Circuit Courts Split Over Outer Continental Shelf Lands Act

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Jury Trial and the Jones Act

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Recent Longshore Decisions

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An Injured Jones Act Seaman has Maintenance and Cure Rights

The right to maintenance and cure is the most basic right of a seaman laid down in ancient maritime law, and it never fails to surprise maritime attorneys when employers deny or delay these basic privileges of the Jones Act seaman.

Maintenance and cure benefits were topmost on my mind when I read this report about a crewmember off the coast of Galveston, who had to be medevaced from a vessel after he fell on board, and suffered broken bones. The incident took place on the motor vessel Sicily.  Fortunately, the Coast Guard was able to evacuate the crewmember, and he is currently recuperating at the University of Texas Medical Center in Houston.

Maritime Attorneys can Help Recover Maintenance and Cure Benefits

The right to maintenance, which includes expenses related to house rent, groceries, and utilities begins as soon as the injury occurs. The amount of maintenance is also an issue that frequently lands before a maritime lawyer. Maritime statutes don't lay down a specific amount that must be paid to an injured seaman, and the rate can vary.

Often, an employer may try to set a certain standard low rate for maintenance, telling the worker that this is the rate that has been set down for all seamen. As a maritime attorney, I want to make this very clear - you should not have to settle for any amount that your employer sets down, if this amount is too low for you to meet your basic daily needs.

Cure benefits refer to medical expenses incurred after the injury, including hospital costs, medication costs, and physical therapy. Cure expenses may also include unseen expenses, like the cost of travel to and from a doctor's clinic. This is also the responsibility of the employer, and will continue to be so, even if the worker is somehow responsible for his own accident.

I hope that the injured worker is here is aware of his rights to receive maintenance and cure payments that have already kicked in.

Please contact SMSH Attorney Dennis M. McElwee with your maintenance and cure or other wage-related claims.  Dennis has had over 20 years of experience handling these cases and will be happy to speak with you about your claims.  He can be reached at (800) 282-2122 or via e-mail at dmcelwee@smslegal.com.

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Recent Significant Decisions Related to Longshore Cases

Dyer v. Cenex Harvest States Coop., 563 F.3d 1044 (9th Cir. 2009)

Reversing the Board's decision, the Ninth Circuit holds that a successful claimant was entitled to recover reasonable attorney fees under Section 28(a) of the LHWCA for work performed both before and after the workers' compensation insurer or employer declined to pay compensation; thus, a successful claimant was entitled to both pre- and post-controversion attorney fees.

The following four conditions must be satisfied in order to receive attorney fees under § 28(a) of the LHWCA: (1) the worker must file a claim with the District Director, (2) the employer must receive notice of the claim from the District Director, (3) the employer must decline to pay compensation or not respond within 30 days, and (4) the worker must thereafter utilize the services of an attorney to prosecute his claim

Coastal Prod. Servs., Inc. v. Hudson, __ F.3d __, 2009 WL 1270457 (5th Cir. 2009)(en banc).

In a split decision, the Fifth Circuit denied a petition for rehearing and rehearing en banc of its earlier decision in Coastal Prod. Servs. v. Hudson, which held that the requirements of situs and status under the LHWCA were satisfied where a platform operator was injured on a fixed production platform located in state waters. There, the Court had held that although the fixed platform also served the arguably non-maritime purpose of production, the platform was part of the "general area" used as part of the "overall loading process" adjoining navigable waters, and was therefore a maritime situs.

Friede-Goldman Halter Inc. v. Escareno, No. 08-60064, 2009 WL 1180896 (5th Cir. 2009)(Unreported).

The Court affirmed the Board's award of benefits, attorney's fees and interest under the LHWCA against Texas Property Casualty Insurance Guaranty Association (TPCIGA). TPCIGA is a state-created association which pays claims for insolvent insurers.

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Fifth Citcuit Rules on LHWCA - Exclusivity of Remedy and Third Party Liability

In Carey v. Hercules Ocean Corp., the U.S. Court of Appeals for the Fifth Circuit upheld the District Court's apportionment of fault under Section 5(b) of the Longshore and Harbor Workers' Compensation Act (LHWCA) with respect to a claimant who was injured while working as a member of a longshoremen's crew securing the mooring lines of a ship. Section 5(b) of the Act provides that when an individual covered by the Act is injured by the negligence of a vessel, then the individual may bring a negligence action against the vessel as a third party under Section 33 of the Act. 33. U.S.C. § 905(b).

Both the District Court and Court of Appeals considered the rule that "proximate cause may not be established by speculation or conjecture, but instead must be based on evidence that provides some probative force." However, the Court of Appeals noted that proximate cause can be based on inferences arising from the factual circumstances presented, and it concluded that the testimony of Carey's crew provided evidence of causation sufficient to sustain the District Court's findings of negligence and apportionment of fault.

SMSH Partner Dennis McElwee has been representing injured Longshoremen for over twenty years.  Please contact Mr. McElwee at (800) 282-2122 for an evaluation of your case.

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Recent Notable Cases Around the Country

VAN SKIKE V. OWCP - In a challenge to the Office of Workers' Compensation Programs' (OWCP) decision setting an attorney's fee for a prevailing claimant, the OWCP's decision is vacated in part, where the fee award was not based on substantial evidence, but affirmed in part, where the claimant failed to preserve the issue of whether the award was delayed.

Wheaton v. Golden Gate Bridge, Hwy. & Transp. Dist. - Petitioner's petition for review of the Office of Workers' Compensation's denial of benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA) is denied, where a municipal transportation district was a "subdivision" of the State of California under 33 U.S.C. section 903(b) and thus Petitioner was not entitled to benefits.

Ondimar Transportes Maritimos v. Beatty Street Properties, Inc. - The US Court of Appeals for the Fifth Circuit ruled that, under general maritime law, assignment of tort claims from the injured party to one tortfeasor permitting the settling defendant to proceed against a co-tortfeasor is invalid. In the instant case, plaintiff’s vessel allided with and damaged a dock. The dock owner asserted a claim against the vessel owner, who contended that the allision was due to the disruption of its vessel’s VHF communications with attending tugs by the improper use of radios on nearby defendant’s vessel. Plaintiff notified defendant of the dock owner’s claim, but did not include defendant in the settlement negotiations with the dock owner. As part of that settlement, plaintiff received an assignment of the dock owner’s potential claim against defendant. Plaintiff then brought suit against defendant for damages to plaintiff’s vessel and for the damage to the dock. Following defendant’s motion for partial summary judgment, the trial court dismissed the claim for damages to the dock. Plaintiff appealed. The appellate court affirmed, holding that contribution claims between a settling defendant and a co-tortfeasor are prohibited

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