July 2019 Longshore/Maritime Update (No. 242 )
Notes from your Updater:
On May 31, 2019, the Texas Supreme Court declined to rehear its decision in Anaadarko Petroleum Corp. v. Houston Casualty Co. (February 2019 Update), awarding coverage to Anadarko against its insurers arising out of the Deepwater Horizon/Macondo incident.
On June 3, 2019, the United States Supreme Court granted certiorari in a case involving the discovery of Blackbeard’s flagship, QUEEN ANNE’S REVENGE, and the copyright of the videos and photos of the salvage of the ship. No. 18-877, Allen v. Cooper. The issue presented to the Supreme Court involves copyright law, not maritime law: “Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Classification Act . . . in providing remedies for authors of original expression whose federal copyrights are infringed by States.”
On June 26, 2019, the United States Supreme Court, in Kisor v. Wilkie, No. 18-15, declined to overrule the Auer deference rule for an agency’s reasonable interpretation of its own ambiguous regulation while reinforcing its limits. Chief Justice Roberts’ concurring opinion noted that the Court’s decision did not touch upon Chevron deference to agency interpretations of statutes enacted by Congress.
The briefing on the merits in the Supreme Court over the safe berth warranty has been extended so that the briefs for the respondents are now due on September 10, 2019. CITGO Asphalt Refining Co. v. Frescati Shipping Co., No. 18-565.
On the LHWCA Front . . .
From the federal appellate courts:
Railroad employee replacing crossties on bridge spanning navigable waters not injured on covered situs so LHWCA does not apply. Muhammad v. Norfolk Southern Railway Co., No. 18-1695, 2019 U.S. App. Lexis 16773 (4th Cir. June 4, 2019) (Niemeyer).
Muhammad was a carpenter in the bridge and building maintenance department for Norfolk Southern Railway. He was injured (on the bridge) while replacing railroad crossties for the Railroad’s bridge crossing the navigable Elizabeth River (the center span of the bridge lifts to allow vessels to navigate under the bridge). Muhammad brought an FELA action against the Railroad, which argued that the court lacked jurisdiction because of the exclusive jurisdiction under the LHWCA. The district court held that the situs requirement was met because the bridge was over navigable waters and allowed ships to pass underneath it, aiding navigation of maritime traffic. The district court held that the status requirement was met because repairing the bridge was an essential and integral element of loading and unloading maritime traffic on vessels navigating under the bridge as well as to rail traffic traveling over the bridge to nearby loading facilities. The Fourth Circuit agreed that, if the LHWCA were applicable, it would provide the exclusive remedy against the Railroad and would displace the FELA action. The displacement (called preemption by the court) would not deprive the district court of jurisdiction, but a suit brought under the LHWCA (where the remedy is administrative) would not have afforded the court subject matter jurisdiction). The Fourth Circuit then addressed the situs requirement for the LHWCA and held that the injury on the railroad bridge over navigable waters did not satisfy the pre-1972 requirement that the worker be injured on navigable waters. Therefore, the court considered whether there was situs based on the landward extension of the 1972 Amendments to “any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel.” As Muhammad was not injured on one of the enumerated areas, the appellate court focused on whether the bridge was an “other adjoining area” that must be involved in the loading or unloading of cargo onto ships in navigable waters or the repairing, dismantling, or building of those ships. The Fourth Circuit held that the location on the bridge where Muhammad was injured was only accessible by land and was not contiguous to the water. Additionally, the court rejected the district court’s analysis that allowing vessels to pass underneath the bridge was integral to loading or unloading a vessel. As the court of appeals concluded that Muhammad failed the situs test, it did not have to decide whether he satisfied the status test. Thanks to Eric Richardson with Gallagher Bassett in San Diego for bringing this case to our attention.
Claimant did not carry burden to establish that he had restrictions due to his back and hip condition, so he is limited to his scheduled disability to the left leg. Hernandez v. National Steel & Shipbuilding Co., No. 18-72944, 2019 U.S. App. Lexis 17783 (9th Cir. June 13, 2019) (per curiam).
Xavier Hernandez sustained a knee injury while working as a welder, and Judge Larsen found that his back and hip conditions were related to the knee injury. Judge Larsen interpreted the report of Dr. Raiszadeh, that diagnosed both the back and knee conditions but did not specify which of these conditions caused the limitations he imposed, as not restricting Hernandez from working based on his back and hip conditions. Therefore, he awarded Hernandez a 25% disability to his left leg and no general disability for his back or hip. Holding that Hernandez had the burden to establish that he had restrictions to his back and hip that rendered him unable to perform his usual work, Judge Larsen held that Hernandez had not satisfied his burden of proof, and the Benefits Review Board and Ninth Circuit both upheld his decision.
From the federal district courts:
Remand denied for mesothelioma case against shipyard that was removed under the Federal Officer Removal Statute. Knight v. Huntington Ingalls Inc., No. 18-9421, 2019 U.S. Dist. Lexis 91362 (E.D. La. May 31, 2019) (Lemelle).
The survivors of a shipyard worker who died from mesothelioma allegedly caused by exposure to asbestos filed suit against his employer and other defendants in Louisiana state court, and the Avondale interests removed the case to federal court based on the Federal Officer Removal Statute. Avondale argued that it had colorable federal defenses—government contractor immunity and exclusive liability under the LHWCA–so that removal was proper even though some of the plaintiffs disclaimed any cause of action for exposure to asbestos caused by a party under direction of an officer of the United States. Judge Lemelle concluded that remand was not warranted at this stage of the proceedings and denied the motion to remand.
No vessel breach of duty for ladder without skid-resistant feet. Dukes v. Millennium Ocean Shipping Co., No. 4:18-cv-012, 2019 U.S. Dist. Lexis 92547 (S.D. Ga. June 3, 2019) (Moore).
Dukes was employed by Ports America to assist with the loading of paper rolls on the ATLANTIC PENDANT in the Port of Savannah. The stowage of the rolls required that a longshore worker access the top of the rolls that were 8 to 10 feet in height to guide subsequent rolls into place. Dukes used a ladder in the hold of the ship without checking to see if it had skid-resistant feet, and the ladder moved underneath him, causing him to fall to the deck of the hold. After his fall, Dukes noticed the lack of skid-resistant feet and continued to work while a co-worker held the ladder. When Dukes brought suit against the vessel in Georgia state court against the owner and manager of the vessel, the defendants removed the case to federal court and filed a motion for summary judgment denying that they owned the ladder and arguing that they did not breach the Scindia duties. There were no marks on the ladder to suggest that the defendants owned it, and there was no way to determine who owned the ladder because the vessel had been sold before the suit was brought. Although Judge Moore doubted that Dukes could actually establish that the defendants owned the ladder, he held that the testimony of a co-worker that he observed the ladder being passed into the hold of the ship by one of the ship’s crew members to be sufficient to survive the motion for summary judgment. Nonetheless, Judge Moore granted summary judgment on the ground that the defendants did not violate the turnover duty for two reasons. First, there was no evidence that the absence of skid-resistant feet constituted a hazard that was unreasonably safe and required a warning. OSHA regulations do not require skid-resistant feet and only require that the ladder be held by another person. Dukes’ partner was standing ten feet away at the time of the accident and could have held the ladder. Second, the alleged hazard was one that Dukes should have recognized as an experienced longshoreman, obviating any duty to warn.
No lifting of the limitation stay in action against vessel and shipyard with unilateral stipulation by the claimant. In re Great Lakes Dredge & Dock Co., No. 2:18-cv-676, 2019 U.S. Dist. Lexis 93903 (E.D. Va. June 4, 2019) (Morgan).
Taylor was injured while working on a booster barge and brought suit in state court in Norfolk against the owner of the barge, Great Lakes Dredge & Dock Co., and the shipyard, Colonna’s Shipyard. Taylor sought $15 million under Section 905(b) of the LHWCA. Great Lakes filed a limitation action and posted security of $6.426 million, and Taylor and Colonna’s (indemnity and contribution) filed claims in the limitation action. Arguing that the claims of Colonna’s were derivative of his claims, Taylor filed stipulations as a single claimant and moved to lift the stay. Colonna’s did not agree to the stipulations. Agreeing with a majority of federal courts, Judge Morgan held that the contribution/indemnity claim created a multiple claimant situation, and, without a stipulation by all claimants, he could not lift the stay.
LHWCA, not Louisiana Workers’ Compensation Act, applies to worker killed in pipeline accident on drilling platform in Louisiana state waters. Mays v. Chevron Pipe Line Co., No. 14-3098, 2019 U.S Dist. Lexis 103751 (W.D. La. June 18, 2019) (Jackson).
James Mays was killed when components of a pressurized valve dislodged and struck him in the head, and his beneficiaries brought suit against Chevron under Louisiana law. Mays was a payroll employee of Furmanite, and Chevron, owner of the pipeline, sought to invoke the statutory employer immunity from the Louisiana Workers’ Compensation Act, contending that the LHWCA did not apply. The question presented was the application of the Valladolid test whether there was a substantial nexus between Mays’ death and oil and gas operations on the outer Continental Shelf. Chevron argued that Mays could not show any causal link between Furmanite’s operations (as his employer) on the OCS and Mays’ death as the work performed by Mays was in state waters. However, Judge Jackson disagreed with Chevron and held that the Fifth Circuit’s decision in Barger governed the case. Barger was a helicopter pilot whose employer was not engaged in extractive operations on the OCS, but its transportation of men and equipment played an important role in developing the OCS, and they should not be treated differently whether they are employed directly by a producer or by a contractor. Applying that principle, Mays’ death was caused by the release of pressurized gas being transported by pipeline from the OCS. Thus, Judge Jackson held that his death did have a substantial nexus to extractive operations on the OCS and was covered by the LHWCA, not the Louisiana Act. Judge Jackson did grant a remittitur of $527.54, resulting in a judgment against Chevron of $2,059,257.31 under Louisiana law.
And on the Maritime Front . . .
From the United States Supreme Court:
State law not adopted as surrogate federal law on the outer Continental Shelf when federal law addresses the relevant issue. Parker Drilling Management Services, Ltd. v. Newton, No. 18-389 (June 10, 2019) (Thomas).
Newton worked for Parker Drilling on platforms on the outer Continental Shelf offshore California. He was paid more than the minimum requirements under federal law, but he was not compensated for his standby time under California law. The question was whether California law could supplement federal law in an OCS case when there was no gap in federal law. The Outer Continental Shelf Lands Act adopts the laws of the adjacent state as surrogate federal law to the extent that they are applicable and not inconsistent with other federal law. Newton argued, and the Ninth Circuit agreed, that state law was applicable whenever it pertained to the subject matter and was only inconsistent with federal law if it was incompatible with the federal scheme. That is contrary to the position taken in the Fifth Circuit where most offshore oil and gas exploration occurs. In essence, Newton argued that state law was inconsistent with federal law if it would be pre-empted under ordinary pre-emption principles. As Federal labor law accommodates more protective state wage and hour laws, Newton argued that the state laws were not inconsistent with federal law and should apply as surrogate federal law. The Supreme Court unanimously disagreed with the Ninth Circuit, holding that state laws are applicable and not inconsistent with federal law (under the OCSLA) only if federal law does not address the relevant issue. Thus, to the extent federal law applies to a particular issue, state law is inapplicable. Justice Thomas added that state law might even be inconsistent with federal law absent an on-point federal law if federal law contained a deliberate gap, making state law inconsistent with the federal scheme. As federal law addresses the minimum wage on the OCS, the California law was not adopted as federal law and did not apply on the OCS.
Seamen may not recover punitive damages for unseaworthiness. Dutra Group v. Batterton, No. 18-266, 2019 U.S. Lexis 4202 (U.S. June 24, 2019) (Alito).
Batterton was injured on Dutra’s scow near Newport Beach, California when his hand was caught between a bulkhead and a hatch that blew open as a result of unventilated air accumulating and pressurizing within the compartment. He brought suit against his employer for negligence under the Jones Act and for unseaworthiness, maintenance and cure, and unearned wages under the general maritime law, seeking both general and punitive damages. Dutra moved to strike Batterton’s claim for punitive damages on the ground that they are unavailable for unseaworthiness claims, but the district court denied the motion and the Ninth Circuit affirmed, holding that punitive damages are available for unseaworthiness claims. As that decision conflicted with the en banc decision of the Fifth Circuit in McBride v. Estis Well Service, the Supreme Court granted certiorari. The resolution of the case depended on the decisions of the Court in Miles and Atlantic Sounding. In holding that non-pecuniary loss of society may not be recovered for the death of a seaman in state waters, the Court in Miles noted that the Court should look primarily to legislative enactments for guidance in determining the damages in a seaman’s case and that the Court could supplement the statutory remedies only to vindicate the policies served by the statutes. Recognizing the difference between the contractual remedy for maintenance and cure and the tort remedies of Jones Act negligence and unseaworthiness, the Atlantic Sounding case created a “gloss” on Miles that allowed recovery of punitive damages in maintenance and cure cases as a departure from the statutory remedial scheme based on the established history of awarding punitive damages in maintenance and cure cases. After careful analysis of the unseaworthiness cases, however, Justice Alito found no history of the award of punitive damages in unseaworthiness cases, causing him to then address whether the Court was compelled on policy grounds to allow punitive damages for unseaworthiness claims. Following Justice O’Connor’s reasoning in Miles, that the overriding objective is to pursue the policy expressed in Congressional enactments, Justice Alito reasoned that it would exceed the Court’s current role to introduce novel remedies contradictory to those Congress has provided in similar areas (Jones Act negligence). Therefore, Justice Alito held that a seaman may not recover punitive damages on a claim of unseaworthiness. He was joined in his opinion by Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch, and Kavanaugh. Justice Ginsburg wrote a dissenting opinion, joined by Justices Breyer and Sotomayor, that would have affirmed the Ninth Circuit.
From the federal appellate courts:
Claim by energy cooperative pursuant to Deepwater Horizon Economic and Property Damages Settlement Agreement is not established just because the cooperative’s distributors were able to recover. Claimant ID 100271726 v. BP Exploration & Production, Inc., No. 18-31117, 2019 U.S. App. Lexis 16805 (5th Cir. May 30, 2019).
PowerSouth is an energy cooperative that generates electricity and provides it to retail distributors, who then distribute it to consumers. It filed 20 claims pursuant to the Deepwater Horizon Economic and Property Damages Settlement Agreement. This claim is for its headquarters in Zone D, where specific causation requirements are required. PowerSouth argued that two of its distribution members received compensation from the settlement fund, and PowerSouth proportionally experienced those losses and should similarly receive compensation. The Fifth Circuit did not consider that argument to be a substitute for the evidence of causation and affirmed the denial of the claim.
No res, no attachment. Psara Energy Ltd. V. Space Shipping Ltd., No. 17-3781-cv, 2019 U.S. App. Lexis 17003 (2d Cir. June 4, 2019) (per curiam).
Psara Energy brought a maritime attachment case under Supplemental Rule B seeing to garnish an award owed to Space Shipping by ST Shipping of $19.6 million. The district court vacated its initial attachment order when it concluded that the debt was not located within the district, and Psara appealed to the Second Circuit. ST Shipping then brought an action in the English High Court of Justice to resolve the competing claims to the debt, and that court distributed to Psara the amount that Space conceded it owed to Psara and distributed the remainder to Space. As the debt was paid pursuant to that judgment, the Second Circuit held that the res (debt) sought to be attached was no longer in ST Shipping’s (the garnishee’s) possession and there was nothing to attach. Psara asked the appellate court to restore the res to ST Shipping so that the res was once again attachable, but the Second Circuit declined, giving comity to the English decision. Psara argued that no comity should be extended because the English court did not give comity to the American court, but the Second Circuit rejected that argument. There was no attachment order in place when the English court rendered its decision, so there was no order to which it should have given comity.
Outside engineering services engaged by engineering firm are more like contract labor than professional services for decision whether they are variable or fixed expenses. BP Exploration & Production, Inc. v. Claimant ID 100301594, No. 18-30747, 2019 U.S. App. Lexis 17600 (5th Cir. June 12, 2019) (per curiam).
This is a claim for damages from the Deepwater Horizon Economic and Property Damages Settlement Agreement by an engineering firm that expended sums for outside engineering services. The Agreement treats professional services as fixed expenses and not variable costs, and that classification of the engineering services would have dramatically increased the claim in this case. The Fifth Circuit considered the expenses more like contract labor expenses, which are variable costs, and remanded for a determination as to the substantive nature of the services (whether the expenses vary with product output).
Post-deposition declaration of seaman should not have been excluded under the sham affidavit rule. Cannon v. Austal USA LLC, No. 17-56804, 2019 U.S. App. Lexis 18086 (9th Cir. June 17, 2019) (per curiam).
The district court granted summary judgment that the seaman’s claims were time barred based on his deposition testimony that he was injured a day or two after the vessel returned from sea trials, during August 2013. The district court declined to consider the seaman’s post-deposition declaration stating that the accident occurred on the date that an incident report was completed, which listed the date of the accident as November 25, 2013. The Ninth Circuit held that the district court abused its discretion in excluding the post-deposition declaration under the sham affidavit rule, noting that the seaman never identified the date of the accident in his deposition and the accident report contained the November date. Thus, there was not a clear and unambiguous inconsistency between the testimony and declaration, and they created a fact issue as to the date of the accident.
Louisiana law bars release/waiver in contract for construction of offshore riser system to the extent of intentional or gross fault. Petrobras America Inc. v. Vicinay Cadenas, S.A., No. 18-20532, 2019 U.S. App. Lexis 18200 (5th Cir. June 18, 2019) (per curiam).
This case involves a contract for the construction of a free-standing hybrid riser system to move crude oil from wellheads on the ocean floor to a floating production storage and offloading facility at the ocean’s surface. After the Fifth Circuit’s original holding (August 2016 Update) that the mandatory choice-of-law provision in the Outer Continental Shelf Lands Act applied so that Louisiana law and not maritime law applied to the claim of the oil and gas producer against the manufacturer of marine chains, the Fifth Circuit held that Louisiana law invalidated the release and waiver in the parties’ contract to the extent of intentional or gross fault.
Matching expenses and revenue for the Deepwater Horizon Economic and Property Damages Settlement Agreement permits moving revenue and variable expenses to ensure matching. In re: Deepwater Horizon, No. 17-30727 (5th Cir. June 26, 2019) (Oldham).
This is another appeal to the Fifth Circuit over the interpretation of the Deepwater Horizon Economic and Property Damages Settlement Agreement. Business economic losses are compensated based on the difference between a business’s actual profits during a three-month period after the spill and its expected profits for that period based on a comparable period before the spill. However, the Fifth Circuit has held that costs must be registered in the same month as corresponding revenue, regardless of when the costs are incurred. In order to comply with this mandate, the Fifth Circuit held that revenue and/or expenses may be moved as necessary, not just to correct an error, but to correct any matching issues.
From the federal district courts:
Platform owner’s payment of premiums on behalf of the Company Group satisfies Marcel exception to the LOIA. Durr v. GOL, LLC, No. 18-3742, 2019 U.S. Dist. Lexis 91927 (E.D. La. May 31, 2019) (Ashe).
Plaintiff Durr was employed by Linear Controls and was injured during a personnel-basket transfer from the M/V HANNAH C, owned and operated by REC Marine and GOL, to a fixed platform on the outer Continental Shelf offshore Louisiana owned by Fieldwood, and operated by Wood Group. When Durr sued all of these parties, Wood Group and REC/GOL brought third-party actions against Linear and its insurers seeking indemnity and insurance coverage. Both asserted that they fell within the scope of Linear’s indemnity that extended to Fieldwood and its Company Group, which included invitees of Fieldwood. Judge Ashe agreed that Wood Group, which was a contractor of Linear, was an invitee, but denied that REC/GOL, which was a contractor of a contractor and not on premises owned by Fieldwood, was an invitee. However, Judge Ashe did conclude that REC/GOL was entitled to insurance and indemnity as members of the Third Party Contractor Group under the Linear/Fieldwood contract. The Louisiana Oilfield Indemnity Act would bar the indemnity and insurance provisions unless the Marcel exception were established—that the premiums for the insurance covering the indemnitees and the indemnity obligation to the indemnitees were paid by the indemnitee and not by the indemnitor. In this case, Fieldwood paid the premiums for itself and the Company Group, and Judge Ashe considered that sufficient for Wood Group as a member of the Company Group and for REC/GOL as a member of the Third Party Contractor Group as long as Fieldwood’s payment of the Marcel premium covered REC/GOL.
Limitation injunction applies to the benefit of the beneficial owner of the vessel. In re Lava Ocean Tours Inc., No. 19-00023, 2019 U.S. Dist. Lexis 91948 (D. Hawaii May 31, 2019) (Kobayashi).
This case involves a limitation action brought by Lava Ocean Tours after its excursion vessel, M/V HOT SPOT, used to take passengers to view lava flows from the Kilauea Volcano, was struck by lava rock from an offshore submarine volcanic event. The Tilton claimants brought an action in state court against Lava Ocean Tours and its sole officer and shareholder, Shane Turpin, and proceeded with the lawsuit against Turpin even after the limitation injunction (that did not name Turpin) was issued. Judge Kobayashi agreed with Turbin that in accordance with the precedent from the Supreme Court, the beneficial owner should be covered by the limitation injunction, so the injunction/restraining order was modified to apply with equal force to all claims against Turpin as well.
Multiple claimants can stipulate to pro-rata division of limitation fund and have limitation stay lifted. In re Weeks Marine, Inc., No. 18-16702, 2019 U.S. Dist. Lexis 91356 (D.N.J. May 31, 2019) (Vazquez).
After an explosion on petitioner’s vessel, C.R. MCCASKILL, four workers brought suit in New Jersey state court against petitioner, and petitioner filed a petition for limitation of liability in New Jersey federal court, resulting in the stay of the state proceedings after petitioner posted a letter of undertaking of $32 million. In order to lift the stay, the claimants entered into stipulations that included capping their claims at the limitation amount in the event limitation were successful and dividing the proceeds among the claimants pro-rata in the event their claims exceeded the limitation fund. Agreeing that the stipulations converted the claims into a single claim situation, Judge Vazquez dissolved the limitation injunction and dismissed the limitation action without prejudice to be reopened in the event the claimants are awarded in excess of $32 million in the state court action.
Chad Barnes still cannot overcome the bankruptcy court. Barnes v. Sea Hawai’i Rafting, LLC, No. 13-00002, 2019 U.S. Dist. Lexis 91479 (D. Hawaii May 31, 2019) (Kay).
The long saga of Barnes’ efforts to proceed in admiralty court despite the bankruptcies of the defendants (see June 2019 Update) met another roadblock when the district judge held that the references to the bankruptcy court would not be withdrawn as the bankruptcies had either been completed or there was nothing left for the bankruptcy court to do.
Cruise line not liable to passenger on strict products liability theory. Bender v. Royal Caribbean Cruises Ltd., No. 19-cv-21188, 2019 U.S. Dist. Lexis 92466 (S.D. Fla. May 31, 2019) (Ungaro).
Laura Bender was injured on the ice-skating rink of a cruise ship owned and operated by the defendant. She sued the cruise line on a maritime strict liability theory, arguing that the defendant was the manufacturer, designer, installer, utilizer, and distributor of the rink. In response to the defendant’s contention that a cruise ship is not strictly liable for defective products on the ship, the plaintiff argued that the defendant was liable as the manufacturer of the ice-skating rink, not as owner/operator of the vessel. However, as the plaintiff did not plausibly allege (Iqbal/Twombly) that the defendant sold or manufactured the product or was engaged in that business, it could not be liable under a products liability theory, and her complaint was dismissed with prejudice.
Letters from plaintiffs’ counsel insufficient to trigger the six-month period to file limitation of liability. In re Harten, No. 19-cv-454, 2019 U.S. Dist. Lexis 93443 (E.D.N.Y. June 4, 2019) (Gershon).
There was a collision between the vessel with Diane and Carl Velloza (Claimants) and the vessel with Deborah Harten and Ralph Cassarino (Petitioners) on July 8, 2018 off Staten Island. Two days later, on July 10, 2018, counsel for the Claimants sent a letter to each Petitioner giving notice of the representation and of the intent to pursue a claim for personal injuries. The letters requested that the Petitioners notify their insurers, specifically including any umbrella insurer. On July 24, 2016, the Claimants filed suit in state court in New York seeking $50,000 in property damage and unspecified damages for serious personal injury to Ms. Velloza along with damages for loss of society for Mr. Velloza. That case was timely removed to federal court based on admiralty jurisdiction. On January 23, 2019, more than six months from the demands but less than six months from the filing of the suit, Petitioners filed a federal limitation of liability action. The Claimants asserted that it was untimely based on the notice letters sent by their counsel, specifically noting the reference to umbrella insurance. Judge Gershon disagreed, pointing out that the letters did not indicate the severity of the injuries. Although the notice need only indicate that it is “reasonably possible” to infer that the amount of damages sought by the Claimants would exceed the value of the vessel, Judge Gershon did not believe that the letters indicated the amount of damages may have exceeded the value of the vessel. Judge Gershon did require that the limitation petition be amended to provide more sufficient facts on Petitioners’ right to limitation.
Discovery allowed to determine if service was proper on foreign vessel owner/operator. Kholkar Vishveshwar Ganpat v. Eastern Pacific Shipping, PTE. Ltd., No. 18-13556, 2019 U.S. Dist. Lexis 93134 (E.D. La. June 4, 2019) (Morgan).
Ganpat alleged that he contracted malaria while working as a seaman on the M/V STARGATE, owned and operated by the defendant, an international ship management company with its principal place of business in Singapore. When he served the complaint on the captain of the M/V BANDA SEA, the defendant moved to dismiss the claim for improper service. Ganpat contended that the Captain was a managing agent of the defendant so that service was proper and asked Judge Morgan to permit discovery on the validity of the service. Judge Morgan agreed and permitted Ganpat to serve written discovery and to take a Rule 30(b)(6) deposition with respect to whether the Captain was a managing agent.
Lien awarded against supply vessels for bunkers to be delivered by the supply vessels to offshore seismic vessels. Martin Energy Services, LLC v. M/V BOURBON PETREL, Nos. 14-2986, 15-79, 15-81, 2019 U.S. Dist. Lexis 95702 (E.D. La. June 6, 2019) (Fallon).
This case involves claims of liens necessitated by the bankruptcy of O.W. Bunker. Martin Energy supplied fuel for a fleet of seismic vessels chartered by CGG. Initially, CGG purchased the fuel directly from Martin Energy, but then CGG ran out of credit with Martin Energy and began purchasing fuel through O.W. Bunker, with Martin Energy selected as the supplier of the fuel. The fuel was delivered to the seismic vessels by three supply vessels. When O.W. Bunker declared bankruptcy and failed to pay Martin Energy, Martin Energy brought in rem actions against the three supply vessels, asserting that the fuel qualified as necessaries for the supply vessels even though the fuel was for the use of the seismic vessels. Martin Energy issued its invoices to the Supply Vessels in care of O.W. Bunker. Judge Fallon held that Martin Energy did have a lien on the supply vessels. First, he held that even though the fuel was essentially cargo being delivered by the supply vessels, the bunkers were necessary for these vessels to perform their function as seismic support vessels (essentially serving as floating gas stations for the seismic vessels). Second, Martin Energy must have provided the fuel on the order of a person authorized by the owner of the supply vessels. As Martin Energy supplied the fuel at the request of O.W. Bunker, the case fell within the “subcontractor” line of cases from the Fifth Circuit, holding that subcontractors may not assert a lien on their own behalf unless they can show that the entity authorized to bind the ship controlled the selection of the subcontractor and/or its performance. Here, Judge Fallon found that CGC controlled the selection of Martin Energy by selecting the quotes from Martin Energy (lowest price). Finally, the evidence that Martin Energy refused to extend credit directly to CGG and instead contracted with O.W. Bunker did not overcome the presumption that Martin Energy relied on the credit of the supply vessels.
Pro se plaintiff’s suit dismissed and defendant awarded fees and nontaxable costs as sanction. Martins v. Royal Caribbean Cruises, Ltd., No. 15-21124, 2019 U.S. Dist. Lexis 96156 (S.D. Fla. June 7, 2019) (Goodman).
“Proceeding as a pro se litigant is a sometimes-risky, danger-lurking scenario, riddled with hazardous hurdles and substantial legal perils.” This case involves the death of a passenger on the EXPLORER OF THE SEAS allegedly caused by ingestion of bacteria-laden food and improper medical care. The passenger’s mother, Marla Martins, brought this suit against the cruise line, and, while represented by counsel, may have agreed to settle the case for $500,000. When Ms. Martins refused to sign the release, her counsel withdrew and she was briefly represented by other counsel before she started representing herself. On the day the case was set for trial with a jury in the hallway, Ms. Martins asked for a continuance and announced that she was not ready for trial. Judge Goodman ultimately did not dismiss the case with prejudice at that time, but, after Ms. Martins declined to comply with numerous court orders, Judge Goodman did finally dismiss the case with prejudice and agreed to award attorney’s fees and nontaxable costs to the cruise line.
Seaman’s attorney awarded fees for motion to compel answers to discovery. Cuevas v. Crosby Dredging, LLC, No. 18-9405, 2019 U.S. Dist. Lexis 96526 (E.D. La. June 7, 2019) (Roby).
The motion to fix attorney’s fees arose after the granting of the seaman’s motion to compel answers to interrogatories and responses to requests for production of documents from the defendant. The attorney sought $1500 for six hours of work (4 hours for the motion and 2 hours for the reply) at a rate of $250 per hour. Magistrate Judge Roby ruled that the fair rate for the 7-year lawyer in New Orleans was $195 per hour, and she agreed that four hours was fair for the motion but denied recovery for the reply. Therefore, her award was $780.
Root Cause Analysis report after ship collision is discoverable. In re B&C Seafood LLC, No. 18-1560, 2019 U.S. Dist. Lexis 95693 (D.N.J. June 7, 2019) (Schneider).
After a collision between the F/V TOOTS II and the M/V OLEANDER, the OLEANDER interests retained a law firm, which retained Safety Management Systems, an occupational safety consulting firm, to conduct an investigation of the collision and to prepare a report on a possible root cause for the incident. Although the law firm argued that the report was prepared primarily to assist in preparation for litigation, Judge Schneider reviewed the report and concluded that it was primarily prepared for future risk mitigation and not litigation. Therefore, he ordered that the report be produced.
Passenger’s shotgun pleading dismissed. King v. Carnival Cruise Lines, Inc., No. 19-22251, 2019 U.S. Dist. Lexis 96556 (S.D. Fla. June 7, 2019) (Scola).
The complaint in this case alleged that King, a passenger on defendant’s vessel, slipped in a pool of ketchup on the deck. King asserted various theories of negligence in a single paragraph that spanned 13 lines. Rejecting the complaint as a shotgun pleading, Judge Scola noted that the distinct theories of liability should not be lumped together in one count for negligence. Judge Scola gave a deadline to file an amended complaint that complied with Iqbal/Twombly and also pointed out that the theory of res ipsa loquitur is an evidentiary doctrine that is not pled as a separate cause of action. Judge Scola also noted that the case was brought in admiralty so King would either need to remove the jury-trial demand or file a memorandum explaining why a jury trial was permissible.
Judge allows seaman to add defendants after the running of the statute of limitations. Taylor v. B&J Martin, Inc., No. 18-8941, 2019 U.S. Dist. Lexis 96619 (E.D. La. June 10, 2019) (Zainey).
The seaman brought his original action, seeking to recover for injuries when he stepped on a cigarette lighter and fell on the deck of the F/V DUSTY DAWN against B&J Martin and Rooster Oil and Gas. That complaint was within the three-year statute of limitations. After the statute of limitations ran, the seaman filed a supplemental and amended complaint naming Corey Gardiner and Lege Consulting Services. The amendment will relate back to the timely filing of the complaint if the additional defendants knew or should have known that, absent some mistake, the action would have been brought against them during the ninety-day time period within which to serve defendants. The plaintiff argued that the added defendants knew or should have known they would be named because they have the same counsel as an original defendant, B&J Martin. It was B&J’s counsel who identified the added defendants in its discovery responses. Also, pursuant to a master service agreement, B&J was required to indemnify Rooster Oil and its agent, Lege Consulting, and employee, Gardiner. Concluding that the added defendants were not prejudiced, Judge Jay did not dismiss the defendants.
No federal jurisdiction under admiralty, OCSLA, or federal statutes for suit against oil companies for contributing to climate change. Mayor of Baltimore v. BP P.L.C., No. ELH-18-2357, 2019 U.S. Dist. Lexis 97438 (D. Md. June 10, 2019) (Hollander).
The Mayor and City Council of Baltimore brought suit in state court in Baltimore against 26 multinational oil and gas companies, alleging that they contributed to climate change and damages resulting therefrom. Two of the defendants removed the case on the basis that the claims were governed and preempted by federal common law and statutes, and that the court had original jurisdiction under the Outer Continental Shelf Lands Act and admiralty. After rejecting the arguments based on federal law and preemption, Judge Hollander addressed the OCSLA. Although the Fifth Circuit has interpreted OCSLA removal broadly, requiring only a but-for connection between the cause of action and the OCS operation and not requiring the plaintiff to invoke the OCSLA in its pleadings, Judge Hollander held that there was no basis to conclude that the City’s claims for injuries stemming from climate change would not have occurred but for the defendants’ extraction activities on the OCS. With respect to admiralty jurisdiction based on drilling and production from mobile drilling rigs, the complaint did not mention injuries caused by a vessel on navigable waters and instead complained of the defendants’ worldwide production, wrongful promotion, and sale of fossil fuels. That some portion of the production was from defendants’ vessels did not mean that the vessels themselves caused the City’s injuries. Therefore, Judge Hollander held that there was no admiralty jurisdiction and remanded the case to state court. As there was also an allegation pursuant to the Federal Officer Removal Statute, the remand order can be appealed to the Third Circuit.
Vessel operating common carrier waived right to enforce forum selection clause, but VOCC and NVOCC both granted summary judgment on package limitation. Global Oil Tools, Inc. v. Expeditors International of Washington, Inc., No. 16-16372 (E.D. La. June 10, 2019) (Ashe).
Global Oil Tools was in negotiations to sell a large number of tools and intellectual property to an overseas buyer, packed the tools and property into two shipping containers, and then contracted with Expeditors, a non-vessel operating common carrier, to ship the containers overseas from New Orleans. Expeditors then arranged for the ocean carriage by Hapag-Lloyd. Global delayed the shipment once but its second attempt to delay the shipment was not communicated to the stevedore, which loaded the goods on the vessel that carried the containers overseas. The sales transaction was never consummated, and the containers remained overseas with some damage to the cargo allegedly occurring in transit. The bill of lading issued by the NVOCC, Expeditors, contained a Himalaya Clause that foreclosed liability of anyone except Expeditors, and the court earlier dismissed the claims made by Global against the stevedore and VOCC, Hapag-Lloyd. That left Global’s claims against Expeditors and Expeditors’ claims against Hapag-Lloyd pursuant to the sea waybill issued by Hapag-Lloyd to Expeditors. Hapag-Lloyd then moved to enforce the mandatory forum selection clause from the sea waybill for the claim of Expeditors. Expeditors responded that Hapag-Lloyd had waived the right to assert that defense by substantially invoking the judicial process to litigate its motion for summary judgment on Global’s claims and that Expeditors was prejudiced because it could have invoked its own forum selection clause for the Western District of Washington. However, in order to have all the parties before a single tribunal and believing that Hapag-Lloyd had consented to going forward in federal court in Louisiana, Expeditors forwent filing a motion to transfer. Judge Ashe ruled that Hapag-Lloyd had waived its right to enforce the forum selection clause and then proceeded to address the motions for summary judgment of Expeditors to Global and Hapag-Lloyd to Expeditors seeking to invoke the package limitation of the Carriage of Goods by Sea Act that was incorporated into the bills of lading. After rejecting Global’s arguments that it was not given an opportunity to declare a higher value to avoid the package limitation and that the shipment of packages at the wrong time amounted to a deviation that would oust the defenses in the contract of carriage, Judge Ashe noted that where a container is used to consolidate goods and the container is stuffed by the carrier, the number of packages or shipping units stated on the face of the bill of lading is the number of packages or shipping units for COGSA’s $500 package limitation. As Global purchased and stuffed the containers and the face of the bill of lading listed two containers as the number of packages, Expeditors’ liability was limited to $1,000. Similarly, Hapag-Lloyd’s liability to Expeditors was limited to $1,000 pursuant to the sea waybill. Finally, although Expeditors informed Global that it had insurance for the cargo, that did not establish that Global had any first-party rights on the policy for which Global had not paid any premium.
Improper venue is different from inconvenient forum. Chase v. Folz, No. 9:19-cv-80476, 2019 U.S. Dist. Lexis 97626 (S.D. Fla. June 11, 2019) (Rosenberg).
The plaintiff and defendants entered into an oral agreement to form a partnership to acquire a vessel with each party owning a third and each party paying a third of the expenses. Contending that the defendant partners incurred extravagant and unnecessary expenses and misappropriated partnership funds, plaintiff partner filed an action in admiralty in the Southern District of Florida for partition of the vessel and for conversion and an accounting of expenses. The plaintiff argued that venue was proper because the plaintiff was residing in Palm Beach County and the vessel was regularly docked in St. Augustin and other marine centers on Florida’s eastern coast. Asserting that the defendants were residents of New York and that a substantial part of the events giving rise to this action occurred in New York, where the parties entered into the oral partnership agreement and where discussions about the agreement took place, the defendants argued that venue was improper in Florida. The court noted that venue in an in personam admiralty action is any court with personal jurisdiction over the defendants, and the defendants did not challenge that they were subject to personal jurisdiction in Florida. The court also noted that the defendants had not filed a motion to transfer venue on the ground of convenience of parties and witnesses, and that the defendants would have to carry the burden on that motion. As venue was proper, Judge Rosenberg ordered the defendants to answer the complaint.
Court denies transfer to Louisiana under Section 1404(a) for the convenience of the parties and witnesses. Pruitt v. Bruce Oakley, Inc., No. 18-8621, 2019 U.S. Dist. Lexis 97622 (E.D. La. June 11, 2019) (Fallon).
Pruitt was a seaman employed by defendant Jartran who was injured on Jartran’s vessel M/V CONCORDIA on the Arkansas River in Oklahoma. Pruitt is a Mississippi resident, Jartran is a Mississippi company headquartered in Mississippi, the vessel is homeported in Mississippi, and Bruce Oakley, parent company of Jartran, is headquartered in Arkansas. When Jartran filed suit in federal court in the Eastern District of Louisiana, the defendants moved to transfer the case to the Northern District of Mississippi for the convenience of the parties and witnesses. Plaintiff was initially treated for his injuries in Oklahoma, and thereafter in Mississippi. However, now that he is represented by counsel in Houston, Pruitt is being treated by physicians in Houston. The defendants submitted that none of the crew of the vessel were domiciled in Louisiana but remained employed by Jartran in Mississippi. Noting that the defendants bear the burden of identifying the witnesses they need and proving that the transferee court would be more convenient for them, Judge Fallon noted that the new treating doctors in Houston are closer to New Orleans than the Northern District of Mississippi and that the defendants had not identified where the crew witnesses resided, only that it was not in Louisiana. Although the only factors weighing in favor of Louisiana were that Jartran’s vessels do operate on the Mississippi River, which flows through the Eastern District of Louisiana, and parent company Oakley has an office in Louisiana, Judge Fallon denied the motion to transfer.
Intervenors in vessel seizure must share and reimburse custodia legis expenses; interlocutory sale ordered with pipe-laying equipment. Gulf Copper & Manufacturing Corp. v. M/V LEWEK EXPRESS, No. 3:19-cv-34, 2019 U.S. Dist. Lexis 97549, 2019 U.S. Dist. Lexis 101822 (S.D. Tex. June 11, 2019 and June 18, 2019) (Edison).
Gulf Copper arrested the LEWEK EXPRESS in Galveston seeking to recover $442,255 for berthing and mooring expenses and was appointed substitute custodian for the vessel. Gulf Marine and Trevaskis intervened to assert liens of $578,743.76 and $9,250,000. Gulf Copper then moved for a pro-rata apportionment of the custodia legis expenses it was incurring to maintain the vessel during the arrest. The motion raised four questions that were addressed by Magistrate Judge Edison. First, the intervenors objected to sharing the expenses incurred prior to their intervening to assert claims. However, Judge Edison held that the intervenors benefitted from the arrest and safekeeping of the vessel so they should share the expenses from the time of the arrest. Second, citing basic notions of fairness, Judge Edison held that the parties should share the expenses pro-rata and not per capita so that each party pays based on the size of its respective claim. Thus, Trevaskis will pay 90.0594% of the expenses compared to 4.3059% for Gulf Copper. Third, the intervenors objected to Gulf Copper’s charge of $4,114 as its daily docking fee when it was charging $2,057 to moor the vessel prior to its arrest. Gulf Copper explained that the lower rate was charged with the expectation of performing substantial work on the vessel, and once it was clear that the vessel owner had no intention of initiating any repair work, Gulf Copper increased the berthage rate to its published tariff rate of $4,114. As the intervenors did not identify any place where the vessel could be docked at a lower rate, Judge Edison held that the rate of $4,114 was reasonable. Finally, Gulf Copper asked the court to order the intervenors to immediately reimburse it for custodia legis expenses already incurred and thereafter to reimburse the expenses on a weekly basis. Agreeing with that argument, Judge Edison ordered the immediate reimbursement by intervenors of their respective percentages of the expenses to date and to make weekly reimbursements thereafter until the vessel is released. After resolving these issues, Judge Edison then addressed in the second opinion the lienors’ motion for interlocutory sale. The vessel owner sought additional time to try to release the vessel by bond or otherwise, but, in light of the fact that the vessel had been under arrest for more than four months, Judge Edison held that the owner had more than sufficient time and ordered the vessel sold on July 15, 2019. That left the question whether the vessel should be sold with Trevaskis’s pipe-laying equipment (as an appurtenance of the vessel). Travaskis argued that the equipment was not an appurtenance because there was other equipment that performed a similar function on board the vessel, so it was not essential to the vessel’s operation or mission. Judge Edison rejected this argument because equipment on a vessel can still be an appurtenance even though there is other equipment on board that performs a similar function. Similarly, the fact that the vessel was not actively engaged on a mission at the time it was arrested did not change the relation of the equipment to the pipe-laying vessel, nor did its ability to be moved on and off the vessel affect its status as an appurtenance as appurtenances include equipment that is readily removable. Finally, the fact that it was the intent of Trevaskis and the prior owner that Trevaskis retain ownership via an equipment lease agreement did not impute knowledge to third parties who provided services to the vessel without knowledge of Trevaskis’s undisclosed intent. Consequently, the sale will include the pipe-laying equipment.
Parent company’s letter of undertaking as security for counterclaim for wrongful arrest of vessel is not a maritime contract that permits maritime attachment. Advantage Sky Shipping LLC v. ICON Equipment & Corporate Infrastructure Fund Fourteen Liquidating Trust, No. 19-cv-5065, 2019 U.S. Dist. Lexis 100184 (S.D.N.Y. June 14, 2019) (Furman).
The subsidiaries of the defendant trust seized the plaintiff’s vessel in South Africa in a maritime dispute, and the plaintiff counterclaimed for wrongful arrest and obtained security from the trust in the form of a letter of undertaking that guaranteed the subsidiaries’ liability. The plaintiff then filed a Rule B attachment action against the trust in New York federal court directed at funds allegedly held by the trust in New York. Although the underlying claims may have been maritime, Judge Furman held that the guarantee agreement was not and dismissed the attachment action for lack of subject matter jurisdiction (he also found that the trust was “found” within the district so that attachment was not available under Supplemental Rule B). Finding a difference between meritless arguments and sanctionable arguments, Judge Furman declined to impose sanctions for the attachment.
Fact questions on negligence and unseaworthiness preclude granting summary judgment to seaman injured when a line popped. Parker v. John W. Stone Oil Distributors, L.L.C., No. 18-3666, 2019 U.S. Dist. Lexis 99991 (E.D. La. June 14, 2019) (Fallon).
Parker was injured while serving as a tankerman on defendant’s M/V PRESAGER when a co-worker pulled on a face wire and a line popped, causing a shackle to fall and hit Parker on the head. Parker sought summary judgment that the defendant was negligent, the vessel was unseaworthy, and he was not guilty of contributory negligence, citing the testimony of the captains that the line was deteriorated to the point that it should have been taken out of service. In view of the defendant’s contention that the accident was caused by Parker standing in an unsafe position in violation of the defendant’s safety rules and that Parker had not thoroughly inspected the line before using it, Judge Fallon found that there were issues to be resolved as to whose negligence caused the accident. Although Judge Fallon did conclude that the rope was in an unseaworthy condition, he believed that there were fact questions to be resolved on whether the unseaworthy condition was a proximate cause of the injuries.
Letter of indemnity amends bunker supply contract, and its forum selection clause provides jurisdiction in the United States. Stralia v. Praxis Energy Agents DMCC, No. 18-cv-4150, 2019 U.S. Dist. Lexis 100181 (S.D.N.Y. June 14, 2019) (Schofield)
The owner and operator of the M/V GEMA (Plaintiffs) entered into a bunker supply contract with Praxis to supply bunkers to the vessel at the Port of Fujairah, identifying World Bunker Suppliers, understood to be World Bunkering Traders (WBT), as the supplier. Praxis subcontracted with International Fuel Suppliers (IFS), which subcontracted to WBT, and WBT supplied the bunkers to the vessel. As a result of an unrelated dispute between Praxis and IFS and/or WBT, Plaintiffs withheld payment to IFS/WBT until Praxis and Plaintiffs entered into a Letter of Indemnity by which Praxis promised to indemnify Plaintiffs in the event of arrest of the vessel in exchange for Plaintiffs’ agreement to pay Praxis’ invoice. Plaintiffs then paid the invoice, but Praxis did not resolve its dispute with IFS/WBT, and IFS arrested the vessel at Fujairah. Plaintiffs ultimately paid IFS $18,720 and incurred costs defending the proceedings and suffered lost profits from the arrest. Plaintiffs then brought this suit against Praxis in federal court in New York pursuant to a forum selection clause in the Letter of Indemnity. Praxis contended that the LOI was invalid because there was no consideration—Plaintiffs agreed to pay the amount owed under the bunker contract in exchange for Praxis’ agreement to defend and indemnify the Plaintiffs. Judge Schofield held that this argument failed because the LOI was an amendment of the bunker supply contract, and no additional consideration is needed to modify an existing contract. Additionally, Judge Schofield rejected Praxis’ challenge to the jurisdiction of the court as the forum selection clause supplied the court with personal jurisdiction over the parties. As the bunker supply contract and its amendment (LOI) were maritime, the court had subject matter jurisdiction. Judge Schofield then reviewed the causes of action that were alleged and declined to dismiss the Plaintiffs’ cause of action for Praxis’ failure to indemnify under the LOI as to the claims and demands by both IFS and WBT, notwithstanding that IFS was not referenced in the LOI.
Welder employed by contractor for several shipowners fails the duration element of the seaman status test. NCL (Bahamas) Ltd. v. Kaczkowski, No. 18-23321, 2019 U.S. Dist. Lexis 100797 (S.D. Fla. June 14, 2019) (Altonaga).
Kaczkowski was employed by Intec Maritime Offshore Services as a welder, working for 15 different shipowners on 41 different vessels. He was injured on the NORWEGIAN SKY, owned by NCL (Bahamas). Out of his 1,621 days working for Intec, he spent 201 days working on vessels owned by NCL (Bahamas) or owned by its parent company. After Kaczkowski filed a suit seeking to recover based on the Jones Act and general maritime law, NCL filed this declaratory judgment action in federal court seeking a declaration that Kaczkowski was not entitled to assert seamen’s claims under the Jones Act and general maritime law. The issue was the temporal prong of the seaman status test, whether his connection to a vessel or identifiable fleet of vessels was substantial in duration, using the 30% rule of thumb enunciated by the Supreme Court in Chandris. As he claimed he was working as a borrowed servant for NCL, Kaczkowski argued that the only time that was relevant to the 30% calculation was the period of his employment for NCL at the time he was injured. NCL argued that the court should view Kaczkowski’s entire employment with Intec in determining whether he satisfied the duration element, relying on the Wilcox case from the Fifth Circuit that did not adopt a bright-line rule, but which did focus on the work performed in the worker’s entire employment with his nominal employer in that case. Following that reasoning, Judge Altonaga considered both Kaczkowski’s employment on Norwegian ships and that employment in relation to his employment to Intec. As he worked 12.4% of his time for Norwegian vessels, far below the 30% threshold, and that work was both on vessels and on land, Judge Altonaga concluded that Kaczkowski did not establish that his work was substantially connected to a vessel or fleet of vessels in navigation.
Seaman on public vessel of the United States has no right to penalty wages. Reid v. United States, No. 17-205C, 2019 U.S. Claims Lexis 657 (Ct. Fed. Claims June 14, 2019) (Griggsby).
Reid sought increased pay and penalty wages for his temporary assignment as a wiper while serving as a civilian employee on the USNS DREW, a public vessel under the control of the Military Sealift Command. Agreeing with the United States that the Penalty Wage Statute does not apply to public vessels like the DREW, Judge Griggsby then addressed the wage claim under the favorable abuse-of-discretion standard and held that the MSC did not abuse its discretion in paying Reid at the rate of a Supply Utilityman for all regular and overtime work performed while he served on the DREW.
Welder on jack-up rig on OCS is not a seaman, and the LHWCA is his exclusive remedy. Sanchez v. Enterprise Offshore Drilling LLC, No. H-19-110, 2019 U.S. Dist. Lexis 101436 (S.D. Tex. June 18, 2019) (Rosenthal).
Sanchez was injured while performing welding work on a drilling rig jacked up on the outer Continental Shelf. The defendants removed his Jones Act suit, contending that he was not a seaman, and Judge Rosenthal denied a motion to remand, concluding that Sanchez failed the nature element of the seaman status test (April 2019 Update). His employer then moved for summary judgment that the LHWCA provided his sole remedy against his employer, and Judge Rosenthal granted the motion. The nature element of the seaman status test focuses on whether the worker’s duties take him to sea, and Judge Rosenthal evaluated whether his connection to the vessel regularly exposed him to the perils of the sea. Sanchez worked on two jacked up rigs, and his duties did not include navigating the rigs or work on them while they were actually in navigation. His work was only while they were jacked up out of the water and not subject to the waves or tides. Therefore, Judge Rosenthal dismissed the Jones Act and general maritime claims as a seaman.
$56, not $103, is reasonable rate for maintenance and cure. Wilcox v. Hamilton Construction, L.L.C., No. C18-1756, 2019 U.S. Dist. Lexis 101910 (W.D. Wash. June 18, 2019) (Coughenour).
Wilcox was injured while working as a seaman for Hamilton, and Hamilton paid him maintenance at the rate of $56 per day. Wilcox filed a motion seeking to raise the rate to $103 per day based on his monthly living expenses of $3,100, which included his $2,300 monthly mortgage payment for the house he shared with his wife. Although this evidence was sufficient to establish a prima facie case for his expenses, Hamilton established that the average living expenses for a single seaman in the area were $56 per day. Judge Coughenour noted that the seaman may include his actual mortgage payments when calculating his living expense, but he is not entitled to reimbursement of those costs if they exceed the costs of an average seaman living alone. As Wilcox’s expenses exceeded the average costs of a seaman living alone, he was not entitled to recover his actual expenses, and his motion was denied.
Oral contract sufficient for lien and arrest of vessel. Shelter Cove Marina, Ltd. v. M/Y ISABELLA, No. 19-cv-1106, 2019 U.S. Dist. Lexis 102832 (S.D. Cal. June 18, 2019) (Burns).
The saga of the ISABELLA continues. The vessel was arrested and sold for failing to pay Shelter Cover wharfage fees, and the purchasers agreed with Shelter Cove that they would make repairs on the vessel and the marina would allow the vessel to remain moored at a reduced rate. However, the new owners did not make the repairs and stopped paying the wharfage, resulting in Shelter Cove’s second request to arrest the vessel. The only question for Judge Burns was whether the necessaries (wharfage) were provided on the order of the owner or a person authorized by the owner as there was no written contract between the owners and the marina. However, Judge Burns found that element to be satisfied as the parties apparently operated under an oral agreement demonstrated by the fact that the owners paid wharfage fees for ten months and implicitly consented to providing the dockage (leaving the vessel at the dock). Consequently, Judge Burns ordered the arrest of the vessel and the appointment of the marina as substitute custodian.
Sufficient allegations to support punitive damages. In re Bowman, No. 2:18-cv-71, 2019 U.S. Dist. Lexis 101216 (M.D. Fla. June 18, 2016) (Steele).
This case arises from a collision between two vessels near the mouth of the Caloosahatchee River in Florida. Bowman filed a petition for limitation of liability, and the owner of the other vessel filed a claim in the limitation action that sought punitive damages, asserting that Bowman operated his vessel in an unsafe and reckless manner without proper training, in a no-wake zone at a high rate of speed while intoxicated, and then after colliding with the claimant’s vessel, Bowman watched and did nothing as claimant struggled to remove himself from the wreckage. Further, instead of calling for help, he took time to clean the vessel, including alcoholic beverages before transporting claimant to the hospital. The court found at the initial stage of proceedings that the allegations stated a plausible claim for punitive damages.
ADA claims against vessel dismissed for failure to allege a disability. Miller v. Balearia Caribbean Ltd., No. 18-62639, 2019 U.S. Dist. Lexis 101185 (S.D. Fla. June 18, 2019) (Scola).
Miller was injured as a passenger on defendant’s ferry when she slipped on a substance on the deck of the lavatory. She filed the suit against the ferry and its owner based on the Americans with Disabilities Act and for negligence. The vessel moved to dismiss the allegations against it on the ground that the complaint was not verified, that the vessel, in rem, owes no legal duty to its passengers to support a negligence claim, and the vessel, an inanimate object, is not liable under the ADA. The vessel and owner both moved to dismiss the ADA claims on the ground that Miller did not allege any disability. Judge Scola denied the in rem dismissal for lack of verification because Miller had submitted a signed verification page. Judge Scola also denied the dismissal of the in rem negligence claim as there is a maritime lien for an in rem negligence claim against the vessel. However, Judge Scola did dismiss the ADA claims for failure to allege a disability (HIPAA does not relieve the plaintiff from the duty to plead facts about her entitlement to relief) and denied leave to amend as there had already been one motion to dismiss on this basis. Finally, Judge Scola struck Miller’s jury demand as she only asserted admiralty jurisdiction.
Contract Disputes Act bars dredging contractor’s cross claim against the Corps of Engineers. Rich Marine Sales, Inc. v. United States, No. 1:18-cv-00823, 2019 U.S. Dist. Lexis 101819 (W.D.N.Y June 18, 2019) (Wolford).
The owners of a marina on the Black Rock Channel along the Niagara River in Buffalo brought suit against a dredging company and the United States asserting that overdredging of the Channel caused its bulkhead to collapse into the Channel, and the dredging company cross claimed against the United States for indemnity and contribution. The United States moved to dismiss the cross claim for lack of compliance with the Contract Disputes Act, which requires a contract claim against the United States first be submitted to a contracting officer. The dredging company responded that the indemnity and contribution claim arose not from the dredging contract but from the tort claim against the parties. Judge Wolford disagreed, stating that if the United States were to be liable to the dredging company, it would be for breaching its contractual duties in failing to provide proper specifications, planning, scoping, or other information that the dredging company needed for the operation. As the CDA’s exhaustion provisions constituted a jurisdictional bar to the court’s subject matter jurisdiction, Judge Wolford dismissed the cross claim for lack of jurisdiction.
Harter Act voids exculpatory clause in bill of lading for loss of container prior to loading. Great American Insurance Co. v. Seaboard Marine, Ltd., No. 1:18-cv-21346, 2019 U.S. Dist. Lexis 101517 (S.D. Fla. June 18, 2019) (King).
This case involves the loss of a container of frozen seafood during transportation from Costa Rica to New York and final delivery in New Jersey. The container was trucked to Seaboard’s container yard near Puerto Limon and then departed for the port to be loaded onto the ANGELINA. The container was lost in the area between Seaboard’s container yard and the port (known as the “carousel”). Seaboard sought to invoke the exculpatory clause in its bill of lading for acts of thieves and hijacking. The bill of lading also contained a provision invoking the Carriage of Goods by Sea Act beyond tackle-to-tackle and including the time before loading on to the vessel. The subrogated insurer for cargo argued that the exculpatory clause was voided by the Harter Act, which applies to the period before loading and after custody is transferred to the carrier. Judge King agreed, rejecting cases from courts outside the Eleventh Circuit that have limited the application of the Harter Act during the inland phase of multi-modal transportation, and held that the carrier would be subject to the burden-shifting provisions of the Harter Act under which the carrier would have to show that it was not at fault. Although the bill of lading did incorporate COGSA for the period before loading, Judge King noted that the courts have allowed the incorporation of COGSA to the extent that it does not conflict with the Harter Act. As the exculpatory clause was void under the Harter Act, the incorporation of COGSA did not save the clause from its invalidity under the Harter Act.
Who is liable for breakaway of barges on the Mississippi River? M/V ADMIRAL BULKER v. United Bulk Terminals Davant, No. 16-16215, 2019 U.S. Dist. Lexis 102435 (E.D. La. June 19, 2019) (Ashe).
22 barges owned by Ingram and Canal broke away from United Bulk Terminals’ barge fleeting facility in the Mississippi River after a mooring line connecting 15 barges to a buoy parted following the passage of a northbound vessel and a southbound vessel. The drifting barges collided and allided with several vessels, resulting in numerous claims. This opinion involves three motions for summary judgment. Ingram, as owner of the barges, argued that it delivered the barges in a seaworthy condition to the fleeter, UBT, and could not be held liable for the breakaway, and Judge Ashe agreed. The two passing vessels also moved for summary judgment. The last vessel to pass the barges, the southbound vessel, argued that there was no evidence that its wake was unusual or excessive and that a presumption of fault exists against the fleeter as custodian of moored vessels that broke away. The northbound vessel argued that it passed the barges 40 minutes before the breakaway, 35 minutes before the southbound vessel, and could not have been the cause. UBT opposed both motions and sought to invoke the Pennsylvania Rule’s presumption of causation on the passing vessels. Judge Ashe also noted the presumption of negligence when a passing vessel’s wake causes damage to a moored or anchored vessel. All of the parties presented evidence regarding fault and causation while invoking the presumptions, and Judge Ashe held that application of the presumptions in this case may be said to cancel each other out. Faced with the disputed evidence, Judge Ashe then denied the motions of both vessels.
Claimant must replead claims under the Louisiana Products Liability Act and for redhibition. In re Crosby Marine Transportation, LLC, Nos. 17-14023, 18-04136, 2019 U.S. Dist. Lexis 102431 (E.D. La. June 19, 2019) (Ashe).
This case arises from an allision between a recreational vessel and a tug and tow that was moored against the bank of Bayou Segnette in Jefferson Parish, Louisiana. The owner/operator of the tug filed a petition for exoneration/limitation of liability, and, after the Louisiana Department of Wildlife and Fisheries determined that the configuration of the navigation light on the recreational vessel may have obscured the driver’s vision, the owner/operator of the tug filed a third-party claim against the manufacturers and seller of the recreational vessel, raising claims under the Louisiana Products Liability Act, negligence, and redhibition. As the third-party complaint did not include any factual detail to support the recovery under the LPLA other than to allege that the recreational vessel was unreasonably dangerous in design because of the placement of the light, Judge Ashe granted a motion for more definite statement to allege factual details to support the LPLA claim. Judge Ashe also noted that the LPLA preserves redhibition claims only to the extent the claimant seeks to recover the value of the product or other economic loss and ordered a repleading of the redhibition claim accordingly.
No personal jurisdiction over cruise ship excursion company for injury in Belize. Bonck v. Carnival Corp., No. 18-23991, 2019 U.S. Dis. Lexis 103461 (S.D. Fla. June 19, 2019) (McAliley).
Bonck was injured on a tour in Belize operated by Exotic Shore Excursions under contract with Carnival. In order to obtain personal jurisdiction over Exotic, which is incorporated and operating in Belize, Boncbellebellek invoked the clause in the contract between Exotic and Carnival that Exotic consented to jurisdiction of the courts of the Southern District of Florida in the event of any lawsuit in which Carnival is a party and which is related to or arising from the shore excursion or contract. Magistrate Judge McAliley noted that another case from the Southern District of Florida had upheld jurisdiction against a foreign excursion contractor based on a similar clause because the passenger was an intended third-party beneficiary of the excursion contract. However, in this case, the passenger did not claim status as a third-party beneficiary of the contract, arguing that it was unnecessary because Exotic had voluntarily waived its right to raise the defense of personal jurisdiction pursuant to the agreement. As the complaint did not allege the requirements necessary to satisfy the Florida statute providing for jurisdiction, Magistrate Judge McAliley recommended that the complaint be dismissed against Exotic for lack of personal jurisdiction with leave given to amend the complaint to allege the requirements necessary to comply with the Florida statute.
Suits by Back-End Litigation Option plaintiffs, bringing claims against BP for later-manifested physical conditions, dismissed for failure to establish causation. Jarquin v. BP Exploration & Production Inc., No. 18-9572, 2019 U.S. Dist. Lexis 103296 (E.D. La. June 20, 2019); Rabalais v. BP Exploration & Production Inc. No. 18-9718, 2019 U.S. Dist. Lexis 103297 (E.D. La. June 20, 2019) (Africk).
These cases involve the Deepwater Horizon Medical Benefits Class Action Settlement Agreement, which includes a Back-End Litigation Option for plaintiffs who were exposed to oil, dispersants, and contaminants in connection with the Deepwater Horizon spill and cleanup. Class members are allowed to bring BELO suits against BP for later-manifested physical conditions without having to show fault of BP (but they do have to prove causation). The only evidence in response to BP’s unopposed motions for summary judgment was the reports of examining physicians, and Judge Africk held that the reports were not competent summary judgment evidence. Therefore, he dismissed these BELO complaints with prejudice.
Cruise line not liable for conduct of excursion company. Doria v. Royal Caribbean Cruises, Ltd., No. 1:19-cv-20179, 2019 U.S. Dist. Lexis 104354 (S.D. Fla. June 20, 2019) (Williams).
Enid Doria was injured on an excursion in Cozumel while ashore from Royal Caribbean’s HARMONY OF THE SEAS. He brought suit against the excursion company and against Royal Caribbean alleging misleading advertising, negligent misrepresentation, negligence, negligence based on apparent agency or agency by estoppel, joint venture between the defendants, third-party beneficiary, and breach of fiduciary duty. Royal Caribbean moved to dismiss the allegations, and Judge Williams agreed that the counts based on joint venture, third-party beneficiary, and breach of fiduciary duty should be dismissed with prejudice. The terms of the Tour Operator Agreement between the defendants refuted the theories that there was a joint venture or that passengers of Royal Caribbean were third-party beneficiaries to the contract. As the maritime law affords a duty of reasonable care to passengers (Kermarec), there is no fiduciary duty imposed on the cruise line. The allegations of notice to the cruise line to support the negligence claim contained no specificity with respect to the dangerous condition of the excursion, so Judge Williams required the plaintiff to replead the actual or constructive notice of the dangerous conditions of the excursion. Judge Williams did find that the allegations of negligence were sufficiently pleaded, the claim for apparent agency was sufficient at the motion to dismiss stage, but that count was dismissed for repleading of the negligence portion. Finally, the allegations of misleading advertising and misrepresentation required a heightened pleading standard that would have to be satisfied with an amended pleading.
Indemnity and contribution claim prevents lifting the stay in limitation action. In re Griffith, No. 3:19-cv-00053, 2019 U.S. Dist. Lexis 103581 (S.D. Tex. June 20, 2019) (Edison).
Paul Santillan was injured on a vessel on a chartered fishing trip that was operated by Michael Coleton Griffith. Michael Douglas Griffith, Jr. and Lori Griffith, as owners of the vessel, and Michael Coleton Griffith, individually and D/B/A Get Fish Charters, as owner pro hac vice of the vessel, filed a petition for limitation of liability. As the only claimant, Santillan filed the appropriate stipulations and moved to lift the stay so he could proceed with the liability and damage issues before a jury in state court against Galveston Fishing Charter Co., Galveston Fishing Charter, LLC, and Island Mode, LLC. Those entities then filed a claim in the limitation action for indemnity and contribution against the petitioners who filed the limitation action and would not sign the stipulations. Recognizing that the Fifth Circuit requires that all claimants sign the stipulations when there are multiple claimants, even when the claims are for indemnity and contribution, Magistrate Judge Edison denied the request to lift the stay.
Late claimant allowed in limitation action and stay lifted based on stipulation of claimants. In re Hornblower Fleet, No. 16-cv-2468, 2019 U.S. Dist. Lexis 104454 (S.D. Cal. June 21, 2019) (Miller).
This limitation action arose from the allision between the M/V ADVENTURE HORNBLOWER and a pier in San Diego. It began with 12 claims in the limitation action, and Judge Miller defaulted anyone who had not filed a claim and the case proceeded until a week before trial. At that time, there was only one set of claimants left, and they moved to lift the stay to allow them to proceed with their claim outside of the limitation action. While the parties worked to complete the dismissal of the other claims, a new claim was filed by Preski, a worker on the vessel at the time of the allision, long after the close of discovery and two years after entry of defaults. Preski claimed that she had not received actual notice of the limitation action, but Judge Miller noted that actual notice is only required to persons known to have made a claim, not to possible claimants, and the constructive notice that was provided was sufficient. However, at this late stage, the last set of claimants and Preski filed a joint stipulation that they would not seek to enforce any judgment that would require the vessel owner to pay damages in excess of the limitation fund. That joint stipulation saved her claim as Judge Miller agreed to lift the stay so the claimants could proceed with their claims outside of the limitation proceeding, resulting in no prejudice to the shipowner from the late filing of the claim.
Death on the High Seas Act is exclusive remedy for cruise ship passenger’s death on excursion in Honduras. Nichols v. Carnival Corp., No. 1:19-cv-20836, 2019 U.S. Dist. Lexis 105153 (S.D. Fla. June 21, 2019) (Ungaro).
The surviving spouse of Larry Nichols brought suit in federal court in Miami for his death on a sailing and snorkeling excursion from the vessel BREEZE in Roatan, Honduras. Based on Carnival’s marketing and sale of the excursion, Nichols’ spouse brought the suit against Carnival alleging negligence, negligent hiring and retention, apparent agency for the excursion company, negligence based on a joint venture between Carnival and the excursion company, and third-party beneficiary status to the contract between Carnival and the excursion company. Carnival moved to dismiss the complaint, and, before addressing the sufficiency of the pleading, Judge Ungaro ruled that the Death on the High Seas Act was the plaintiff’s exclusive remedy for the claims. Decedent’s injury began while he was snorkeling off the shore of Honduras, and plaintiff alleged that Carnival’s negligence continued during his medical care thereafter and ashore. However, DOHSA applies to deaths beyond state waters, even though the decedent’s death is on land. Therefore, DOHSA provided the exclusive remedy for plaintiff, and her damages were limited to pecuniary losses. Applying the maritime standard for recovery that Carnival owed a duty of reasonable care under the circumstances, Judge Ungaro noted that the plaintiff would have to plead and prove actual or constructive notice of the dangerous conditions that were pled in a conclusory fashion by the plaintiff. Therefore, she dismissed the complaint without prejudice for each element of each cause of action to be specifically identified with supporting facts.
Passenger’s complaint admits that it should be dismissed. Kissinger v. Carnival Corp., No. 1:19-cv-22203, 2019 U.S. Dist. Lexis 107021 (S.D. Fla. June 24, 2019) (Ungaro).
The federal complaint of a passenger who brought a claim against the cruise line for an injury on its vessel was brought at law and in personam, not in admiralty, and took the unorthodox approach of asserted that the district court lacked jurisdiction to hear the case. As there was no diversity between the parties and the plaintiff did not allege admiralty jurisdiction, Judge Ungaro dismissed the case without prejudice.
Improper stipulations prevent lifting the stay in limitation action. In re Belle Chasse Marine Transportation Inc., No. 18-9958, 2019 U.S. Dist. Lexis 105586 (E.D. La. June 25, 2019) (Vance).
After a grounding in the Mississippi River, Carnell Pendleton filed an action against the vessel owner in state court in Jefferson Parish, Louisiana, and the vessel owner filed a limitation action in federal court. After the time had come for the filing of claims and only Pendleton had filed a claim, he moved to remand or lift the stay against his claim, asserting that he believed that the value of his claim did not exceed the value of the vessel. As that was not a binding stipulation that his claim did not exceed the limitation amount and he did not file proper stipulations protecting the owner’s limitation rights, Judge Vance denied the motion.
Conflicting declarations prevent summary judgment in in dispute over unpaid shipping invoices. Coastal Transportation, Inc. v. East West Seafoods L.L.C., No. C17-1555, 2019 U.S. Dist. Lexis 107960 (W.D. Wash. June 27, 2019) (Robart).
This case involves a dispute over two shipments of bait. Coastal contended that it shipped the bait for EWS, and EWS contended that it was only the drop-off point for shipments for Hoppe Fisheries. When EWS filed a motion for summary judgment, supported by two declarations, and Coastal responded with two contradicting declarations, Judge Robart denied the motion based on the conflicting facts that were presented.
From the state courts:
Motion to dismiss is not the vehicle to assert the seaman was not your employee. Florescu v. Royal Caribbean Cruises, Ltd., No. 3D17-2110, 2019 Fla. App. Lexis 8708 (Fla. App. 3d Dist. June 5, 2019) (Fernandez).
Florescu brought a seaman’s action against Royal Caribbean Cruises for failure to provide maintenance and cure, and the cruise line responded with a motion to dismiss for failure to state a cause of action because Florescu was not employed by Royal Caribbean, attaching her employment contract with a contractor of Royal Caribbean. The dismissal of the complaint was reversed because in considering a motion to dismiss the trial court is limited to the four corners of the complaint, which are assumed to be true. As her actual employment was not relevant to this inquiry, the case was remanded where Royal Caribbean will presumably file a motion for summary judgment.
Land-based boat mechanic is not a seaman. Sagarese v. City of New York, No. 9538, 156846/14, 2019 N.Y. App. Div. Lexis 4459 (N.Y. App. Div. 1st Dept. June 6, 2019) (per curiam)
In a brief opinion, the Appellate Division of the New York Supreme Court affirmed the summary judgment that a land-based boat mechanic for the New York Police Department Harbor Unit was not a seaman under the Jones Act.
Seaman presents malpractice claim for failure to disclose potential consequences of state workers’ compensation settlement. Marston v. Orlando, No. 18-P-358, 2019 Mass. App. Lexis 78 (Mass. App. June 25, 2019) (Blake).
Norris Marston suffered a severe brain injury while performing repairs on a light tower located approximately eight miles off the New Jersey coast. He engaged counsel from his local community in Massachusetts who brought a state workers’ compensation claim on his behalf. Following a conference, the judge denied the claim on the ground that Marston was a seaman, and the attorney filed an appeal. Before the hearing, the parties settled for a lump sum of $7,500, which was approved by the judge. Marston’s counsel then brought claims under the Jones Act, LHWCA, and OCSLA in federal court where the defendants raised the specter of the preclusion of the Jones Act claims due to the positions taken in the state compensation claim. At mediation, the parties settled for $200,000 plus the waiver of the workers’ compensation lien of $18,666.52. Marston then engaged new attorneys who filed a legal malpractice action against his former attorneys. Concluding that the $7,500 settlement did not finally adjudicate the issue of Marston’s status as a seaman (and that the seaman needed expert testimony to establish that the settlement was unreasonable), the judge dismissed the malpractice case. The appellate court disagreed. The issue whether the Jones Act claim was precluded by the settlement was not resolved in the federal proceeding before the case settled. Given the unsettled state of the law on the preclusion question, the attorneys had a duty to disclose the potential consequences to Marston before recommending that he accept the settlement (his new attorneys argued that the former attorneys forced the settlement in order to avoid the exposure for their own negligence). The failure to alert him to the uncertainty deprived him of the opportunity to assess the risk and was a basis for negligence.
Kenneth G. Engerrand
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It is a momentous decision which this Court is called on to make. Here are three States almost on the eve of war. It is the high province of this Court to interpose its benign and mediatorial influence. The framers of our admirable constitution would have deserved the wreath of immortality which they have acquired, had they done nothing else than to establish this guardian tribunal, to harmonize the jarring elements in our system. But, sir, if you do not interpose your friendly hand, and extirpate the seeds of anarchy which New-York has sown, you will have civil war. The war of legislation, which has already commenced, will, according to its usual course, become a war of blows. Your country will be shaken with civil strife. Your republican institutions will perish in the conflict. Your constitution will fall. The last hope of nations will be gone.
And, what will be the effect upon the rest of the world? Look abroad at the scenes which are now passing on our globe, and judge of that effect. The friends of free government throughout the earth, who have been heretofore animated by our example, and have held it up before them as their polar star, to guide them through the stormy seas of revolution, will witness our fall with dismay and despair. The arm that is every where lifted in the cause of liberty, will drop, unnerved, by the warrior’s side. Despotism will have its day of triumph, and will accomplish the purpose at which it too certainly aims. It will cover the earth with the mantle of mourning.
Then, sir, when New-York shall look upon this scene of ruin, if she have the generous feelings which I believe her to have, it will not be with her head aloft, in the pride of conscious triumph-‘her rapt soul sitting in her eyes;’ no, sir, no: dejected, with shame and confusion-drooping under the weight of her sorrow, with a voice suffocated with despair, well may she then exclaim,
”Quis jam locus, Quae regio in terris nostri non plena laboris!’ (Which is the quote from a weeping Aeneas at the end of his arduous struggles with Achate in the Aeneid, “What place, what region of the Earth is not filled with the stories of our hardships?”).
Closing oral argument of Attorney General William Wirt (the longest serving Attorney General in United States history) for Appellant, Thomas Gibbons, in Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).
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