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Staubley v. Electric Boat Corp., No. 10-3186 (2nd Cir. September 1, 2011) (Summary Order On Petition For Review)

Clyde Staubley sought review of a Benefits Review Board decision affirming an award issued by an administrative law judge (ALJ) under the Longshore and Harbor Workers’ Compensation Act (LHWCA), 33 U.S.C. §§ 901-950.  The ALJ had awarded LHWCA benefits to Staubley for a ten percent permanent impairment of his lungs due to work-related asbestos exposure.

Staubley argued in his petition for review that the ALJ erred by not taking judicial notice of the American Medical Association’s Guides to the Evaluation of Permanent Impairment when deciding his claim for benefits.

The United States Court of Appeals for the Second Circuit agreed with the Board on the judicial notice issue, namely that the ALJ most likely erred by not taking judicial notice of the Guides.

Because the LHWCA requires that a claimant’s permanent impairment be determined “under the [G]uides,” the court said, it stood to reason that an ALJ could rely on the Guides without the parties first introducing them into the record.

Even so, the court went on to explain, here the ALJ’s error was not prejudicial to Staubley’s case under the facts of record.  In particular, the ALJ’s decision not to credit a physician’s medical opinion was supported by substantial evidence irrespective of the ALJ’s failure to take judicial notice of the Guides.  Likewise, in her decision the ALJ had accounted for a certain variation in the standards employed by other expert physicians when they evaluated Staubley’s condition.  The court thus denied Staubley's petition for review.

For a free consultation, call a maritime accident lawyer at Arnold & Itkin LLP toll free at (877) 632-8168, or contact us using the form on this page. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

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The federal government continues in its plans to sell offshore oil leases in the Gulf of Mexico for the first time since the catastrophic destruction of the Deepwater Horizon drilling rig in April 2010.  The sale, scheduled to take place in New Orleans on December 14, 2011, is anticipated even as federal officials continue to mull proposed changes to safety regulations governing the oil industry.

The newly-announced lease offering makes available swaths of western Gulf parcels off the coast of Texas.  According to media reports, Interior Secretary Ken Salazar described the federal agency as comfortable with resumption of Gulf deepwater drilling in light of new and rigorous standards in place.  Still, the announcement has been met with skepticism in some quarters, as environmental advocates question whether safe drilling practices will prevail.  For its part, the American Petroleum Institute expressed cautious optimism but was less than enthusiastic about the announcement that minimum bids for deepwater leases would be significantly increased.

The bid package indicates that minimum bonus bids must be at least $25 per acre for blocks in water depths of less than 400 meters, or $100 or more for blocks in deeper waters.  According to the government, the previous minimum bid level of $37.50 per acre for deepwater blocks had been in place since 1999, when oil prices were near $20 per barrel.

Details of the Proposed Notice of Sale are available at the website of the Bureau of Ocean Energy Management, Regulation and Enforcement.

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Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, use the form on this page to contact a maritime attorney at Arnold & Itkin LLP for a free consultation, or call our maritime law office toll free at 866-222-2606.

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Lobegeiger v. Celebrity Cruises, Inc., No. 11-21620-CIV (S.D. Fla. Aug. 23, 2011) (Altonaga, J.)

Passenger Elise Lobegeiger was seriously injured at sea while aboard a Celebrity Cruises, Inc., vessel.  Lobegeiger had attempted to adjust the heavy back panel of a deck lounger when the panel crashed down onto her hand, severing her left index finger.  As a result of the injury, Lobegeiger was left with a permanent deformity.

Lobegeiger sued Celebrity Cruises and others in the United States District Court for the Southern District of Florida, where she alleged a variety of personal injury claims.  Celebrity and Royal Caribbean Caribbean Cruise Ltd. (Cruise Lines) moved to dismiss those portions of Lobegeiger’s claims that sought non-pecuniary damages in the form of pain and suffering, mental anguish, emotional distress, loss of capacity for enjoyment of life, and the like.  The Cruise Lines cited the “well settled” proposition that a personal injury claimant can only assert a claim under the general maritime law for pecuniary loss.

The federal district court identified two questions raised as to Lobegeiger’s damages demand:  whether she could recover for pain and suffering under general maritime law, and whether she could recover punitive damages.

The court answered the first question in the affirmative.  Simply put, it was undisputed that damages recoverable for pain and suffering were non-pecuniary damages that were properly awarded in maritime personal injury cases.  Such damages, despite being nominally non-pecuniary, were recoverable.  Thus Lobebeiger was entitled to seek recovery for her pain and suffering, mental anguish and emotional distress, inconvenience, and loss of capacity for the enjoyment of life.

It was more complicated, however, whether a passenger could recover punitive damages for personal injury under general maritime law.  In Atlantic Sounding Co., Inc. v. Townsend, 129 S. Ct. 2561 (2009), the Supreme Court indicated that punitive damages are available as damages in all actions under general maritime law absent a specific limitation to the contrary imposed by Congress.

As pertinent here, there was no congressional legislation to limit a passenger’s right to recover punitive damages in a personal injury action under general maritime law, the court wrote.  The court thus declared that a plaintiff may recover punitive damages under general maritime law, consistent with the common-law rule, where the plaintiff’s injury was due to the defendant’s “wanton, willful, or outrageous conduct.”  As a result, the court rejected the Cruise Lines’ attempt to preclude Lobegeiger from stating a claim for punitive damages, and she was entitled to do so if the evidence warranted.

Among separate issues, the court also addressed whether Celebrity might be held liable for the actions of its ship’s medical staff regarding their alleged negligence as to Lobegeiger’s treatment after her injury.  While the majority rule was that a cruise line cannot be held vicariously liable for the negligence of a ship’s doctor in the care and treatment of passengers, some courts had held it permissible for a court sitting in admiralty to hear vicarious liability claims premised on shipboard doctors’ negligence under the theory of apparent agency where cruise lines held out shipboard doctors to passengers as their agents.  The court in Lobegeiger’s case found that applying the notion of apparent agency was consistent with general maritime tort principles, assuming the necessary elements were satisfied.  The court went on to find that Lobegeiger adequately pled a claim for negligence against Celebrity under an apparent agency theory, with the result that she could go forward on her claim.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP using the form on this page, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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United States District Judge Carl Barbier recently issued a broad order on pending motions to dismiss in the multi-district litigation arising out of the April 2010 loss of the Deepwater Horizon oil rig. (In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010, MDL No. 2179 (E.D. La.))

The dismissal motions pertained to the court’s “B1” pleading bundle, which collects together over 100,000 individual claims for private economic loss and property damages.  The B1 pleading bundle “master complaint” asserts claims against BP defendants and Transocean defendants, among others.  The claims allege causes of action under the Oil Pollution Act of 1990 (OPA), various state laws, and general maritime law.

As described by the court, in their various motions the defendants sought to dismiss all claims brought pursuant to either general maritime law or state law, leaving only OPA-related claims.

In its extensive discussion resolving the dismissal motions, the court determined, among other things:

• The Deepwater Horizon was at all material times a vessel in navigation.
• Admiralty jurisdiction exists because the defendants' alleged torts occurred upon navigable waters of the Gulf of Mexico, disrupted maritime commerce, and the operations of the Deepwater Horizon bore a substantial relationship to traditional maritime activity.
• Outer Continental Shelf Lands Act (OCSLA) jurisdiction is also present because the casualty occurred in the context of exploration or production of minerals on the Outer Continental Shelf.
• Claims alleged under state law, whether statutory or common law, had to be dismissed because they were preempted by maritime law.
• General maritime law claims that did not allege physical damage to a proprietary interest had to be dismissed under the Fifth Circuit’s “Robins Dry Dock” rule, unless they fell into an exception for commercial fishermen. In addition, OPA claims for economic loss need not allege physical damage to a proprietary interest, the court said.
• OPA does not displace general maritime law claims against “non-Responsible” parties, while conversely, OPA does displace general maritime law claims against Responsible Parties, but only with regard to procedure (such as OPA’s presentment requirement).
• Presentment under OPA is a mandatory condition precedent to filing suit against a Responsible Party.
• There is no presentment requirement for claims against non-Responsible Parties.
• Notably, the court ruled that claims for punitive damages are available for general maritime law claimants against Responsible Parties and non-Responsible Parties.

Trial in the case is scheduled for February 2012.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, use the form on this page to contact a maritime attorney online at Arnold & Itkin LLP for a free consultationn or call our maritime law office toll free at 866-222-2606.

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The United States Coast Guard reports that two remotely operated vehicles deployed to the Macondo 252 well head in the Gulf of Mexico have confirmed there is no oil leaking from the well head.

According to the agency, as part of the investigation into recent reports of sheen observed in the vicinity of last year's BP Deepwater Horizon oil spill, two ROVs were deployed to survey the well head. The ROVs conducted a full survey of the well head and vicinity, looking for evidence of leaking oil. Additionally, a zoom lens was used to examine both the well head and the base of the well head to look for smaller, less obvious signs of leakage. The ROV also visited the two relief well sites. No evidence of leaking oil was found.

Experts from the Coast Guard, National Oceanic & Atmospheric Administration, BOEMRE, DOI, and representatives from BP, as well as the State On-Scene Coordinators for Louisiana and Mississippi, viewed the live feed from the ROVs and agreed that nothing shown from the ROVs indicated any sort of leak from the well head.

The video and data collected by the ROVs was to be verified for accuracy once the vehicles were retrieved.

The Deepwater Horizon, a massive offshore oil rig leased to BP PLC, was drilling southeast of Venice, La., in 5,000 feet of water when it exploded April 20, 2010, after a well blowout. While most of the 126-member crew were fortunate to escape from the burning oil rig before it sank into the Gulf of Mexico, eleven rig workers died and 30 others were seriously injured.  The accident also resulted in the largest marine oil spill in United States history.

To discuss a case with an experienced maritime lawyer, contact a maritime attorney online at Arnold & Itkin LLP, or call the maritime law office of Arnold & Itkin LLP toll free at 866-222-2606.

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A rig worker’s three-year hiatus from employment meant that his status as a seaman failed to carry over when he was injured while re-employed in off-vessel jobs.

Abram v. Nabors Offshore Corporation, No. 11-20166 (August 24, 2011) (per curiam) (unpublished)

In a summary calendar decision, the United States Court of Appeals for the Fifth Circuit affirmed a district court’s determination that a former seaman no longer qualified as such at the time he was injured while working for Nabors Offshore Corporation.

The evidence established that Ricky Abram worked for Nabors in various jobs on drilling rigs from 1994 until 2002, and again from 2005 until 2009.  The testimony of Abram and his co-workers showed that his first period of employment was on jack-up drilling rigs.  The testimony was silent as to whether he worked on those rigs from 2005 to 2009, his second period of employment.

Nabors, however, offered evidence supported by its personnel records which indicated that Abram did no work on vessels from 2005 to 2009.  That was the relevant time period, the court said.  In a prior case, for instance, the court had held that a mere four-month hiatus in employment was significant enough to require a separate evaluation of duties during a worker’s period of re-employment, for purposes of determining whether the employee qualified as a “seaman” when injured.

Because no evidence disputed the time periods and nature of Abram’s work in his 2005-2009 employment, he did not qualify as a seaman when he was injured.  Unfortunately for Abram, this ultimately meant the district court did not err in granting summary judgment for Nabors on his Jones Act, general maritime law claims for the injuries he suffered while on the job.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

If you have any questions regarding a maritime incident or have suffered a maritime injury, contact a maritime attorney online at Arnold & Itkin LLP for a free consultation, or call our maritime law office toll free at 866-222-2606.

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Houston maritime attorneys Kurt Arnold and Jason Itkin recently applauded an initiative to reduce deaths and injuries in the commercial shrimping industry by providing customized safety classes and training for Gulf shrimpers.

The program is the result of a partnership between the University of Texas Southwest Center for Agricultural Health, Injury Prevention and Education and the U.S. Coast Guard.

“We were gratified to learn of this partnership that is aimed at seeking ways to stem the tide of accidents and injuries among Gulf shrimp boat workers,” said Arnold, a founding partner of Arnold & Itkin LLP and an experienced Houston maritime accident attorney.

“We hope all Gulf shrimping firms will seek out this additional education and training for their working crews and managers,” Arnold said.

A study by the Southwest Center found that shrimping is the most dangerous job in commercial fishing. The Southwest Center’s director, Dr. Jeffrey Levin, reported drowning and becoming caught in machinery as the top two causes of commercial fishing deaths.

The outreach program, mentioned here earlier, has reached about 500 of the several thousand Gulf shrimp fishermen as of late July, according to the Associated Press.

“As maritime attorneys, we see the disabling injuries that are all too common among shrimpers and commercial fishermen of all kinds, as well as among other maritime crews,” said Itkin, a veteran Houston maritime injury lawyer and Arnold & Itkin LLP founding partner.

“Clearer communication and additional training is certain to be helpful. We applaud the partnership of the Southwest Center and the Coast Guard, and the initiative of those shrimpers who have already participated in the new program,” Itkin said.

Unfortunately, too many injuries and deaths on fishing boats are not the result of employee conduct but, rather, the result of boat owners’ and employers’ recklessness and negligence, Arnold said.

“When workers are injured because of negligence or recklessness, they or their families need to act quickly to contact attorneys who are well versed in maritime law, the Jones Act and other avenues for securing proper compensation for the costs, pain and suffering that catastrophic injuries entail,” Arnold said.

The maritime lawyers at Arnold & Itkin LLP, a Houston personal injury law firm, provide legal guidance on all aspects of maritime law and the benefits that offshore workers are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

Arnold & Itkin LLP handles maritime claims at port cities along the Gulf Coast in Texas, Louisiana, Mississippi and Alabama. The firm can be contacted toll free at (877) 398-4972 or using the firm's online form.

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Proposed legislation introduced last month by U.S. Representative Blake Farenthold, of Texas, seeks to amend federal maritime law to address what Rep. Farenthold believes is an outmoded restriction on the ability of foreign cruise ships to call at United States ports.

Under current law, the Jones Act (Section 27 of the Merchant Marine Act of 1920) generally restricts foreign-flagged, -built and -crewed vessels from steaming directly between U.S. ports.  Instead, in order to travel directly between domestic ports of call, cargo and passenger vessels must be U.S.-flag ships that were built in the United States and are owned by U.S. citizens or permanent residents.  As originally enacted, the Jones Act restriction was intended to protect and support the United States maritime industry.  It has come under criticism, however, by those who cite changed economic realities in the shipping industry.

Rep. Farenthold’s legislation, the Creating and Restoring U.S. Investment and Stimulating Employment Act (CRUISE Act)*, H.R. 2460, takes aim at perceived barriers to tourism-based economic development by allowing “operation of foreign-flag cruise ships in the coastwise trade of the United States.”  The bill would, in essence, exempt foreign-flag cruise ships from the Jones Act restriction against making consecutive calls at U.S. ports.

According to media reports, Farenthold notes that in 2009 the cruise industry generated some 15,000 jobs and revenues of $788 million in Texas via the state's sole port now servicing cruise ships, in Galveston.  The deepwater ports in Brownsville, Port Lavaca, and Corpus Christi are cited as other Texas ports that might benefit from receiving cruise ship visits if the changes proposed in the CRUISE Act are approved.

The Act would exclude a variety of vessels from its definition of exempted “passenger vessels.”  These would include public vessels, those owned or operated by a state or local government, and those used for transportation between particular places on a regular schedule.  The exclusions presumably address businesses such as domestic ferry operators, who have voiced concerns in the past in regard to Jones Act amendments that would open foreign shipping operations between domestic ports.

The CRUISE Act has been referred to the Committee on Transportation and Infrastructure.

For a free consultation regarding a maritime injury or other maritime claim, call a maritime accident lawyer at Arnold & Itkin LLP toll free at (877) 632-8168, or contact us online. Our maritime injury attorneys can advise you on all aspects of maritime law, including the Jones Act, the Longshore and Harbor Workers’ Compensation Act, the principle of maintenance and cure and the Death on the High Seas Act.

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The United States Coast Guard recently responded to a commercial shrimping vessel in distress off the Texas coast.  The prompt action by the shrimp boat's crew in summoning aid, and the Coast Guard’s fast and effective response, prevented the vessel from sinking some 14 miles out to sea.

The Coast Guard’s rescue operation began when a radio call from the Odin’s crew indicated that the ship was taking on water through its propeller shaft in the pre-dawn hours on Sunday morning.  A Coast Guard rescue helicopter was dispatched and reached the vessel within approximately 45 minutes.  Two de-watering pumps were lowered, along with a rescue swimmer.

The pumps reduced the water level inside the shrimping vessel sufficiently to allow it to stay afloat while it was towed back to port by a sister vessel.

The pilot of the Coast Guard’s rescue helicopter praised the Odin’s crew for its prompt call for immediate assistance.  “The crew of this boat did the right thing by using VHF-marine channel 16 to contact the Coast Guard early enough that it was still a controllable situation,” he said.

The dire situation facing the shrimping vessel Odin in the early morning darkness demonstrates yet again the substantial dangers that maritime workers face every day as they earn a living at sea.  The crew of the Odin is to be commended for acting quickly to summon aid; their prompt action may have avoided injury or loss of life, as well as loss of the vessel itself.

Arnold & Itkin LLP attorneys serve clients in Texas and throughout the nation, handling maritime injury and many other types of complex cases.

We provide free consultations, and we can advise you on all aspects of maritime law and the benefits you are entitled to under the Jones Act, the Death on the High Seas Act, the principle of maintenance and cure, or the Longshore and Harbor Workers’ Compensation Act.

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