had moved fell upon him, causing injury to his back.

Acosta asserted in his Jones Act claim that his injury was caused by the negligence of his employer.

Defendant moved for summary judgment on the basis that Acosta cannot establish any negligent act on their part, as the warehouse where the injury occurred was not owned or controlled by the defendant, and no employee of the defendant’s stacked the pallets of fiber and thereby created the dangerous condition.

Acosta asserted that regardless of who created the dangerous condition, defendants had a non-delegable duty to provide a safe place to work, including the duty to inspect the warehouse.

Defendant contended that to the extent a dangerous condition existed in the warehouse, Acosta himself was responsible for performing the inspection, as he was the assistant deck boss, and in charge of supervising work during the loading of supplies. Defendant argued that Acosta was thus barred from recovery under the primary duty doctrine. Defendant moved for partial summary judgment on plaintiff’s Jones Act claim.

Issue: Whether the Court will grant the defendant’s motion for partial summary judgment.

Held:

Defendant argued that because Acosta was himself the person who should have inspected the warehouse for unsafe conditions, then his Jones Act should be barred by the primary duty doctrine.

Under the primary duty rule, a seaman-employee may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment.

The declarations and depositions filed by the parties demonstrated there were issues of fact regarding who created the dangerous condition in the warehouse, including whether Acosta was the person responsible for inspecting the conditions in the warehouse before starting work there and whether he could have discovered by inspection that the area around the stacked pallets was not safe.

The Court held these issues of fact must be determined by the trier of fact. Accordingly, the defendant’s motion for partial summary judgment was denied as to the Jones Act claim

Comments:

The Jones Act, originally enacted as 46 U.S.C. § 688, provides that “a seaman injured in the course of his employment … may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, railway employees apply to an action under this section.”

Steve Gordon
http://www.OffshoreInjuries.com

Background: Following settlement of maritime tort action brought by vessel’s captain, Jameson Cooper (“Cooper”) for injuries allegedly sustained due to defect design, construction or installation of food lift on ship, vessel owner, vessel itself, vessel’s manager, and injured captain’s maritime employer all filed amended third-party complaint seeking to recover from ship’s builder and designer and US company involved in venture with builder to do business in the US.

Third-party defendant’s motion for summary judgment was granted, dismissing third-party plaintiffs’  claims as barred by Dutch ten-year statute of repose, and the third-party plaintiffs appealed.

Issue:
Will the defendants’ motion for summary judgment be overruled on appeal?

Held:
The broad choice-of-law provision in the contract for construction of the ship, stating “all disputes arising out of or in connection with” contract would be governed by Dutch law, required application of Dutch law to third-party claims asserted by the owner of the ship against the ship builder and designer.

The clause in the contract that clearly and unequivocally purported to relieve ship builder of liability for any loss or damage directly arising from defectiveness or deficiency of any part of ship, except if resulting from intentional conduct or gross negligence of ship builder or its servants, was enforceable under Florida law.

The clause could be invoked by ship designer which, though a non-signatory to construction contract, was subcontractor of ship builder.

Ship’s  manager  and maritime employer of captain who was injured due to purported defect in design, construction and installation of food life on vessel, not being parties to contract for construction of ship, were not bound by choice-of-law provision.

Indemnity and contribution claims asserted by vessel itself, vessel’s manager, and by maritime employer of injured captain and contribution claims, to extent sounding in strict liability and asserted against builder or designer, were barred by Dutch ten year statute of repose.

Finally, the Court held that the indemnity and contribution claims asserted against the United States company involved in venture with ship builder, which they carried on business in the US, were governed by federal maritime law and not bound by the Dutch ten year statute of repose.

Comments:
Central to this complex case was a choice of law provision in a ship construction contract. It is possible for example, that a choice of law provision requiring adjudication under US law, may be governed by English law in seeking its enforceability. That is, to determine whether the provision is enforceable it may be necessary to analyze it under a different source of law.

However, provisions like the one here will only govern the disputes arising out of the contract. A choice of law provision, that relates only to the agreement, will not encompass related tort claims.

Steve Gordon
http://www.offshoreinjuries.com

Background: Before the Court were multiple motions for partial summary judgment made by the plaintiff, Raymond Bartoe (“Bartoe”), and the defendants.

Bartoe moved for partial summary judgment on the defendants’ assertion of primary duty doctrine as inconsistent with the Jones Act and on defendants’ assertion of limitation of liability. Defendants have moved for partial summary judgment, claiming ice does not render a vessel unseaworthy and Bartoe cannot establish the lack of additional deck crew caused his injuries.

Bartoe worked as a deckhand aboard the harbor tug M/V Coal Express in January 2007. When Bartoe began his shift on a cold evening, January 16, 2007, ice had already formed on the deck of the tug. Bartoe was the only deckhand aboard the tug that evening and worked to keep ice from accumulating upon the deck.

Bartoe claimed he injured his back when he slipped on ice on the tug’s deck and fell from the tug onto a barge in tow. Bartoe sued the defendants for negligence under the Jones Act, unseaworthiness under general maritime law, and for maintenance and cure.

The defendants claimed that Bartoe’s Jones Act claim was barred by the primary duty doctrine.

Bartoe claimed that ice on the deck and lack of adequate personnel rendered the vessel unseaworthy and that defendants were negligent by permitting or facilitating ice to accumulate on the deck through a variety of acts or omissions.

Issue: Whether the motions for partial summary judgment will be granted.

Held
A motion for summary judgment will be granted if the evidence, viewed in light most favorable to the nonmoving party, demonstrates there was no genuine issue of material fact and the moving party was entitled to judgment as a matter of law.

The Primary Duty Doctrine states that a seaman may not recover from his employer for injuries caused by his own failure to perform a duty imposed on him by his employment. The defendants argued they were entitled to the affirmative defense and Bartoe claimed the doctrine was inconsistent with the Jones Act.

The Court held the doctrine was inconsistent with the Jones Act’s rejection of contributory negligence and assumption of the risk as bars to recovery. Although it may reduce the amount of recovery, it is not a complete bar to recovery unless the plaintiff was the master of the vessel or upon a finding of affirmative misconduct. Here, Bartoe was not the master of the vessel and there was no evidence that Bartoe slipped on the ice because of his intentional and knowing decision to ignore the duty of removing ice from the deck.

Under the doctrine of unseaworthiness, a vessel owner has an absolute duty to furnish a seaworthy vessel. The plaintiff must show that: (1) the vessel was unseaworthy and, (2) that the unseaworthiness was the cause of injury. Bartoe argued the vessel was unseaworthy because of the accumulation of ice upon the deck and insufficient deckhands.

The Court granted the defendants’ motion for partial summary judgment on the issue of unseaworthiness for excessive ice accumulation because the presence of ice on the deck should have been reasonably expected on a tug in the Mississippi River on a cold January evening.

Bartoe claimed a second deckhand was necessary to remove ice that had already formed. Insufficient manpower can render a vessel unseaworthy.

The Court denied the defendants’ motion for summary judgment as to unseaworthiness for lack of sufficient deckhands because a reasonable fact-finder could conclude that Bartoe’s injury was a result of insufficient manpower because expert testimony stating another deckhand could have removed the ice Bartoe slipped on.

One element the plaintiff must prove under the Jones Act is the employer’s negligence. Bartoe claimed defendants breached their duty of care when the pilot operated the vessel in a way causing excessive ice to accumulate. Bartoe also claimed the defendants were negligent when they failed to provide a second deckhand to clear the ice.

Defendants argued that ice accumulation was inevitable, that harbor tugs were routinely operated with only one deckhand and Bartoe did not provide sufficient evidence to prove the lack of a second deckhand caused his injuries.

Under the Jones Act, the basis of liability rests on the showing of negligence and not the fact that an injury occurred. The Court denied the defendants’ motion on both issues. The Court found material issues of fact whether the operator of the M/V Coal Express caused too much accumulation of ice on the deck by traveling too fast on the river and whether Bartoe had enough time to clear the ice once the tug was moored. Moreover, Bartoe provided expert testimony that stated a second deckhand was needed to remove the ice accumulating at night thus presenting a material issue of fact whether another deckhand was needed.

Comment:
Under a claim for unseaworthiness the employee must show that the vessel was unseaworthy and that the unseaworthiness caused the injury. In limited circumstances ice can make vessel unseaworthy. However, Bartoe failed to introduce evidence supporting this.

The success of a Jones Act claim lies in showing that the employer was negligent by breaching a duty of care. Bartoe was successful in avoiding summary judgment because he introduced expert testimony stating the operator of the tug may have caused excessive ice to accumulate and that a second deckhand was necessary to continually clear the ice.

Steve Gordon

http://www.offshoreinjuries.com

Background: Plaintiff, Perry Rose, was a seaman employed by Miss Pacific, LLC (“MP”). He suffered a knee injury while performing crew work on the vessel F/V MISS PACIFIC. The vessel, moored in Oregon, was owned and operated by defendant MP, a wholly owned subsidiary of defendant Pacific Fishing, LLC (“PF”).

Rose initially filed this action in the Western District of Washington seeking to recover damages from defendants based on negligence and for maintenance, cure, and unearned wages pursuant to the Jones Act and general maritime law. He served defendants’ registered agents in Oregon on January 6, 2009.

The defendants, MP and PF, moved to dismiss the action for lack of personal jurisdiction and on other grounds. Because that motion disclosed that MP had a registered agent in Washington, the plaintiff reserved that the defendant was in Washington on February 26, 2009. On March 9, 2009, the Western District of Washington granted defendants’ motion in part based on lack of personal jurisdiction and transferred the case to this court.

Defendants MP and PF have filed a motion for costs under RCW 4.23.185(5), seeking an award of attorney fees in the sum of $16,293.00 incurred in the Western District of Washington.

Issue: Whether the Court will grant the defendants’ motion for costs.

Held:
The plaintiff Rose argued that MP did not qualify for an award of attorney fees because it was served in Washington before issuance of the transfer order. However, Rose initially served MP in Oregon. Although Rose subsequently served MP in Washington, the fact remained that MP was “personally served outside the state,” providing it with a basis to file a motion to dismiss for lack of personal jurisdiction.

However, when MP filed that motion, it knew that Rose could easily acquire personal jurisdiction over it in Washington by serving its registered agent in Washington. This Court was confused why it bothered to contest jurisdiction in Washington. Under those circumstances, this Court exercised its discretion not to award any attorney fees to MP.

Comments:

Attorney’s fees are the costs of legal representation that an attorney’s client or a party to a lawsuit incurs. The fees are assessed in a number of ways, usually in advance of the representation, such as billable hours, flat fees, or contingent fees.

In civil cases, lawyers for the plaintiff can take a case on a contingent fee basis. This means that a percentage of the monetary judgment or settlement will be given to the firm or firms that have represented the plaintiff.

If a plaintiff loses, the attorney does not receive any money for his or her work.

In criminal cases, the plaintiff may not work with a firm on a contingent basis, as that would violate ethical regulations.

Steve Gordon
http://www.offshoreinjuries.com