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• U.S. Supreme Court Overrules U.S. Fifth Circuit Precedent and Holds that Punitive Damages Are Available in a Maintenance and Cure Claim By Michael J. O'Brien In Atlantic Sounding Co., Inc., et al. v. Townsend, the United States Supreme Court held that punitive damages are available to a seaman if his employer/vessel owner has willfully failed to fulfill its maintenance and cure obligation. This decision effectively overrules recent United States Court of Appeals jurisprudence, such as Guevara v. Maritime Overseas Corp, 59 F.3d. 1496, 1995 AMC 2409 (5th Cir. 1995) and Glynn v. Roy Al Boat Management Corp., 57 F.3d 1495, 1995 AMC 2022 (9th Cir. 1995), which interpreted the prior Supreme Court case of Miles v. Apex Marine Corp., 498 U.S. 19, 1991 AMC 1 (1990) to bar claims for punitive damages against vessel owners for the willful failure to pay maintenance and cure.The Plaintiff, Edgar Townsend, injured his arm and shoulder while working aboard a vessel owned by Atlantic Sounding. Atlantic Sounding advised Plaintiff that it would not provide him maintenance and cure. Townsend later filed suit alleging an arbitrary and ....
• United States Fifth Circuit Holds that Willful Concealment of a Prior Medical Condition From a Jones Act Employer May Constitute Contributory Negligence While a Jones Act seaman’s willful concealment of a pre-existing medical condition has long been held to preclude a seaman’s recovery for maintenance and cure benefits, willful concealment has never acted as a bar to recovery under the Jones Act.   The Fifth Circuit’s recent ruling in Leroy Johnson v. Cenac Towing, Inc. provides both comfort and caveat to the Jones Act employer. [See 2008 WL 4330553 (5th Cir. 2008)]. The comfort: the seaman who willfully conceals a pre-existing medical condition from his employer does so to his own peril—if his concealment causes the seaman to suffer a re-injury, the seaman will be precluded from recovering maintenance and cure, and will see his Jones Act claim reduced in proportion to the percentage of fault attributable to his concealment. The caveat: insurance benefits received by a Jones Act seaman under an employer financed health insurance plans that provide coverage only for non-work-related injuries are ....
• Supreme Court Reduces Punitive Damage Award in Exxon Valdez Case and Limits Punitive Damage Awards in Maritime Cases by Bradley C. Myers In a major victory for business interests involved in maritime operations and what many commentators say is a harbinger of things to come, the United States Supreme Court recently struck down the $2.5 billion punitive damage award against ExxonMobil in a case involving claims for individual economic damages filed by landowners, native Alaskans and commercial fisherman following the 1989 grounding of the Exxon Valdez. See Exxon Shipping Company, et al v. Grant Baker, et al, 554 U.S. ____(June 25, 2008).  The Court determined that the upper limit for punitive damages in maritime cases was a 1:1 ratio to compensatory damages and sent the case back to the appellate court to reduce the punitive damage award to $507.5 million which was the amount of compensatory damages (those agreed upon in settlement and those awarded following trial) that the trial court determined were relevant for purposes of determining punitive damages.In the aftermath of the oil spill, ....
• A Vessel Under Construction is (Still) NOT a Vessel by Michael J. O'Brien In the recent case of Cain v. Transocean Offshore USA, Inc., et al., No. 05-300963, the United States Court of Appeals for the Fifth Circuit affirmed its long standing decision that a watercraft under construction is not a “vessel in navigation” for purposes of the Jones Act. The determination of whether a vessel is “in navigation” is a critical part of the “seaman status” analysis. Congress did not define the term “seaman” when it passed the Jones Act. Thus, it has been left to the Courts to interpret and define that term. The U.S. Supreme Court’s most recent holding defines a “seaman” as an “employee whose duties contribute to the function of a vessel or to the accomplishment of its mission, and who has connection to a vessel in navigation (or to an identifiable group of such vessels) that is substantial in terms of both its duration and nature.” Chandris, Inc. v. Latsis, 515, ....
• The TWIC: What Is It, Who Needs It, and How Can I Get It by Michael J. O'Brien The Transportation Worker Identification Credential (TWIC) is a new security measure established by Congress through the Maritime Transportation Security Act (MTSA) to ensure that individuals who pose a threat do not gain unescorted access to secure areas of the nation’s maritime transportation system. The TWIC is a tamper-resistant “smart card” containing an individual’s biometric (fingerprint) template to allow for a positive link between the card itself and the individual. The TWIC card is valid for five years.   Workers who require unescorted access to secure areas of ports, vessels, and outer continental shelf facilities will require a TWIC card. This includes mariners holding Coast Guard issued credentials, non-credentialed mariners in a vessel crew, facility employees who work in a secure area, truckers bringing/picking up cargo at a facility, agents, port chaplains, longshoremen, drayage truckers, surveyors, ....
• Jones Act and FELA Employers Enjoy Same Negligence Standard as Employees by Stephen C. Hanemann The United States Supreme Court recently held that a single standard of causation now applies when assessing the negligence of an employer and employee under FELA. Norfolk Southern R. Co. v. Timothy Sorrell, 127 S.Ct. 799, 166 L.Ed. 2d 638(1/10/07) (U.S. Reporter citation unavailable).  Because the Jones Act is modeled closely upon FELA’s statutory language, federal courts tend to apply the same analysis of negligence issues arising under both statutes. It appears that the Sorrell decision supports the conclusion of earlier maritime cases indicating that a Jones Act employer is held to the same standard of causation in a negligence analysis as his seaman-employeeThe Jones Act, 46 U.S.C.A. § 688, et seq, affords seaman employees rights parallel to those of railroad employees under the Federal Employers Liability Act (“FELA”), 45 U.S.C.A. § 51, et seq. Thus, by its incorporation of the FELA statutory language, the ....
• Jones Act Employers Have Recourse Against Negligent Employees by Stephen C. Hanemann The U.S. Fifth Circuit Court of Appeals has unequivocally held that a shipowner-employer may pursue a claim for reimbursement of costs for damage to property against its negligent seaman-employee. Withhart v. Otto Candies, 431 F.3d 840 (5th Cir. 2005). The seaman-employee in Witthart was a mate, or relief captain, who allegedly left the wheel house to attend to personal business while in command of the vessel. During his absence, the vessel, navigating through congested waters with no captain at the helm, collided with and damaged another vessel. The owner of the vessel under the command of the phantom captain, faced with a property damage suit exceeding $26,000.00, filed a counterclaim asserting negligence against its employee for leaving the wheelhouse while on watch.  The district court dismissed the counterclaim and the employer filed an appeal. The Fifth Circuit reversed the lower court’s dismissal of the shipowner’s ....
• Recovery of Non-Pecuniary Damages Prohibited Under Jones Act by Stephen C. Hanemann The issue of recovery of non-pecuniary damages [1] by a Jones Act seaman is one that often confronts both the seaman’s employer and non-employer third-parties from whom damages are sought. No case sets forth a more succinct resolution of this issue than Scarborough v. ClemcoInd., 391 F.3d 660 (5th Cir. 2004). Under the Fifth Circuit’s holding in Scarborough and its progeny, both Jones Act employers and non-employer third-parties sued by either a seaman or his survivors are able to rest easy knowing that they will not have to pay non-pecuniary damages – at least for now considering that no case has given negative treatment to the Scarborough decision.     The United States Supreme Court, interpreting the Jones Act/FELA survival provision limiting a deceased seaman’s recovery to losses suffered during the decedent’s lifetime, unequivocally holds that representatives of a seaman’s estate may not recover ....