Fifth Circuit Adopts Definition of “Terminal” for LHWCA Cases
Offshore Winds
by Douglas P. Matthews
4y ago
As noted by the court in International Matex Tank Terminals v. Director OWCP (Dwayne D. Victorian), No. 18-60662 (5th Cir. November 25, 2019) its decision was one of first impression addressing the situs of injury and whether a facility can be called a “terminal” as the term is used, but not defined, in 33 U.S.C. § 903(a). To have jurisdiction under the Longshoreman and Harbor Workers’ Compensation Act (LHWCA) 33 USC § 901 et. seq, a claimant must satisfy a dual test of status and situs. Furthermore, the Fifth Circuit has addressed situs as having both geographic and functional components. Cle ..read more
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Home Sweet Home In the LHWCA Danger Zone
Offshore Winds
by Douglas P. Matthews
4y ago
In Expeditors and Production Service Company, Inc. v. Director, OWCP (Garrick Spain), No. 18-60895 (5th Cir. Nov. 4, 2019)(not to be published)¹, the United States Court of Appeals for the Fifth Circuit affirmed the lower administrative rulings finding that an employee injured in his living quarters was, indeed, covered under the Longshore & Harbor Workers’ Compensation Act (LHWCA). Mr. Spain was employed by Expeditors and Production Service Company (Expeditors) to work for Anadarko Petroleum as a shipping and receiving dispatcher. He slipped and fell at a mobile home trailer provided by A ..read more
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Robert Stefani Quoted in The Advocate Explaining Unique Aspect of Maritime Bankruptcy
Offshore Winds
by Offshore Winds
4y ago
Maritime attorney and Offshore Winds contributor Robert J. Stefani is quoted in today’s Baton Rouge edition of The Advocate explaining a unique aspect of maritime bankruptcies. Stefani explains that much of what would usually be unsecured debt in a nonmaritime context may be secured via a maritime lien, depending on whether the vessels have an outstanding mortgage and the value of the vessels. Stefani has previously discussed maritime liens extensively for Offshore Winds. “I’ve been involved in cases where all the maritime lien claimants are paid 100 cents on the dollar and I’ve seen cases whe ..read more
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SCOTUS Precludes Punitive Damages for an Unseaworthiness Claim
Offshore Winds
by Douglas P. Matthews
4y ago
In Dutra v. Batterton, No. 18-266, the Supreme Court of the United States, on June 24, 2019, determined that punitive damages are not allowed for injured vessel crew members seeking remedies for vessel unseaworthiness. In addressing a split between the Ninth Circuit on one hand and the First, Fifth, and Eleventh Circuits on the other hand, the Supreme Court resolved the issue by applying its previous decisions in Miles v. Apex Marine Corp., 498 U.S. 19 and Atlantic Sounding Co. v. Townsend, 557 U.S. 404. In Miles, the Supreme Court indicated that it should look primarily to legislative enactme ..read more
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Personal Jurisdiction Over a Foreign Ship Manager: A Claim-By-Claim Analysis
Offshore Winds
by Douglas P. Matthews
4y ago
NOTE: This post was co-authored by William L. Pardue, a Loyola University New Orleans College of Law student who is spending part of his summer working at King & Jurgens.  Carmona v. Leo Ship Mgmt, Inc.; No. 18-20248, 2019 WL 2067296* (5th Cir. May 10, 2019). This Fifth Circuit decision addressing a court’s personal jurisdiction over a foreign company proceeds from the U.S. District Court for the Southern District of Texas. In 2014, Jose Carmona, a longshoreman, was injured when a bundle of pipes he was rigging for discharge from the hold of a vessel broke free and fell, injuring his ankl ..read more
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Delay at Your Peril
Offshore Winds
by Douglas P. Matthews
4y ago
The Ninth Circuit in Warren Iopa v. Saltchuk-Young Brothers, et al, (9th Cir. No. 17-70415, March 4, 2019) affirmed the lower courts’ denial of the claimant’s petition for attorney fees under LHWCA as being made untimely. In this case, Mr. Iopa was successful in obtaining benefits before an Administrative Law Judge (ALJ) for temporary disability. In the Order granting the disability payments, the ALJ recognized the claimant’s counsel right to have the employer pay his fees and costs and provided him with 21 days within which to file a fee petition. It was not until approximately 280 days later ..read more
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You Must Warn of Defect Even If You Did Not Make It
Offshore Winds
by Douglas P. Matthews
4y ago
In Air & Liquid Systems Corp., et al. v Devries, et al., No. 17-1104 (March 19, 2019) the U.S. Supreme Court held that a product manufacturer, in a maritime tort context, has a duty to warn when its product requires incorporation of a part that the manufacturer knows or has reason to know that the integrated part is likely to be dangerous for its intended uses and the manufacturer has no reason to believe that the product users will realize that danger. In this instance, the plaintiffs were two Navy veterans who were exposed to asbestos on ships and developed cancer. They sued companies th ..read more
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Explicit Designation of Vessels Key for Suppliers Navigating CIMLA
Offshore Winds
by Diana J. Masters and Chelsea C. Crews
4y ago
LIENING IN: Best Practices for Suppliers Navigating CIMLA – Part 2 This post is the second installment in a series examining the elements suppliers of maritime goods or services must prove to establish and enforce the supplier’s potential maritime lien under the Commercial Instruments and Maritime Liens Act (“CIMLA”), 46 U.S. Code § 31342 et. seq. Previously, we discussed examples of goods or services that constitute “necessaries.” This installment examines the requirement that the necessaries be provided “to a vessel.” Suppliers should pay particular attention to this element because it often ..read more
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Physical Supplier of Bunkers Lacks Standing to Challenge Validity of Assignment of Maritime Lien to ING Bank
Offshore Winds
by James D. Bercaw
4y ago
In NuStar Energy Services, Inc. v. M/V COSCO AUCKLAND, No. 17-20246 (5th Cir. Jan. 14, 2019), the U.S. Fifth Circuit concluded NuStar, the physical supplier of bunkers/marine fuel to the M/V COSCO AUCKLAND, lacked standing to appeal the district court’s ruling that O.W. Bunker Far East (S) Pte Ltd., the contract supplier of bunkers, had validly assigned its maritime lien against that vessel to ING Bank N.V. In line with its earlier decision of Valero Mktg. & Supply Co. v. M/V ALMI SUN, 893 F.3d 290, 295 (5th Cir. 2018) and other decisions of the Second, Ninth and Eleventh Circuits, the Fif ..read more
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It’s a Holiday Miracle — Ninth Circuit Follows the Country on Employer’s Defense
Offshore Winds
by Douglas P. Matthews
4y ago
In Sira Cruz v. National Steel and Shipbuilding Company; Peterson Industrial Scaffolding, Inc., Civil Action No. 17-55441 (December 19, 2018) (9th Cir.), a case that may only be noteworthy for practitioners in the Ninth Circuit, the Court applied a borrowed employee defense to a longshoreman’s claim against a third party. The defendant, in this personal injury case, was the borrowing employer of the plaintiff who was paid compensation under the LHWCA by her nominal employer. She then turned around to sue the defendant who then raised the borrowed employee defense. In a case of first impression ..read more
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